Stealing Isn’t a Crime When Police Do It

Civil asset forfeiture gives "highway robbery" a whole new meaning.

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Civil asset forfeiture gives “highway robbery” a whole new meaning.

NYT (“Police Use Department Wish List When Deciding Which Assets to Seize“):

The seminars offered police officers some useful tips on seizing property from suspected criminals. Don’t bother with jewelry (too hard to dispose of) and computers (“everybody’s got one already”), the experts counseled. Do go after flat screen TVs, cash and cars. Especially nice cars.

In one seminar, captured on video in September, Harry S. Connelly Jr., the city attorney of Las Cruces, N.M., called them “little goodies.” And then Mr. Connelly described how officers in his jurisdiction could not wait to seize one man’s “exotic vehicle” outside a local bar.

“A guy drives up in a 2008 Mercedes, brand new,” he explained. “Just so beautiful, I mean, the cops were undercover and they were just like ‘Ahhhh.’ And he gets out and he’s just reeking of alcohol. And it’s like, ‘Oh, my goodness, we can hardly wait.’ ”

Mr. Connelly was talking about a practice known as civil asset forfeiture, which allows the government, without ever securing a conviction or even filing a criminal charge, to seize property suspected of having ties to crime. The practice, expanded during the war on drugs in the 1980s, has become a staple of law enforcement agencies because it helps finance their work. It is difficult to tell how much has been seized by state and local law enforcement, but under a Justice Department program, the value of assets seized has ballooned to $4.3 billion in the 2012 fiscal year from $407 million in 2001. Much of that money is shared with local police forces.

The practice of civil forfeiture has come under fire in recent months, amid a spate of negative press reports and growing outrage among civil rights advocates, libertarians and members of Congress who have raised serious questions about the fairness of the practice, which critics say runs roughshod over due process rights. In one oft-cited case, a Philadelphia couple’s home was seized after their son made $40 worth of drug sales on the porch. Despite that opposition, many cities and states are moving to expand civil seizures of cars and other assets. The seminars, some of which were captured on video, raise a curtain on how law enforcement officials view the practice.

From Orange County, N.Y., to Rio Rancho, N.M., forfeiture operations are being established or expanded. In September, Albuquerque, which has long seized the cars of suspected drunken drivers, began taking them from men suspected of trying to pick up prostitutes, landing seven cars during a one-night sting. Arkansas has expanded its seizure law to allow the police to take cash and assets with suspected connections to terrorism, and Illinois moved to make boats fair game under its D.W.I. laws, in addition to cars. In Mercer County, N.J., a prosecutor preaches the “gospel” that forfeiture is not just for drug arrests — cars can be seized in shoplifting and statutory rape cases as well.

Quite obviously, police ought to be able to seize illegal goods, such as illicit narcotics, for use as evidence. And, after conviction for felonies, it’s perfectly reasonable to seize other assets, including houses and automobiles, purchased through criminal activity as a means of helping make victims whole. Beyond that, however, it’s difficult to construct a case as to why police ought to seize assets and keep the loot for themselves.

Like many extraconstitutional tools, including the infamous Racketeer Influenced and Corrupt Organizations (RICO) Act, civil asset forfeiture was initially conceived as a way to go after organized crime. Lawmakers, courts, and the public are all too happy to skirt the Bill of Rights for the worst criminals, especially when they’ve banded together in a way to makes proving their criminality using ordinary law enforcement techniques difficult. But, as night follows day, corrupting our laws to go after the special cases inevitably weakens the protection of ordinary citizens.

In the case of civil asset forfeiture, this path was even more predictable, since police directly profit from the corruption of the law. Initially, it at least had the laudable benefit of increasing their ability to fight ordinary crime through increased funding. By stealing the assets of presumed crime bosses and drug lords, they could increase staffing and buy better tools to further the public safety. Clearly, though, we’ve reached the point where the loot itself, not fighting crime, is the end game.

But, of course, we now have decades of precedent allowing the police to steal from people accused of criminal activity and putting the burden on the property holder to prove that they’re not criminals and that the asset was acquired using legally obtained funds. Most victims of police theft don’t have the resources to fight back.

Even in the cases where the victim in fact committed a crime, it’s not obvious why the police ought to be able to confiscate property that did not result from their criminal activity. The punishment for, say, driving under  the influence of alcohol should be that provided in the applicable statute. The notion that the police ought to also be able to steal their car is just bizarre.

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FILED UNDER: Crime, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Todd says:

    These type of laws are a perfect example of what’s wrong with America recently. However, I don’t think it’s as simple as saying that police departments are inherently corruptible. Without making excuses for some of the more reprehensible actions in many of these cities, I do think we have to place some blame on our collective resistance these-days to funding even vital public services such as schools, roads, fire and police. When people demand lower and lower taxes, but high levels of services, cities still have to find ways to pay for those services. This is the kind of stuff that results. And not surprisingly, most citizens are fine with it as long as they think it only affect the “bad people”. But then when it happens to them, they can’t believe something like this actually exists. Welcome to America.

  2. Liberal Capitalist says:

    So: Those of you that state that you are over-taxed… this is your result.

    “civil asset forfeiture”

    I will take yours to fund my police force.

    You will sign over your belongings to ensure that you are not jailed or charged with crimes.

    Break a law, loose your stuff.

    Have large amounts of cash in your car? Clearly evidence of Drug trade involvement.

    It’s seized.

    History repeats itself, over and over.

    The Sheriff of Nottingham is well out of control.

  3. Hal_10000 says:

    @Todd:

    Baloney. These seizures aren’t being use for “vital services”. They are used to expand police departments, buy unnecessary military hardware and even pay for luxuries like junkets and drink machines. Some states have said they will use the money for other things. But police agencies turn this stuff over to the feds, who then pay it straight out to the police departments after taking their cut. This is theft, plain and simple. Don’t try to wedge taxation issues into it.

  4. SKI says:

    This was an issue we covered in law school in the 90’s. It was ridiculous then and it has gotten far, far worse.

  5. Todd says:

    @Hal_10000: That’s certainly not why the most egregious offenders do it, but as James pointed out, it was one of the original justifications for the program in the first place. Other than that, I’m as outraged about this as you are, please don’t confuse my comment as defending this in any way shape or form. When I go to see my wife and kids back in Texas, I have to drive for about 700 miles on I-10 … right through towns like Las Cruces. Fortunately I drive a 13 year old car, and rarely have more than 20 bucks in my pocket, so might no be a prime target … but that doesn’t mean I’m totally immune.

  6. Paul Hooson says:

    Some years ago, far right Senator Jesse Helms added obscenity on to racketeering offenses allowing governments to take all business assets for selling as few as two items a jury may find obscene. That was outrageous and has cost many businesses 10 of millions of dollars in company assets and resulted in long prison terms for merely selling something that delight a few, but offends others. Record stores that old some rap or hip hop albums, mom and pop video stores that sell or rent a few adult videotapes, and adult businesses have all been targets in the past of these outrageous attacks on free expression.

  7. Gustopher says:

    Like many extraconstitutional tools, including the infamous Racketeer Influenced and Corrupt Organizations (RICO) Act

    What part of RICO is so egregious? I know very little about it, other than the triple damages. What am I missing?

    And, to be perfectly honest, I think triple damages would be a great policy in general if applied to large corporations — too often, they routinely cheat and defraud customers safe in the knowledge that the worst that can happen is they will have to pay it back if caught.

  8. SKI says:

    @Gustopher: It is a statute designed to deal with organized crime that is routinely (mis-)used by prosecutors in many other settings. See, e.g., its use in going after hospitals (http://www.forbes.com/sites/insider/2013/02/13/down-the-rico-rabbit-hole-john-reynolds-and-the-hospital-for-special-surgery/)

  9. Trumwill says:

    @Todd: Your argument would have much more weight if there were a stronger relationship between asset forfeitures and local tax rates. I mean, can we really point to New York and say “There’s a state that’s just too committed to low taxes”?

  10. Paul Hooson says:

    Here in Oregon a denture maker who was thought to have charged excessive prices for dentures was prosecuted under RICO. A law intended for organized crime was used to mow down an overpriced denture maker. Civil racketeering will allow for triple damages in disputes with business, but in criminal racketeering cases such as obscenity, instead of removing an especially offensive title or two from a business inventory, government is using what amounts to an atomic bomb on a business to completely destroy the entire business, all bank accounts and assets of the business owner, besides enhanced prison time and fines. This might be a useful tool to take down a murder for hire business, or a heroin trafficking business, but in so many other areas this is just excessive penalties far worse than the claimed crimes. I don’t think that RICO was ever originally intended for anything more than a tool to take down violent criminal enterprises. RICO was never intended for guys who overcharge on dentures or very subjective personal taste “crimes” like obscenity, where every juror is a film or book critic, where their personal tastes carry the weight of law.

  11. Logical Capitalist says:

    @Liberal Capitalist:

    How is civil asset forfeiture the result of over-taxation? Did you bother to think your point through before you wrote it? If people are over-taxed there should be enough money in the pot to cover these cops budgets.

    Are you trying to make the absurd point that people need to be happy about paying higher taxes because it keeps the cops from stealing their hard earned money and property? Blaming the victim is always a sure sign of a losing argument.

    Civil asset forfeiture abuse is the result of sleazy, opportunistic cops manipulating the law for their personal enrichment. Nothing else.