Asset forfeiture provides huge monetary benefits for law enforcement

Commentary by James Shott

The Civil Asset Forfeiture Reform Act became law in 2000. Asset forfeiture is a tool that gives law enforcement the power to seize property and cash if they suspect it is connected to a crime, and is hailed by law enforcement groups as a vital tool for combating drug trafficking and money laundering.

The Institute for Justice reports that the Justice Department’s program furnished state and local law enforcement agencies some $4.7 billion in forfeiture proceeds from 2000 to 2013. What better way to help fund law enforcement than through the confiscation of property from criminals?

But the DOJ now plans to halt the program. Naturally, law enforcement wants this program to continue, and the possibility of the program being halted has raised concerns and prompted letters to President Barack Obama and Attorney General Loretta Lynch.

The National Sheriff’s Association, to cite just one of the law enforcement groups expressing concern, said the Justice Department’s decision will hinder law enforcement agencies’ ability to do their jobs. “While Congress and the president vacation in peace and tranquility, law enforcement knows all too well that the criminals, terrorists, and criminal aliens do not take a holiday,” the sheriff’s organization noted. “Those seeking to do us harm can rest easier knowing one less tool can be used against them.”

However, typical of governments at all levels, which are operated by humans and not angels, this program has been abused to illegally confiscate the private, legally possessed property of innocent Americans. Essentially, the message government sends out far too frequently is, “Any useful program that governments have at their disposal will eventually be misused, to the detriment of the people for whose benefit it was developed.”

If you need a recent example of government power misused by government employees, remember Lois Lerner and the IRS targeting and harassing certain conservative organizations seeking non-profit status. Other examples of misbehavior are not hard to find.

The asset forfeiture program also is abused. From the ACLU Website: “Police abuse of civil asset forfeiture laws has shaken our nation’s conscience. Civil forfeiture allows police to seize — and then keep or sell — any property they allege is involved in a crime. Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.

“Forfeiture was originally presented as a way to cripple large-scale criminal enterprises by diverting their resources. But today, aided by deeply flawed federal and state laws, many police departments use forfeiture to benefit their bottom lines, making seizures motivated by profit rather than crime-fighting. For people whose property has been seized through civil asset forfeiture, legally regaining such property is notoriously difficult and expensive, with costs sometimes exceeding the value of the property. With the total value of property seized increasing every year, calls for reform are growing louder, and [the ACLU and others are] at the forefront of organizations seeking to rein in the practice.”

Adam and Jennifer Perry exemplify people who were victimized by this law and law enforcement officers willing to capitalize on it.

On October 25, 2012, the couple was stopped for speeding in Henry County, Mass. Police searched the couple’s vehicle and found a suitcase containing $107,520 in cash. Suspicious? Yes, but not a crime or necessarily evidence of a crime. And although no drugs or any other evidence of a crime were found, the police said they suspected the Perrys of criminal activity, and seized the cash and their vehicle.

During nine hours of questioning the Perrys insisted they had done nothing wrong and that the money was theirs legally, from various legal sources, and had evidence confirming that for some of the funds. Lacking any real evidence, the police had to release the couple. But they kept the money and the vehicle, even though no charges were filed, no trial was held, and no guilt was proved. Three years later, the Perrys are still fighting to get their property back.

If this legalized theft from innocent citizens isn’t bad enough, now a federal judge has demanded that the Perrys prove how they got the money, this after they had already given explanations to the police, who did not disprove those explanations. Question: If there was no evidence of a crime, and no charges filed, why should these citizens be compelled to prove where they got their own money?

A fundamental American legal principle is the presumption of innocence, that Americans are innocent until “proven” guilty, and that the onus is on the judicial system to prove guilt, not on citizens to prove they aren’t guilty.

On December 23, the Justice Department announced it will discontinue the asset forfeiture program, but the discontinuation is temporary.

The tyrannical treatment of the Perrys by Henry County, MA police and a federal judge epitomizes what “un-American” means. Before it can be reinstated, asset forfeiture laws must be amended to protect Americans from rogue actors in law enforcement who seek improved work conditions at the expense of law-abiding citizens. Stiff criminal penalties for abuse are essential. These people soil the reputations of the 99 percent who honorably serve the people.


Cross-posted from Observations

Notice: You are breaking one or more federal laws and/or regulations

Commentary by James Shott

Most of us probably think of ourselves as law-abiding, up-standing American citizens. We pay our taxes on time. We keep our drivers licenses and inspections up to date. We don’t shoplift, or take illegal drugs. We don’t murder, rob, rape or assault others. That’s the way law-abiding citizens think and act.

And yet, I am willing to bet some money that every one of us has breeched or is on the wrong side of some federal decree.

I say that with a high degree of confidence because there are so many of these edicts from on high that nobody – not you, not law enforcement, not even the judges at whose mercy we will find ourselves if charged for breaking one – knows them all.

You see, here in the Land of the Free there are between 3,600 and 4,500 federal statutes that impose criminal sanctions, according to Michael Cottone, writing in the Tennessee Law Review.

As bad as that is, the ridiculously high number of federal laws pales in comparison to the number of regulations created by administrative agencies that carry criminal penalties, maybe as many as 300,000 of them.

With that knowledge, the old maxim “ignorance of the law is no excuse” is now a mere absurdity.

Of course, if we actually were to follow the dictates of the U.S. Constitution – a quaint idea, these days – at least some of those 300,000 regulations aren’t valid, since the only authorized law-making entity at the federal level is the Congress, and the Constitution does not authorize the Congress to abdicate that duty, and pass it along to the excessive number of unelected bureaucrats in the too-many Executive Branch agencies, departments, administrations, commissions and offices.

The Constitution sets forth the following: Article I, Section I: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” That’s about as plain as it can be. Notice it does not say, “except where Congress decides to cede that authority to the Executive Branch.”

Some laws are downright stupid, or sometimes are applied stupidly:
* A child saved a woodpecker from her family’s cat and was fined $535 under the migratory bird law.

* A 66-year-old retiree went to prison because he didn't have proper paperwork for orchids.

Some are irrational; others are conveniently broad and through twisted reasoning are used to punish American individuals and businesses. Consider the case of Gibson Guitars: On August 24, 2011, agents of the federal government executed four search warrants on Gibson manufacturing plants in Nashville and Memphis, Tennessee, where they seized pallets of wood, electronic files and finished guitars. Other than making excellent musical instruments, what had Gibson done?

Public servants in the Department of Justice determined that using wood from India that was not finished by workers in India is illegal, not by U.S. law, but because of the way the DOJ interpreted Indian law. The feds argued that Gibson violated the Lacey Act of 1900, which outlaws the use of plants and wildlife that have been taken or traded in violation of foreign law.

Apparently, Gibson is supposed to have known that Indian companies broke Indian law and sold wood illegally, thereby making Gibson subject to prosecution in the U.S. Seriously.

CEO Henry Juszkiewicz said Gibson competitors also use this same wood, and wondered why his company had been singled out. Fair question. Regardless, Gibson paid $300,000 to avoid criminal charges, was forced to make a "community service payment" of $50,000 to the U.S. National Fish and Wildlife Foundation to promote conservation and development of tree species used in making musical instruments, as well as withdraw claims to $262,000 worth of exotic woods seized by federal authorities.

It is unfair and oppressive to hold taxpaying citizens to the impossible standard of knowing and obeying every one of the hundreds of thousands of laws and regulations that might affect them, but in addition to that, perpetuating circumstances that allow prosecutors to haul people into court and potentially fine or imprison them on the flimsy basis that they should actually know all these decrees is outrageous, although Mussolini, Pol Pot, and Stalin would approve.

"The criminal code today is so vast and complex that judges and lawyers have a lot of trouble discerning what's legal and what's illegal," John Malcom, a senior legal fellow at the Heritage Foundation, told the House Judiciary Committee. "What hope do ordinary citizens have?" The government should be required to identify every federal crime, he said, and make that list easily accessible and free to the public.

National Association of Criminal Defense Lawyers president Steven Benjamin testified that when the average citizen cannot figure out what is illegal, "that is unfairness in its most basic form. We have become addicted to the use of criminal law as a blunt instrument to control social and economic behavior."

George Terwilliger, former deputy attorney general in George W. Bush’s administration, thinks Congress should pass one overriding law that requires proof of intent for any federal crime.

Contact your representative and senators and tell them to implement the Malcom and Terwilliger recommendations.

One investigative reporter’s intriguing trials and tribulations

Sharyl Attkisson is an award winning television journalist who until recently worked for CBS News. She received two Emmy nominations in 2010 and another in 2011 for investigating members of Congress and the government’s wasting of tax dollars. Her reporting of the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) “Operation Fast and Furious” debacle won CBS News the Investigative Reporting Award from Accuracy in Media in 2012, and also won CBS Evening News the Radio and Television News Directors Association's National Edward R. Murrow Award for Excellence in Video Investigative Reporting.

You may remember “Operation Fast and Furious,” although it received much less coverage than it deserved. That was the name attached to the ill advised, poorly conceived, and error-ridden misadventure devised by ATF, an effort to shut down the flow of U.S. guns to Mexican drug cartels. The idea was to allow guns to be put in the hands of Mexican drug traffickers for the purpose of tracking them to cartel members and arresting them.

Not only did ATF botch tracking the weapons, but people who were armed with two of those “Gun Walking” weapons and were illegal aliens that the ATF had not arrested, killed Border Patrol Agent Brian Terry on the U.S. side of the Mexican border. While it is certainly possible to dream up a more preposterous plan than this one, “Fast and Furious” richly deserves the Dubious Achievement Award.

While working for CBS News in 2013, according to huffingtonpost.com, Ms. Attkisson told a Philadelphia radio station that "[t]here has been an issue in my house and there has been an issue with my computers that's gone on for quite a long time that we're looking into.” The issues, she said, had been occurring for about two years. An investigation by CBS News confirmed that, indeed, an external third party had accessed her computer numerous times.

Further problems were outlined by Erik Wemple on washingtonpost.com: “By November 2012, writes Attkisson, disruptions on her home phone line were so frequent as to render it unusable: ‘I call home from my mobile phone and it rings on my end, but not at the house. Or it rings at home once but when my husband or daughter answers, they just hear a dial tone. At the same time, on my end, it keeps ringing and then connects somewhere, just not at my house. Sometimes, when my call connects to that mystery-place-that’s-not-my-house, I hear an electronic sounding buzz,’ reads one passage in [her new book]. She also alleges that her television set ‘spontaneously jitters, mutes, and freeze-frames.’ The home alarm, too, ‘sounds at a different time every night’ and when she checks with the alarm system, it indicates that there’s ‘trouble with the phone line.’”

Who had the motive and the means to do such things?

Could it have been a competitor network? Perhaps. But would a competitor have strong enough motivation to take on such a project? How about a foreign entity, like China? China has the wherewithal, but would it be interested in the subjects Ms. Attkinsson was investigating? Probably not.

How about the CIA, FBI, NSA, DOJ or other government department? Well, given that she was looking into misbehavior of members of Congress and the “Fast and Furious” mess, yes, both motive and wherewithal exist in administrative agencies. However, the Justice Department denied any involvement, so we can just follow the lead of the mainstream news media and put that suspicion to rest, can’t we?

Ms. Attkinsson did yeoman’s work investigating and reporting on the “Fast and Furious” government screw-up, but CBS’ interest ran out before the story was over, as did the government’s interest in explaining to the American people how such a thing happened.

You would probably use more than all your fingers and toes counting the prominent media outlets that share a grand lack of curiosity for epic blunders, bungles, fiascos and miscalculations by our government over the last few years, like the Benghazi security failure, the Solyndra financing boondoggle, the IRS targeting non-profit applicants, the NSA mass spying project, the failure to secure the southern border, and the Justice Department spying on reporters’ private communications.

Finally, however, after more than five years a few media outlets have started to notice and point out the administration’s many shortcomings, and to ask questions about these things.

Ms. Attkinsson left CBS News this year due to what she said is the network's liberal bias and lack of dedication to investigative reporting. She has written a book, Stonewalled: One Reporter's Fight for Truth Against the Forces of Obstruction, Intimidation, and Harassment in Obama's Washington, published by Harpers, and focusing on difficulties she has experienced in reporting on the Obama administration.

Sharyl Attkinsson epitomizes what the Fourth Estate is supposed to be: the people’s guardian against government misbehavior. A responsible and determined news media provides the public the information it needs to properly evaluate what its government and elected officials are doing, and as such is an indispensable tool for a free society. This function has been largely missing since January of 2009. Maybe if a Republican is elected president in 2016, the function will be revived.

Ferguson, Missouri, is really a story of inappropriate reactions

Commentary by James Shott

The death of a black teenager at the hands of a white police officer in Ferguson, Missouri, and the events before and after the shooting, have raised many questions: about race relations, about the behavior of police, about the militarization of local and state police forces, and whether and to what extent the self-serving and often-biased behavior of the national media makes things worse.

The most important thing about this episode is that no one really knows what happened, except the 18 year-old male, who is now dead, and the police officer who shot him.

Maybe the black residents of Ferguson are correct in their belief that the police officer murdered an innocent black teen.

If the police officer did indeed kill the boy without justification, or used excessive force, he should be prosecuted to the fullest extent of the law. Several times this column has pointed out examples of unjustified and stupid use of force by law enforcement officials at all levels. Police must be held to account when they break the law, or injure innocent people, just like the rest of us.

But perhaps other information that shows the young black male as something other than the “gentle giant” he has been portrayed to be is correct. And if so, that also has to be taken into account.

In such emotional situations as this one, people’s initial reactions are usually based upon their existing attitudes about those involved. Perhaps they believe white police officers are biased against black residents. Or, perhaps they believe the worst of the black people involved. And, the stronger the emotions involved, the stronger the reaction to the situation is likely to be.

That seems to be precisely what happened.

The majority black population in Ferguson immediately believed the white policeman murdered the black youth, while others believed the worst about the black youngster and thought the police officer was justified in shooting him. Black residents demonstrated and protested, leading to police responses that mostly made things worse.

There are pieces of information floating around to support both the black youth and the white policeman, but what is lacking is being able to know which of all of these various pieces of information are credible and which are not. Investigating crimes frequently takes time, and first impressions about what happened are often wrong.

If they are devoted to objectively and accurately reporting events, news organizations can help settle initial emotional reactions. But if other considerations take precedence, the way news outlets handle events can stir things up further.

One issue is that of proportionality: as serious as this situation is in Ferguson, Missouri, one must ask the question of whether in the universe of important events this situation truly justifies the hundreds of hours of breathless, up-front coverage given to it by the dominant news outlets?

The Media Research Center (MRC) is a 501(c)(3) media watchdog organization, which is one of several organizations that looks and reports on the performance of the national media. Brent Bozell, MRC’s founder and president, comments: “You’ve got a hundred blacks [that] have been shot by white cops. What happened to the other 99? Why don’t they merit coverage?” And then, “You’ve got 5,000 blacks killed by blacks. Why isn’t that news?”

Both are fair questions, and important questions.

In cases such as the Ferguson shooting death, Mr. Bozell rightly says that “this is where the media, more than ever, need to be disinterested, neutral observers.”

There’s enough tragedy in this story to go around. The parents, relatives and friends of the young black man whose life is now over obviously have a tragedy to cope with. But so do the relatives, friends and co-workers of the white policeman.

If we analyze how the national broadcast and online media, and major daily newspapers operate, it is evident that news organizations often glom onto a story based not just on the news value of the story itself, but whether the story fits in with certain of the dominant media’s favored narratives. A story about a white cop shooting a young black male has greater media appeal than a story about white man killing another white man, or a black man killing another black man.

Further, too often it is a matter of who is first with something, not who gets it right. The online and cable/broadcast outlets have to furnish 24 hours of content a day, and if you ain’t first, you ain’t in the game. So any little tidbit of new information becomes a headline, or “Breaking News.” And it is not unusual for these “urgent” items to be relatively unimportant, or may be either iffy or flat out wrong.

Quite a lot of the accounts we have seen, heard and read in the news are incomplete, contain unverified elements, and sometimes are biased. The media may eventually report the unvarnished truth, or not, but the chaos that occurs in the interim stirs emotions on all sides, and obfuscates the truth, which is precisely opposite to the responsibility the news media have to serve the public.

Good journalism demands more, much more, than this.


Cross-posted from Observations

Privacy under attack? Stop-and-frisk vs. NSA surveillance

As Americans, we each have a guaranteed right to privacy. The online legal site FindLaw explains it this way: “The Fourth Amendment to the U.S. Constitution protects personal privacy, and every citizen's right to be free from unreasonable government intrusion into their persons, homes, businesses, and property – whether through police stops of citizens on the street, arrests, or searches of homes and businesses.”

That seems plain enough, but how one interprets the word “unreasonable” provides ample opportunity for mischief, as well as for good law enforcement.

As for good law enforcement, New York City Mayor Michael Bloomberg has credited the City’s stop-and-frisk policy with helping drive crime to record lows since the policing policy was implemented in 1994, with the murder rate falling by an astounding 82 percent by 2009.

New York’s stop-and-frisk policy seeks to prevent crime before it happens by deploying officers with pinpoint precision to critical street segments in high-crime areas where they interact with individuals displaying suspicious behavior: they approach, question, and sometimes frisk the individuals. That practice has led to fewer people, such as members of street gangs, risking arrest by carrying a weapon on their person, and with fewer gang bangers carrying weapons, there are fewer spur-of-the-moment shootings in New York, and correspondingly fewer deaths.

You might think that, given the obvious level of success in reducing the murder rate in the Big Apple, such a policy would fall outside the Fourth Amendment’s proscription against “unreasonable” searches. But you would be wrong, according to U.S. District Judge Shira Scheindlin, who believes that the policy indeed does violate the Fourth Amendment protection.

Mayor Bloomberg believes that the judge's decision will cause a reduction in the use of stop-and-frisk, which would reverse crime reductions and make his city a more dangerous place. And data indicates he is correct. In 2011, guns were used in 61 percent of all homicides, but in black neighborhoods 86 percent of young black males died from gunfire. Stop-and-frisk reduced the total number of deaths by reducing the number of guns on the streets.

The challenge to the policy arose because officers stop minority residents at a rate disproportionate to their number in the general population. But those stops are not disproportionate to the minority resident population in the crime-ridden neighborhoods or disproportionate to the number of crimes minorities commit in those neighborhoods.

As we have seen recently, there is the possibility that authorities may lose perspective and become abusive in the use of policies like this one, but supervisors are charged to competently manage their operation. And due to the depths of its crime problem when the policy was implemented, New York police applied stop-and-frisk more aggressively than other cities. But whether or not the City is too aggressive ought not be decided without considering its unique circumstances and surprising rate of success in reducing murders.

An opposite approach to systematically and thoughtfully targeting areas where crimes mostly occur and populations that most often commit them like New York City is doing is the blanket, indiscriminate, suspicion-less spying on telephone, email and other private communications and activities of millions of Americans by the National Security Agency.

The government’s spying on Americans is so egregious – eavesdroppers broke privacy rules or overstepped their legal authority thousands of times every year – it’s no wonder the administration wants to arrest and try Edward Snowden for making the information about its spying public.

Where New York police might appear to have been over-aggressive in implementing stop-and-frisk, the federal government’s policy itself is over-aggressive by design. Surely, observers familiar with the Fourth Amendment’s restrictions on searches would be unable to conclude anything other than that NSA spying is precisely why there is a Fourth Amendment.

As reported in The Washington Times, “A Top Secret internal NSA audit, leaked by Mr. Snowden to freelance journalist Barton Gellman earlier this summer and published online by The Washington Post Thursday night shows that, in the 12 months prior to May 2012, there were 2,776 incidents of ‘unauthorized collection, storage, access to or distribution of legally protected communications’ — those between Americans or foreigners legally in the United States.”

“Most were unintended,” according to The Post. “Many involved failures of due diligence or violations of standard operating procedure.” Even if the problems were unintended, sloppiness certainly is no excuse: The infringements are no less wrong, no less a breach of individual privacy, and no less intolerable.

The larger the scope of a program, the greater the chance that something will go wrong, and the more opportunities there are for something to go wrong. Congressman Peter King (R-NY) defends the program, saying that the situation is being blown out of proportion, that the rate of error is miniscule.

Maybe so; however, since the NSA program seeks to find a few fake grains of sand on a beach, and involves millions upon millions of records. For every million records, ten thousand mistakes can be made, affecting the privacy of ten thousand Americans, and the success rate is 99 percent.

Even if such gargantuan programs are run efficiently and competently, they are examples of unjustified government excess, and should not be allowed.