Legally sanctioned highway robbery and other thefts by law enforcement

The Washington Post reported in 2014 that under U.S. and state laws, in a federal program known as “Equitable Sharing,” since 2001 state and local police have seized $2.5 billion from people who were not charged with a crime.  ¹

In 1984 the U.S. congress enacted, and President Reagan signed, the Comprehensive Crime Control Act, ² which established a special fund that turned over proceeds from forfeitures to the law enforcement agencies responsible for them. Local police who provided federal assistance were rewarded with a large percentage of the proceeds, through a program called Equitable Sharing. ³ In consequence many states adopted or bolstered their own forfeiture laws, known as civil asset forfeiture laws.

The asset seizures described herein are a consequence of the “War on Drugs,” a policy of the United States to enforce prohibition of the sale and consumption of narcotic drugs. It is also a policy that illustrates the insight of the philosopher George Santayana who said that those who cannot remember the past are condemned to repeat it.

Prohibition of alcoholic beverages was the policy and the law of the U.S. from 1920 to 1933. Alcohol prohibition created a lucrative business for those willing to risk imprisonment for violation of prohibition. Because alcoholic beverages were contraband, their price increased significantly, an inevitable result of the economic law of supply of demand, in which a decrease in the supply of goods results in an increase in price if the demand for the goods continues relatively unabated.

The same thing has occurred with prohibition of narcotic drugs. The illicit drug trade has become highly profitable as a consequence of the limitation of suppliers to those willing to risk the drastic punishments imposed by law.

A direct consequence of alcohol prohibition was deadly fighting between rival criminal gangs for control of the illicit alcohol trade. Prohibition of narcotic drugs has had a similar consequence, but with a tragic difference. Unlike the time of alcohol prohibition where the deadly combat for control of the trade claimed as victims mainly those in the illicit alcohol trade, the combat between rival drug gangs has escalated to virtual warfare in which there are large numbers of innocent bystanders killed within the inner cities of the U.S. and also in countries of Latin America in which and through which narcotic drugs are produced and transported to the U.S.

The actions of law enforcement described herein to halt the drug trade have had the deplorable consequence of attacking and harming Americans who are innocent of any wrongdoing. The asset seizures from innocent persons have become ever greater in magnitude as law enforcement steps up the futile attempt to discourage the drug trade.

An asset seizure in Anaheim, California, illustrates how the “Equitable Sharing” program is used by federal and state law enforcement to divide the money taken from citizens innocent of any wrongdoing. According to a recent report by The Institute for Justice, a not-for-profit civil liberties law firm, “In August, 2012, the federal government and the City of Anaheim teamed up to take [Tony] Jalali’s building, representing his life savings, for renting space to two medical marijuana dispensaries that were entirely legal under California law. Jalali had no involvement in the operation of the dispensary or with the marijuana industry; he was just a landlord that rented an office to two lawful California medical marijuana businesses, as he had to the dental office and insurance company in the same building.

“Not only is medical marijuana legal in California, but state law prohibits the forfeiture of homes and buildings like Jalali’s unless the property owner is convicted of a felony crime. In other words, state and local officials could not forfeit Jalali’s building under state law since he was never even accused of a crime.  But the city of Anaheim teamed up with the federal government to do an end-run around California law, allowing the city to benefit from a forfeiture they could not achieve under state law.  Using a federal forfeiture program known as ‘equitable sharing,’ if the federal government was successful in taking the property it could have kept 20% of the proceeds of the building—worth about $1.5 million—while the remainder could have gone to Anaheim law enforcement officials.  The equitable sharing program is a powerful incentive used by the federal government to enlist local law enforcement officials to cooperate in federal forfeiture prosecutions.

“But, in October, 2013–after a year-long fight in federal court against the U.S. Department of Justice–Jalali prevailed.  The United States government dropped its civil forfeiture action, giving up its attempt to take his building. The government agreed to dismiss the case with prejudice, which means the government gave up any right to file the case again in the future and threaten the property.” ⁴

During 2014 the Washington Post published six articles on civil asset forfeiture, including “Stop and seize: Aggressive police take hundreds of millions of dollars from motorists not charged with crimes,” by Michael Sallah, Robert O’Harrow, Jr., and Steven Rich, Washington Post, September 6, 2014, http://www.washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/#

This article characterized what its reporters found as “. . . an aggressive brand of policing that has spurred the seizure of hundreds of millions of dollars in cash from motorists and others not charged with crimes . . . [The newspaper’s] investigation found [that] thousands of people have been forced to fight legal battles that can last more than a year to get their money back.”

Here are some examples from the Washington Post article. “A 55-year-old Chinese American restaurateur from Georgia was pulled over for minor speeding on Interstate 10 in Alabama and detained for nearly two hours. He was carrying $75,000 raised from relatives to buy a Chinese restaurant in Lake Charles, La. He got back his money 10 months later but only after spending thousands of dollars on a lawyer and losing out on the restaurant deal. . .

“A 40-year-old Hispanic carpenter from New Jersey was stopped on Interstate 95 in Virginia for having tinted windows. Police said he appeared nervous and consented to a search. They took $18,000 that he said was meant to buy a used car. He had to hire a lawyer to get back his money. . .

“Mandrel Stuart, a 35-year-old African American owner of a small barbecue restaurant in Staunton, Va., was stunned when police took $17,550 from him during a stop in 2012 for a minor traffic infraction on Interstate 66 in Fairfax. He rejected a settlement with the government for half of his money and demanded a jury trial. He eventually got his money back but lost his business because he didn’t have the cash to pay his overhead. ‘I paid taxes on that money. I worked for that money,’ Stuart said. ‘Why should I give them my money?’”

The newspaper’s review continued by summarizing its findings as follows and by providing several additional examples included below. “The Post’s review of 400 court cases, which encompassed seizures in 17 states, provided insights into stops and seizures.

“In case after case, highway interdictors appeared to follow a similar script. Police set up what amounted to rolling checkpoints on busy highways and pulled over motorists for minor violations, such as following too closely or improper signaling. They quickly issued warnings or tickets. They studied drivers for signs of nervousness, including pulsing carotid arteries, clenched jaws and perspiration. They also looked for supposed ‘indicators’ of criminal activity, which can include such things as trash on the floor of a vehicle, abundant energy drinks or air fresheners hanging from rearview mirrors.

“One recent stop shows how the process can work in the field. In December 2012 [David Frye] . . . was working in his capacity as a part-time deputy [sheriff] in Seward County, Neb. He pulled over John Anderson of San Clemente, Calif., who was driving a BMW on Interstate 80 near Lincoln. Frye issued a warning ticket within 13 minutes for failing to signal promptly when changing lanes.”

[Note: The Washington Post report of this incident was based upon a video recording made by a dashboard camera in the police car, which recorded the entire roadside encounter between the police officer and the citizen he stopped.] ⁵

The Washington Post article continues: “He [Frye] told Anderson he was finished with the stop. But Frye later noted in court papers that he found several indicators of possible suspicious activity: an air freshener, a radar detector and inconsistencies in the driver’s description of his travels.

“The officer then asked whether the driver had any cocaine, methamphetamine, heroin or large amounts of cash and sought permission to search the BMW, according to a video of the stop. Anderson denied having drugs or large amounts of cash in his car. He declined to give permission for a search. Frye then radioed for a drug-sniffing dog, and the driver had to wait another 36 minutes for the dog to arrive.

“‘I’m just going to, basically, have you wait here,’ Frye told Anderson.

“The dog arrived and the handler said it indicated the presence of drugs. But when they searched the car, none was found. They did find money: $25,180.

“Frye handcuffed Anderson and told him he was placing him under arrest.

“‘In Nebraska, drug currency is illegal,’ Frye said. ‘Let me tell you something, I’ve seized millions out here. When I say that, I mean millions. . . . This is what I do.’ [Emphasis supplied]

“Frye suggested to Anderson that he might not have been aware of the money in his vehicle and began pressing him to sign a waiver relinquishing the cash, mentioning it at least five times over the next hour, the video shows.

“‘You’re going to be given an opportunity to disclaim the currency,’ Frye told Anderson. ‘To sign a form that says, “That is not my money. I don’t know anything about it. I don’t want to know anything about it. I don’t want to come back to court.”

“Frye said that unless the driver agreed to give up the money, a prosecutor would ‘want to charge’ him with a crime, ‘so that means you’ll go to jail.’

“An hour and six minutes into the stop, Frye read Anderson his Miranda rights.

“Anderson, who told Frye he worked as a self-employed debt counselor, said the money was not illicit and he was carrying it to pay off a gambling debt. He would later say it was from investors and meant to buy silver bullion and coins. More than two hours after the stop had begun, he finally agreed to give up the cash and Frye let him go. Now Anderson has gone to court to get the money back, saying he signed the waiver and mentioned the gambling debt only because he felt intimidated by Frye.”

While these are anecdotal reports, the Washington Post offered them as typical examples of the practice that produced $2.5 billion of asset seizures since 2001.

The New Yorker magazine published a long article about civil asset seizures in 2013, entitled “Taken: Under civil forfeiture: Americans who haven’t been charged with wrongdoing can be stripped of their cash, cars, and even homes. Is that all we’re losing?” by Sarah Stillman, The New Yorker, August 12, 2013, http://www.newyorker.com/magazine/2013/08/12/taken  This article begins with the following case.

“On a bright Thursday afternoon in 2007, Jennifer Boatright, a waitress at a Houston bar-and-grill, drove with her two young sons and her boyfriend, Ron Henderson, on U.S. 59 toward Linden, Henderson’s home town, near the Texas-Louisiana border. They made the trip every April, at the first signs of spring, to walk the local wildflower trails and spend time with Henderson’s father. This year, they’d decided to buy a used car in Linden, which had plenty for sale, and so they bundled their cash savings in their car’s center console. Just after dusk, they passed a sign that read ‘Welcome to Tenaha: A little town with BIG Potential!’

“They pulled into a mini-mart for snacks. When they returned to the highway ten minutes later, Boatright . . . and Henderson . . . noticed something strange. The same police car that their eleven-year-old had admired in the mini-mart parking lot was trailing them. Near the city limits, a tall, bull-shouldered officer named Barry Washington pulled them over.

“He asked if Henderson knew that he’d been driving in the left lane for more than half a mile without passing.

“No, Henderson replied. He said he’d moved into the left lane so that the police car could make its way onto the highway.

“Were there any drugs in the car? When Henderson and Boatright said no, the officer asked if he and his partner could search the car.

“The officers found the couple’s cash and a marbled-glass pipe that Boatright said was a gift for her sister-in-law, and escorted them across town to the police station. In a corner there, two tables were heaped with jewelry, DVD players, cell phones, and the like. According to the police report, Boatright and Henderson fit the profile of drug couriers: they were driving from Houston, ‘a known point for distribution of illegal narcotics,’ to Linden, ‘a known place to receive illegal narcotics.’ The report describes their children as possible decoys, meant to distract police as the couple breezed down the road, smoking marijuana. (None was found in the car, although Washington claimed to have smelled it.)

“The county’s district attorney . . . Lynda K. Russell, arrived an hour later. Russell . . . told Henderson and Boatright that they had two options. They could face felony charges for ‘money laundering’ and ‘child endangerment,’ in which case they would go to jail and their children would be handed over to foster care. Or they could sign over their cash to the city of Tenaha, and get back on the road. ‘No criminal charges shall be filed,’ a waiver she drafted read, ‘and our children shall not be turned over to CPS,’ or Child Protective Services.

“‘Where are we?’ Boatright remembers thinking. ‘Is this some kind of foreign country, where they’re selling people’s kids off?’ Holding her sixteen-month-old on her hip, she broke down in tears.

“Later, she learned that cash-for-freedom deals had become a point of pride for Tenaha, and that versions of the tactic were used across the country. ‘Be safe and keep up the good work,’ the city marshal wrote to Washington, following a raft of complaints from out-of-town drivers who claimed that they had been stopped in Tenaha and stripped of cash, valuables, and, in at least one case, an infant child, without clear evidence of contraband.

“Outraged by their experience in Tenaha, Jennifer Boatright and Ron Henderson helped to launch a class-action lawsuit challenging the abuse of a legal doctrine known as civil-asset forfeiture.”

Influential media have been reporting on this widespread practice of seizing assets from citizens innocent of wrongdoing. See, e.g., “Police Use Department Wish List When Deciding Which Assets to Seize,” by Shaila Dewan, The New York Times, November 9, 2014 ⁶ and “Parents’ house seized after son’s drug bust,” by Pamela Brown, CNN, September 8, 2014. ⁷  and John Oliver, Last Week Tonight, HBO Cable TV, “Legalized robbery by law enforcement,” October 6, 2014, ⁸

In the New York Times article cited immediately, there are several examples, including a New Mexico case where local police lay in wait to seize an expensive automobile on the pretext the owner was about to get into it to drive while under the influence of alcohol.

In the house seizure case reported by CNN and cited above, the city seized the home of a man and his wife on the grounds their 22-year old son had sold $40 of heroin at the house.

The cases cited above are recent, but police abuse of civil asset forfeiture has been going on increasingly over the past thirty years. In the 1990s the Orlando Sentinel newspaper published several reports of police seizures of cash on Interstate highway 95 near Orlando, Florida, including “Tainted Cash Or Easy Money?” by Jeff Brazil and Steve Berry, Orlando Sentinel, June 14, 1992. Sub-title: “Volusia [County] Deputies Have Seized $8 Million From I-95 Motorists. The Trap Is For Drug Dealers, But Money Is The Object. Three Of Every Four Drivers Were Never Charged.” ⁹

The bright side of the picture concerning asset forfeitures is that there are organizations and lawyers working pro bono to protect the property and civil liberties of individuals from predatory asset seizures by law enforcement. The Institute for Justice is responsible for some of the publicity that led to reports in the New York Times, the Washington Post, the New Yorker, CNN, and the John Oliver TV program HBO Last Week Tonight, October 6, 2014, “Legalized robbery by law enforcement.” ¹⁰

The Institute of Justice, founded in 1991, is headed up by Scott Bullock, a vigorous, articulate, and relatively young civil liberties lawyer. Its mission statement says it is a national civil liberties law firm active in protecting private property, economic liberty, free speech and school choice.

Louis S. Rulli is a professor at the University of Pennsylvania Law School who heads up a clinical practice program in which law students help indigent homeowners challenge civil-forfeiture seizures of their home where the homeowners are innocent of any illegal activity but a family member has sold illegal drugs on the premises.

David Guillory is a Texas civil liberties lawyer who devoted considerable time and effort into investigating highway seizures by law enforcement in Shelby County Texas, the locus of the forfeiture case described above in the New Yorker magazine. Mr. Guillory brought a class action to obtain a court order that Shelby County, Texas sheriff’s deputies cease seizing motorists’ cash under the pretext that the cash was a product of illegal drug activity. The country settled the case rather than going to trial.

Journalists at the Washington Post, the New York Times, the New Yorker, and other influential media organizations invested considerable time and energy to produce reports of cases brought to light by the work of the Institute for Justice, Professor Rulli, attorney Guillory and other lawyers who have been working pro bono on such cases.