Topics in Depth series -- Asset Forfeiture
by Rachel King, ACLU, DC National Office, [email protected]
Current federal civil forfeiture laws are a dangerous tool in the hands of overzealous federal law enforcement. Federal Prosecutors may seize a personís property without the necessity of proving that the person has committed a crime or that the property was involved in the commission of a crime. In fact, no criminal arrest or charge is necessary to subject property to forfeiture. Because the proceeding is a civil one, the person is not provided with the constitutional protections afforded criminal defendants such as the right to notice and a hearing and the assistance of counsel.
The unjust and irrational disparities created under this system are illustrated by the following example. A major drug trafficker prosecuted federal under criminal drug statutes would be afforded the full panoply of due process and other constitutional protections. However, an innocent 72-year-old grandmother, whose grandson, without her knowledge, allegedly makes a drug sale from her front porch may lose her home and possessions -- under federal civil asset forfeiture laws -- without the benefit of indictment, hearing, trial, or any other constitutional or procedural protections.
While the ACLU believes that all civil forfeiture schemes should be abandoned, we endorse the bipartisan-supported "Civil Asset Forfeiture Reform Act" currently referred to as the more targeted reforms contained in Managerís Amendment to H.R. 1965 offered by Representative Henry Hyde, Chairman of the House Judiciary Committee. The ACLU urges support for Chairman Hydeís ongoing work at revising the federal civil asset forfeiture laws which abuse the property rights of innocent Americans.
The following "parade of abuses" vividly illustrate why current civil asset forfeiture laws are a threat to all Americans and must be changed.
Kip Baker was staying at a friendís home when federal agents showed up at the door and informed him that his friend was involved in a marijuana-growing network and the government was taking the house and its contents. Baker was never charged with a crime. However, agents seized his ivory collection, the heirloom diamond ring off his finger, and the gold nugget from around his neck. He was informed that federal law required him to prove they were acquired legitimately. After a year and a half of fighting bureaucracies, a federal prosecutor informed him that the government had sold his possessions. Marilee Enge, Governments Make Crime Pay, A-1, June 20, 1993.
While investigating a domestic violence call, local police found and seized cocaine, drug paraphernalia, and $45,000 in cash. A state judge threw out the forfeiture claim but the police had already given the money to the DEA, who had "adoptively seized it." When the city was ordered to give Johnson a check, a federal agent found out when the city would be issuing the check, obtained a warrant, and seized the money before Johnson could claim it. Marilee Enge, Governments Make Crime Pay, A-1, June 20, 1993.
Donald Scott, a 61-year-old millionaire who owned a 200-acre ranch was shot and killed on October 2, 1992 by federal agents who had burst into his home to serve a warrant to search his ranch for evidence of cultivation of marijuana. After a lengthy investigation, Ventura County District Attorney Michael Bradbury concluded that the slight evidence of marijuana cultivation given to the judge in support of the warrant contained misstatements and omissions which invalidated the warrant. Ironically, it was later revealed that Scott was "fanatically antidrug." The District Attorney issued a statement concluding that law enforcement had been interested in the value of the ranch because they were motivated by a desire to forfeit the property. Another interesting footnote to the story is that the U.S. Park Service, who also took part in the raid at Scottís home, had been pressuring Scott to sell his ranch to add the land to the adjacent Santa Monica Mountains National Recreation Area, but Scott had repeatedly refused offers for as much as $5 million dollars. Representative Henry Hyde, Forfeiting Our Property Rights, CATO Institute, Washington, DC, 1995.
A cosmetics salesman was on his way to a gambling trip in Las Vegas when federal agents seized the $9,000 he had brought along for the trip. Federal agents seized the money on the grounds that they had probable cause to believe he was a drug dealer, based on the fact that he was carrying cash on a trip from Miami to Las Vegas. The salesman chose not to sue the government to return his money when he discovered the cost of suing would be greater than $9,000. Marvin Zalman, Another View: Marvin Zalman: Insidious Side of Drug Forfeiture Laws, The Detroit News, Opinion pg., A11, May 9, 1997.
DEA agents raided a chemical laboratory and found methamphetamines bearing labels from Ken Brownís business, Chemco International. Those chemicals have over 5,000 uses and are not illegal to sell (except in large quantities). Among his customers were the U.S. Forest Service and the Florida State Fish and Game Commission. Undercover agents subsequently bought controlled chemicals from a Chemco employee. The DEA agents raided Brownís home, describing him as a key figure in a drug conspiracy because an informant described him as the leader of a motorcycle gang. Federal agents used forfeiture laws to seize his business, $300,000 in inventory, his home, two cars, as well as his 8 year old childís Nintendo game, tennis racket and Mickey Mouse fishing pole. The DEA offered to release his house, cars and fishing pole if he surrendered his business. Jeff Brazil, Forfeiture Laws Seize National Scorn, The Orlando Sentinel, p. A-21, August 2, 1992.
The FBI seized three cars from a businesswoman after alleging that her husband had used her car phones to place illegal bets on sporting events. James Bovard, Lost Rights, p. 15, St. Martinís Press, New York (1994).
Former New York Giants center Kevin Belcher was detained by DEA officials, and had $18,265 seized, because he fit a drug courier profile based on the facts that he is a black male who purchased a one-way ticket to El Paso and was carrying $100, $50, $20, $10 and $5 bills. Actually, Mr. Belcher was carrying cash because he was going to an auto auction to purchase classic old cars. Andrew Schneider and Mary Pat Flaherty, Drug Agents More Likely to Stop Minorities, pg. 11-14, April 5, 1992, Pittsburgh Press.
Las Vegas, Nevada
Billy Munnerlyn used to run an air charter business out of Las Vegas. He flew a man from Little Rock to Ontario, without knowing anything about the passenger. When the plane landed in Ontario, DEA agents were waiting. They searched the passengerís bags and found $2.7 million. The passenger and Munnerlyn were both arrested. The charges against both were dropped for lack of evidence. But the federal government seized Munnerlynís plane. For two years, the plane sat in a government warehouse, and Munnerlyn spent $85,000 in legal fees to get it back. He finally bought the plane back for $7,000. "Youíre Under Arrest," televised on Sixty Minutes, April 5, 1992.
Buffalo, New York
Juana Lopez was stopped by DEA agents outside a bus depot in New York City with $4,750 cash in her purse. After questioning, the officer realized he had previously arrested her husband for drug charges and told her that she was free to go, but he would keep the money because a drug dog had reacted to it. Mrs. Lopez has produced receipts showing that all of her money was legally obtained; a third of the money was borrowed, another third came from the sale of some jewelry, and the rest came from her savings as a hair stylist. The money was earmarked to pay legal fees for her husband. Andrew Schneider and Mary Pat Flaherty, Drug Agents More Likely to Stop Minorities, pg. 11-15, Pittsburgh Press, April 5, 1992.
Tracy Thomas had $13,000 taken from her by local police as they looked in vain for drugs allegedly sold by her godson. When a state judge ordered police to return the money they turned the money over to the DEA for processing as a federal case. Andrew Schneider and Mary Pat Flaherty, Government Seizures Victimize Innocent, Pittsburgh Press, April 5, 1992.
Gary and Kathy Bergman had their home seized after a houseguest was found with marijuana. After a three hour search of the house, federal agents found a trace of pot and a marijuana butt in a car outside belonging to the Bergmansí daughter. Even though neither of the Bergmans was charged with a federal crime (Gary pleaded no contest to a misdemeanor state charge) the federal government seized the entire house as the presumed tainted property of a drug ring. The Bergmans have been allowed to stay there under an occupancy agreement. However, their front and back doors post signs stating, "No trespassing by order of U.S. Marshall." David Kaplan, Bob Cohn, and Karen Springen, Where the Innocent Lose, Newsweek, pg. 42, January 4, 1993.
After paying cash for a round-trip ticket, Willie Jones was stopped and searched. Police found and confiscated $9,600 which Mr. Jones was carrying in order to purchase shrubbery for his nursery. Police claimed a crime dog detected drugs on the money, but Mr. Jones never saw a dog. The officers did not arrest Jones, but they kept the money and on the receipt given to Jones listed an "unspecified amount of U.S. currency." DEA told Mr. Jones he would have to post 10 percent of the money, a $900 bond, to get the money back. Since paying $900 dollars would have required him to sell his truck, which was essential for his business, he was unable to pay and he resigned himself to losing his money. Said Jones: "I donít wear gold chains or jewelry, and I donít get into trouble with the police, I didnít know it was against the law for a 42 year-old black man to have money in his pocket." Andrew Schneider and Mary Pat Flaherty, Drug Agents More Likely to Stop Minorities, The Pittsburgh Press, April 5, 1992.
Richard Smithís pickup truck was seized when U.S. Fish and Wildlife Service and state agents trespassed onto his ranch and accused him of poisoning eagles. The agents also tracked down Smithís 75 year-old father and seized his truck. Nine months later, the agents returned the trucks without ever filing charges or producing evidence to support their allegations. James Bovard, Lost Rights, p.12, St. Martinís Press, New York (1994).
Ethel Hyton had $39,110 seized during a search by DEA agents at Hobby Airport in Houston. The agents searched her bags and ordered a strip search of Miss Hylton, but found no contraband. Police claimed a drug dog had scratched at her luggage, although Ms. Hylton never saw a dog. The money which Ms. Hylton had was a settlement from an insurance claim, coupled with her life savings, which was being used to buy a house. Andrew Schneider and Mary Pat Flaherty, Government Seizures Victimize Innocent, Pittsburgh Press, April 5, 1992.
South Houston, Texas
A South Houston hotel, the Red Carpet Inn, was seized by federal agents after patrons were accused of drug trafficking. Although Acting U.S. Attorney James DeAlley admitted the government was not accusing the hotel owners of participating in illegal activity, he claimed that the business was giving "tacit consent" to the drug dealers. DeAlley was quoted as saying, "Along with property rights go responsibility and the owners here werenít living up to their responsibility." Deborah Tedford, No Vacancy for Drug Dealers: Feds Seize Hotel, Houston Chronicle, February 18, 1998.
Albermale Associates had a 2 1/2 story house seized when their tenants, a college fraternity, were raided in a drug bust. The corporation was able to get the house back only after paying a hefty fine to the federal government in a sealed settlement. "It was basically blood money" said Douglas Chamber, Albermaleís corporate secretary. Jayne Levin, Landlordís Assail House Seizure in Drug Cases, The Washington Post, E1, November 28, 1992.
James Hoyleís 72- year -old motherís home was seized by FBI agents and DC police officers when her nephew Mark, who was staying there overnight, was suspected and later charged with drug dealing. More than 15 FBI agents, armed with what appeared to be automatic weapons, placed Mark under arrest and began searching the house. After handcuffing Ms. Hoyle, they took all of her televisions, VCRs, family photos, personal papers, and an automobile. It took twelve police officers to tear the built-in television set out of the wall. One of the police officers was caught on camera saying: "How do you like your new house?" The warrant was based on an informantís claim that he made a drug deal with Mark on the front porch years earlier. Asset Forfeiture. Testimony before Subcommittee on Legislation and National Security of the House Comm. On Government Operations, Sept. 30, 1992 (testimony of James Hoyle).
Purchase any of the following relevant books from amazon.com, and DRCNet will earn a percentage!
Forfeiting Our Property Rights: Is Your Property Safe From Sezure? By Rep. Henry Hyde, published by the Cato Institute.
A License to Steal: The Forfeiture of Property, by Leonard W. Levy, professor of law at the University of North Carolina.
Lost Rights: The Destruction of American Liberty, by James Bovard.