asset forfeiture abuses, episode 52,966.

Asset forfeiture laws are greatly flawed in many respects.  Their fatal flaw, however, is that they give the seizing agency a financial incentive to perform as many seizures as possible.

That’s how you end up with two-stoplight towns in East Texas systematically pulling people over for minor infractions like doing 37 in a 35MPH zone, and then seizing large amounts of cash if they find them.  It seems that if you’re a racial minority driver passing through Tenaha, TX, you run a good chance of getting pulled over on the faintest of pretexts, and forfeiting any “suspicious” amount of money they find on you.

Yes, drug dealers carry lots of cash by necessity.  Yes, driving around with $50k in cash is imprudent.  Yes, some of the injured folks may have been involved in something other than buying cars or purchasing a restaurant.  Yes, the police were “following the law”.  The point here is that the law is rotten.  Asset forfeiture is bad, bad, bad law, poorly written and unevenly enforced, and contrary to the principles of assumed innocence until proven guilty.  (Yes, I know they charge the property with a crime instead of the owner, but that’s a legal contortion to make a respectable-looking end run around the Fourth Amendment.)  When a police department for a small town of 1,000 seizes three million dollars from (mostly black and Hispanic) people in the span of two years, and then uses the proceeds to buy popcorn machines, candy, and $10,000 checks to one of the officers involved in the stops for “investigative costs”, then asset forfeiture is merely highway robbery under the color of law.  The fact that they threatened parents with having the TX Department of Social Services take their kids from them if they refused to sign the forfeiture waiver just makes it blackmail on top of the robbery.

Ask yourself how that whole concept would go over with the conservative crowd if the police started seizing legally-owned guns from people who legally carry them, using the same pretext: they charge the gun with a suspected crime, rather than the money in your pocket.  If you want it back, the burden of proof is on you to show that the gun hasn’t been used to commit a felony.  Otherwise, it belongs to the department that seized it, to be auctioned off for cash, or used by the department’s officers.  Same principle, different ox gored…but the “War on Drugs” cheerleaders would scream in protest and lobby for an instant overturn of asset forfeiture laws.

The dirty little secret of asset forfeiture laws is that they were never intended to be applied consistently and even-handedly.  They’re designed to give law enforcement maximum flexibility in the act of determining who looks like they’re up to no good, and what kind of cash constitutes a “suspicious” and seize-worthy amount.  Ten grand in the briefcase of a clean-cut white dude in a business suit, getting pulled over in a BMW?  Chance of seizure: low.  Ten grand in the pocket of a black dude in a b-ball jersey, getting pulled over in an Escalade with spinning rims?  Chance of seizure: hell, yeah

In that respect, asset forfeiture laws are just like the earliest gun control laws: they’re a tool for selective enforcement, legal pretext for social control…and they’ll be used against the same people who are in support of them once the general opinion shifts to consider something else to be an even bigger threat than drugs. 

22 thoughts on “asset forfeiture abuses, episode 52,966.

  1. Ken says:

    Pretty much any positive law can become a tool of tyranny, thanks to the Miracle of Selective Enforcement.

  2. perlhaqr says:

    Ask yourself how that whole concept would go over with the conservative crowd if the police started seizing legally-owned guns from people who legally carry them

    Dunno, are they going to be seizing them from mostly blacks and hispanics?

  3. CStanford says:

    No dispute from me.

  4. farmist says:

    I’ve converted a couple of melanin-enhanced folks to our side of the 2A argument by pointing out the racist roots of gun control.

  5. ATLien says:

    If they have a gun and try to take your money, that armed robbery, and shoot the cops. Their aim’s gonna suck, so take your time for the headshot.

  6. Turk Turon says:

    Outstanding post!
    What was that item on the web a few months back about A.T.F. standing for “Always Think Forfeiture”? It was the theme for some sort of internal ATF “team-building” effort. They were using it to encourage their agents to focus their enforcement efforts on persons with tangible assets. Shame.

  7. MarkHB says:

    Really must keep a running list of “Never Visit” towns and “Never Travel” roads.

  8. Mike says:

    “If they have a gun and try to take your money, that armed robbery, and shoot the cops.”

    Actually, it’s funny you mention that… Texas’ laws on use of force do mention using deadly force against police who are badly overstepping. Section 9.31(c):

    (c) The use of force to resist an arrest or search is justified:

    (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

    (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

    Not so sure that applies, but I just think it’s awesome to see that in the penal code!

  9. drjim says:

    Just like in Mexico. Man, we’re getting more and more Third World everyday!

  10. steve says:

    They should be jailed like any other criminal.

    I’m curious about Mike’s comment, as I live in Texas. It’s very interesting that resisting arrest was included in law, which usually means that this situation has happened before, and needed a remedy.

    This whole thing is similar to ’eminent domain’, which is also very much abused.

  11. Vann says:

    http://www.wral.com/news/local/story/5049867

    Saw this and all my fears of the misuse of police powers came flooding to the surface. This even though the story only presents one side of the situation. There is no way to know what the authorities know or if there is a clear and present danger. I still question why a 16-year old North Carolina boy was taken to a Federal facility in Indiana to be held without bail; and why a judge issued a gag order. The stated (by the boy’s mother) charge of making a bomb threat just doesn’t seem to justify the response. If there isn’t much more to this than is contained in the story, heads should roll. Then again, it is a story written by a reporter.
    Sorry to leave this as a comment, but I wanted to see if the Wrangler had in thoughts on this and didn’t know how to get it to him otherwise.

  12. bt says:

    Why ask yourself how a conservative would react to something else? Why not stay on topic here? Would a liberal judge this differently than a conservative? What’s the basis for that? As a conservative, I advocate shooting these scum. that’s right – a fair trial, then a hanging. And that’s for this instance. Why do you think I would be more incensed if it were guns?

    Are you ridiculing conservatives for not caring? Do you have anything to support that? thanks for nothing.

    • Marko says:

      Asset forfeiture is an outgrowth of the War On Some Drugs, which is much more popular with conservatives than with liberals or libertarians.

      Also, when you pay me for my time writing this blog, you may start to tell me what kind of topics to write about, and how to address them. If you don’t like what I’m writing, feel free to move along…there’s no shortage of stuff for you to read on the Internet.

  13. like any position of power, law enforcement is subject to abuse and corruption (think politicians, union bosses and tv preachers as ready examples).

    that said, there’s nothing wrong with profiling; it’s become a dirty word due to the aforementioned abuse, but using historical percentages to identify likely criminals has its root in success.

    the war on (some) drugs is misguided, wasteful, and encourages the abuses you highlighted. but the war on (some) drug dealers is another matter; in the conduct of their business all manner of other crime, secondary to the profession but far more dangerous to the innocent public, is committed…and profiling works to prevent it.

    the problems are systemic; the w.o.d. targets minorities disproportionately because they are disproportionately represented in the drug dealing profession. but crying racism and calling for the heads of the cops who carry out a fatally flawed campaign is like scratching off moles when the tumors are deep and entrenched.

    stop the idiocy of illegalizing substances and you also end the incidental but obvious secondary ill effects. don’t demonize the valuable tool of profiling which is desireably used to identify those who would do us harm; just kill the roots of its abuse in the enforcement of senseless, victimless, corrupting laws.

    jtc

  14. MarkHB says:

    Can’t agree. Nothing’s good when the abuse of it becomes the standard, as has definately become the case with “profiling”.

    I know it’s shocking and mortifying, but people have this irritating thing of needing to be proven guilty before they can be penalised. It’s terribly inconvenient, but it’s the distinction between “civilised nation of law” and “facist bastardry”.

    Throw profiling in as an excuse behind asset forfeiture, and you’ll get abuse, as sure as tossing potassium into liquid water gives you an enthusiastically exothermic reaction.

  15. Marko says:

    Also, if you assume that profiling works, you also have to assume that the drug dealers are smart enough to run a multi-million dollar criminal enterprise, but not clever enough to figure it out and use clean-cut white people to shuttle the dope around.

  16. MarkHB says:

    Not counting the ground-level intel of not driving your huge pimp-wad through East Buckfug, Texas.

  17. ah, tag-team cognitive dissonance; expected from the one, not so much from the other. nice.

    that notwithstanding, demonizing an effective tool is easy in the abstract, but another story upcloseandpersonal. profiling is something you do every day when you avoid people and situations where conflict and danger seem likely, standing armed and ready to respond if need be…without even waiting for proof of evil intent.

    it’s a tool (and i know how much you boys hate those) that one of you will employ a lot more as your family grows out from under your watchful, protective eye…

    and even when the other of you decides not to inflict the perceived (profiled) hatefulness and harshness of the world on your heirs by refraining from propagation.

    jtc

    • Marko says:

      jtc,

      we’re talking about two different things here.

      We all “profile”. Everybody does it, because it’s simply part of our genetic makeup, and our hunter/gatherer heritage. We’re not talking about that kind of profiling here.

      Law enforcement profiling is a different thing altogether–a practice that targets certain people for enforcement simply on the basis of their appearance, or perceived ability to legally contest the seizing of their property.

      Read the article again. The seizings in question were almost exclusively performed on the property of blacks and Hispanics. Are you honestly telling me that only blacks and Hispanics deal drugs? Are you telling me that the drug smugglers were simply too dumb to avoid that little podunk town after their second or third courier got nabbed by that PD, on that stretch of highway?

      That’s the issue here–the blatant abuse of a law enforcement tool that causes much more damage to our civil rights than it does good in the War on Some Drugs. Sure they profiled, but not in a useful way. Their profile wasn’t “suspected drug dealer”, their profile was “minority who’s not likely to be able to afford a lawyer to contest asset forfeiture”.

      And as for the “tag-teaming”…come on, now. Don’t claim persecution just because I happen to agree with a commenter who disagrees with you. If your position is defensible, it shouldn’t matter how many people argue against it. (I notice that you didn’t try to address the points made in those “tag-team” comments, instead writing them off as “cognitive dissonance”.)

  18. no argument on the abuse in the story; carried to an individual extreme, it was embodied by the city cop (of hispanic descent) in the small town of avon park, fl about ten miles north of here. his profiling consisted of using any pretext to stop mexican males and preying on their inherent fear of authority and deportation, etc. to extort a few hundred bucks if he let them go.

    http://www2.tbo.com/content/2009/apr/30/011452/perez-again-arrested-official-misconduct/

    but i took your “tag-team” responses to my earlier comment as disingenuous; of course you know that the small-time couriers targeted in your original story are not the million dollar operators who insulate themselves from the dirty work; they’re just lowtones exploiting dumbass laws to make easy money providing what should be available through non-criminal channels. but if they weren’t doing that, they’d probably be robbing the quick-shop or jerking a gold chain off your neighbor’s neck; they are criminals of opportunity, and what is illegal or harmful to others is of no consequence to them. good cops can recognize them by how they look, where they hang, and what they do or don’t do (like work a regular job). yes, that’s profiling, just like you do when you avoid being around unsavory “types”.

    i agree that enforcement follows the path of least resistance, like everything else. street-level criminals are fairly easy pickin’s, and as you say are less likely to offer up a strong defense. as screwed up as it is, policing is geared to percentages of results, that’s just the way it is. but if quotas for those who are pinched are based on minority status, what the hell is that, reverse profiling?

    i made my opinion of the laws and systemic failures that make the abuses in your story possible pretty clear, and that needs to be the focus of reform. but taking away a proven method of identifying those who would harm or otherwise infringe the rights of innocent citizens does nothing to that end.

    jtc

  19. MarkHB says:

    Hum. Nope, I’m still of the opinion that if a power’s abused by a government agency too often, then it’s time to say “Sorry, you can’t be trusted with this power” (in this case profiling) and take it away from them again. It’s as simple as that.

    When it’s a case of “We can bust every black guy and take all his money”, then that’s not using profiling for target discrimination, it’s using it in lieu of the judicial process. In this case, it’s pretty transparently just for podunk pocket-lining. And so they should have their powers curtailed, and sharply, because they’ve proven they can’t be trusted with it.

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