Sen. Rand Paul and Rep. Tim Walberg, both Republicans, have re-introduced one of the most important pieces of legislation to come forward in decades that will secure the rights of Americans to be safe in their possessions and properties — a rollback to civil asset forfeiture laws.
This is huge. This should be bipartisan. And this, the Fifth Amendment Integrity Restoration, or FAIR, Act, better pass in the Republican-led House and Senate in jig time or else the GOP might as well join the Democratic Party in celebratory shedding of our country’s Constitution.
Let’s be clear on this one point: Civil asset forfeiture is an evil.
It’s not a pro-police program; it’s a constitutional evil.
It gives law enforcement the right to strip Americans who’ve not been convicted of any crime — and in many cases, not even formally charged — of their properties, including cash, cars, homes, airplanes, boats, etc. How’s it work?
If police suspect you’re tied to a drug-related crime, they can take whatever properties they suspect you’ve used in the commission of that crime — your cell phone, your car, your home, your parents’ and family members’ homes. And then you, the supposed innocent-until-proven-guilty party, have to go to court to prove you didn’t commit that crime and therefore, should get your properties returned.
You have to prove your innocence.
This is madness — outrageous, unconstitutional, egregious abuse-of-power type madness. And it’s a madness made worse when Congress, backed by the Justice Department, the Treasury Department and the U.S. Marshals Service — the federal entities that oversee and implement the whole civil assets forfeiture program — created an enticement mechanism for local police to ratchet their seizures. In the 1980s, driven by the desire to fight drug crimes, Congress created a fund that allows various levels of law enforcement to share in the seizures — an Asset Forfeiture Fund and Equitable Sharing program that distributes the money from seized properties back to local police forces.
Local governments love it because it frees up funding that would otherwise go to police. Local police love it because it gives them a real incentive — a big ol’ pot o’ money — to go after drug crimes and drug suspects.
Know who hates it?
The oft-innocent victims of asset forfeiture. And those who know the Constitution and the basic principles of the fifth and fourth amendments. Those are the ones that say, respectively, Americans shall not “be deprived of life, liberty, or property, without due process of law,” and the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
On that last, the amendment also specifies warrants must be issued before properties can be seized.
Now look at the what’s happening today, because of the laws created by Congress that bypass these amendments: The amount of forfeited assets in 2012 alone was $4.3 billion.
People have been wrongfully stripped of cash and properties.
Police have been given powers and authorities they go beyond proper and appropriate, and have abused these seizure laws to the point they’re now generally dubbed “cash cows” for localities.
In September 2012, the American Civil Liberties Union reached a settlement with Tenaha, Texas, authorities who were accused in a class action lawsuit of wrongfully pulling over a thousand or so mostly black and Hispanic motorists for no other apparent reason except to allow police to confiscate their properties. One case involved a 32-year-old black man, James Morrow, who was pulled over by police for driving too close to the white line. Despite the fact no crime was committed, and no warrant issued, police ordered him from his car, seized his vehicle and $3,969 in cash, and jailed him. He was never charged with a crime — but had to spend $3,500 on an attorney to prove his innocence, just the same. In the end, he was left with $400 and an attitude of utter disbelief that modern day justice could allow such an unwarranted seizure.
Another man in that same class action lawsuit, Dale Agostini, suffered even greater loss. Agostini, a Maryland restaurant owner, had been driving with his fiancee, their infant and an employee through that same Texas town, Teneha, to purchase equipment for the business. He carried a large amount of cash, $50,291. Why? It really doesn’t matter — this is America, after all — but nonetheless, he told police, when he was pulled over, that it was to get better bargaining power with restaurant equipment sellers. They give discounts for cash buys, he said. Police unleashed a drug sniffing dog on the car, found nothing, but then said the simple presence of the dog served as a search warrant, and proceeded to rifle through the vehicle. Ultimately, police accused Agonstini of money laundering and took all the cash, six cell phones, an iPod and the car. And oh yes, they sent the infant to child protective services and Agostini, his fiancee and employee to jail.
Neither Agostini nor his fiancee or employee were ever charged with a crime.
But it took months — a long-running court fight to prove his innocence — for Agostini to win back his cash.
In another case of government run amok, an elderly couple who had lived in their West Philadelphia home for roughly 50 years were very nearly tossed into the streets after their son, 31, allegedly purchased a small amount of marijuana on their front porch from an undercover officer. The mother was 68; the father, 70, and a pancreatic cancer victim. And police, after making the arrest of the son, told them the state was going to take their house and sell it at auction. Why? They said it was used during the commission of a drug crime. But here’s the kicker: the auction would occur before the son’s case had even moved to the point of conviction.
How is that legal — how is that America?
The couple was granted a reprieve after the police officer who showed up to evict them took pity and awarded them time to fight the forfeiture and prove their innocence. But again, how is that American to put police in the powerful spot of deciding whether an elderly woman and her sickly husband can stay in their home of 50 years?
To give law enforcement the power to take someone’s home based on an allegation, not conviction, warrant and court or jury order?
That’s a drop in the bucket of reasons why civil asset forfeitures must be reeled in — dramatically. FAIR actually abolishes the financial incentive for law enforcement to participate in the program by putting proceeds in the hands of Congress and its general fund.
And FAIR was actually first introduced by both Paul and Walberg in 2014 — but went nowhere.
Republicans, leading both House and Senate, have no Democratic cloaks to hide behind now. If this bill doesn’t advance, it’s solely because of GOP choice. And what such a choice would say is this: The Republican Party puts government interest ahead of citizen right — police power above constitutional concern. And that right there, when you cut through the excuses, is a recipe for a police state system.
Cheryl Chumley, as author of “Police State USA: How Orwell’s Nightmare Is Becoming Our Reality,” wrote extensively about forfeiture laws and their effects.