Un-Civil Asset Forfeiture

When the American Civil Liberties Union and conservative Republicans fight, it’s no surprise. But when they fight together for a common cause, you have to sit up and take notice.

Common Cause of Georgia, the ACLU of Georgia, Atlanta Tea Party, Southern Center for Human Rights and other groups joined in a bipartisan group to hold law enforcement and government officials to greater scrutiny when they seize property during investigations.

And the abuse of power for profit is not just in Georgia. In Michigan, the IRS seized a grocery store owner’s bank account, claiming they suspected him of laundering money. The grocer made cash deposits in the bank every night, to prevent robbery, and because of  insurance policy limits. The under-$10,000 deposits were a red flag to law enforcement.

And it’s not just at the state level. Even states that curtail the government’s right to seize property now are now getting a grimy hand from the federal government. According to the Institute for Justice — a civil liberties law firm involved in what The Wall St. Journal described as “guerrilla legal warfare on behalf of individual freedom” — a federal practice called “equitable sharing” enables state and local police and prosecutors to circumvent the civil forfeiture laws of their states for financial gain.

Civil asset forfeiture is the government’s power to take property suspected of involvement in a crime. What makes it uncivil is that the government can seize money and property without even charging the owner with any wrongdoing.

In 2012, Jeffrey, Richard and Mitch Hirsch had their food distribution business — and their personal lives — turned upside down when the government raided their bank account and seized $446,000. Their crime? There was no crime. They simply set off a false-positive on the feds’ alarm by making cash deposits of under $10,000. The government made a federal case of it because it suspected the Hirsch brothers were “structuring” deposits to avoid reporting requirements.

Even though the brothers have never been formally charged with any crime or illegal activity, the government has refused to release the cash.

Carole Hinder has run a small Mexican restaurant in Spirit Lake, Iowa, for 38 years. All of Mrs. Hinder’s customers pay in cash, so — like the Michigan grocer — she makes frequent deposits at the bank. Because her deposits were less than $10,000, the federal government used civil asset forfeiture to justify a secret warrant and seize Mrs. Hinder’s entire bank account — nearly $33,000 — even though she was never charged with any crime. And they are keeping the money.

This is actually where the issue takes on a new dimension and gives a whole new definition to “criminal justice.”

Under the law of Eminent Domain, the government has a right to appropriate private property for public use. But the Fifth Amendment to the Constitution forbids the confiscation of property “without just compensation.” What is called “just compensation” is, itself, a legal battleground. But, clearly, civil asset forfeiture — which offers no compensation — is unjust.

Civil asset forfeiture, as practiced today, grew out of a perceived need to use extra-legal means in the war on illegal substances  and, later, for Homeland Security to fight terrorism — even where they only suspect there is suspicion.

The problem is that power corrupts. One only needs to remember the great hero of the French Revolution, Maximilien de Robespierre. When he was one of the leaders of the Revolution, he was known as “the Incorruptible.” After he took power, he unleashed the “Reign of Terror,” turned on his friends, and sent thousands to their death under the guillotine.

In what the Institute for Justice calls “Policing for Profit,” police have pulled over cars for no apparent infraction, confiscated the car and the driver’s and passengers’ cash and then inequitably shared the cash and cars with the local precincts and officers. There is a built-in incentive for law-enforcement officers to go beyond the spirit of the law. The modus operandi is confiscate first and don’t ask questions later. And the entire burden of proof of innocence of wrongdoing is upon the hapless victim. Often, the costs of long, drawn-out legal proceedings prevent victims from defending themselves.

If all of this sounds like something from Stalinist Russia, North Korea or Sadam-era Iraq, you’re beginning to get the idea. There is one important difference. While the abuse of power under civil asset forfeiture is deplorable, it is still a far cry from the middle-of-the-night knock on the door … and people disappearing, never to be heard from again.

America is still a country where people can fight for justice … and sometimes win. And, with all due respect to New York’s — and America’s — finest, a system that allows and encourages abuse must be changed. It is a stain on the honor of everyone in law enforcement and government.

Most urgent is that, as The Wall St. Journal pointed out, President Obama’s nominee for Attorney General, Loretta Lynch, must be scrutinized for being “aggressive in pursuing civil asset forfeiture, which has become a form of policing for profit. She recently announced that her office had collected more than $904 million in criminal and civil actions. …”

This article appeared in print on page 10 of the November 13th, 2014 edition of Hamodia.