Former Nicholas County, Kentucky Sheriff Leonard Garrett, whom I have written about before here and here,has been sentenced for receiving money stolen from his county’s asset forfeiture fund. There’s not much new in the sentencing that we didn’t already know from the plea bargain three months ago (he’ll avoid jail but has to pay restitution, etc.), but Garrett’s comment after sentencing grabbed my attention:

Garrett said he wishes the sheriff’s office had never received the federal money.

“If I’d never seen that, I’d still be sheriff,” he said.

Sure, that’s completely self-serving, and Garrett should be punished (more severely, in my opinion) for stealing from the public coffers, but there is truth in the statement. When the federal government lays out money with essentially no oversight on how it’s spent, people are bound to misuse it. The whole point of our constitutional system of government is that we don’t trust any individual with power, so we attempt to hold everyone accountable with checks and balances. The Founders knew that unchecked power would always invite corruption, and that’s still the case today.

How many scandals like this will we have to witness before we give the power to appropriate forfeiture dollars back to legislators where it belongs?

The Rest of the Story

Posted: November 9, 2011 in Uncategorized

I always feel validated when I see my opponents on the defensive, even if I’m not necessarily the one who put them there. So I couldn’t help experiencing a twinge of gratification when I read Lt. Chris Piombo of the Lodi, California Police Department “setting the record straight on asset forfeiture laws” in the Lodi News-Sentinel. He doesn’t write anything false, but he only tells half the story, and here’s where he gives the game away:

There seems to be a misconception that law enforcement as a whole seizes money, cars, homes, etc., and that we get to keep the money or profits from sale to supplement our budgets or that we get to use things such as seized vehicles for our own benefit. This is not necessarily the case.

True, it’s not necessarily the case. Piombo continues by detailing the requirements for forfeiture in California and how forfeiture funds must be spent under California law. What he doesn’t tell his readers is how the federal forfeiture law and its equitable sharing program work.

Under federal law, property can be forfeited with a preponderance of the evidence (as opposed to the beyond a reasonable doubt standard used in criminal trials) and without any criminal conviction. Also, up to 80 percent of the proceeds can be sent back to the local law enforcement agency that initiated the forfeiture. Those funds are supposed to be spent on law enforcement purposes, but there is little oversight on equitable sharing funds. Iwrote about the consequences of that lack of oversight just last week, pointing out that a prosecutor in Piombo’s own state was using her equitable sharing dollars as a de-facto campaign fund.

Furthermore, the lack of due process rights for property owners at the federal level and the relative generosity of the equitable sharing program towards local law enforcement agencies encourage police and prosecutors to work around their state laws. So, yes, California has a relatively stringent asset forfeiture law, but it doesn’t make much difference when local law enforcement can ignore those requirements by taking their cases federal.

Occupy Wall Street: An Addendum

Posted: November 4, 2011 in Uncategorized

I was extremely pleased to see my take on the original Occupy Wall Street protest posted online today, but I feel it may already be largely outdated. I wrote the piece in early October as an attempt to understand what the movement was all about. Although I never fully agreed with what most protesters were advocating, I was surprised to find myself generally sympathetic to their complaints.

Now, several of the occupations, Oakland in particular, are fighting for their survival against police assaults. This video of the police raid on Occupy Oakland brings to mind the assaults of Hosni Mubarak’s thugs on the protesters in Tahrir Square this winter.

It gets worse. This video shows a police officer firing a flashbang grenade at a group of people attempting to help a young protester who had just been wounded by a tear gas canister.

At Occupy Nashville, the police even seem willing to arrest members of the media and charge them with resisting arrest for covering the story. Regardless of how you feel about the original message of Occupy Wall Street, this should be very alarming. These people are American citizens exercising their First Amendment rights, and they shouldn’t be attacked like an invading army.

I recently reread “Strange Rumblings in Aztlan,” Hunter S. Thompson’s account of the controversy surrounding the killing of journalist Ruben Salazar by a L.A. sheriff’s deputy (using a tear gas cannon, incidentally) in 1970, and one line struck me as particularly appropriate today: “When the cops declare open season on journalists, when they feel free to declare any scene of ‘unlawful protest’ a free fire zone, that will be a very ugly day–and not just for journalists.”

Why the Occupiers started protesting is immaterial for the moment; that they have a right to protest is paramount. If we abandon that, we abandon everything that makes this country worth preserving.

San Diego City Beat requested an accounting of how San Diego County’s district attorney Bonnie Dumanis spent her office’s forfeiture funds since 2009. What they got back was a two-page, typo-filled document that apparently took Dumanis’ office four-and-a-half hours to prepare. But more distressing than that lack of basic accounting standards is what the DA has been spending the money on:

We decided to take a closer look at Dumanis’ spending after receiving a press release that her office was providing $50,000 in asset-forfeiture funding for the 25th annual “Light the Night Against Crime” 5k run/walk. The race raises money to pay rewards to anonymous tipsters who call the San Diego Crime Stoppers hotline.

According to the typo-filled spreadsheet, in 2009, Dumanis gave $53,000—18 percent of the money her office spent—to the California District Attorneys Association. She was president of the organization at the time. That same year, another $2,500 went to the California District Attorney Investigator’s Association, an organization that recently endorsed Dumanis’ bid for mayor of San Diego. She also spent $415.82 to send Lincoln High School students to Six Flags, $17,250 to produce a short film and $60,000 to install cameras along the border. In most cases, the DA’s office did not provide the purpose of the grants, only the recipients.

You can see the whole list here. Most of the payments seem designed to curry favor with San Diego County voters, not enforce its laws more effectively. The fact that Dumanis openly spent the office’s forfeiture money on such questionable activities is prima facie evidence that forfeiture funds are not monitored closely enough in California. Of course, this could (mostly) be avoided if forfeiture funds were all deposited into the state’s general fund to be appropriated by the legislature. That’s by no means a perfect system, but at least in a legislative body, one person does not have absolute discretion over how money is spent.

As part of the ongoing federal crackdown on medical marijuana in California, Melinda Haag, United States attorney for the Northern District of California, has set her sights on well-known dispensary owner and activist Richard Lee. Lee founded Oaksterdam University, which instructs people on how to grow medical marijuana, and helped fund California’s Proposition 19, which would have fully legalized marijuana in the state if voters had approved it in 2010. Last week, Lee was forced to relocate his dispensary Coffeeshop Blue Sky after his former landlord received a letter from Haag threatening “criminal prosecution or forfeiture of the property” if the dispensary was not evicted.

It’s hard to avoid the conclusion that Lee is being targeted at least in part because of his advocacy for the reform of marijuana laws. As longtime drug law reformer Tom Angell observes in the article, “By sending a threat to Richard it seems like they’re trying to send a message to the movement…But I really don’t know what the message is besides ‘Be afraid; we know who you are.’”

The US Attorneys in California don’t need any more complex message than that. They want to cow reformers into silence, and they are using the law to bully those who dare challenge the status quo. Unfortunately, federal asset forfeiture laws are so broadly written that a determined prosecutor such as Haag could probably seize any piece of commercial property–not just medical marijuana dispensaries–she wanted and still operate within the law. The threat from forfeiture therefore extends well beyond property rights; when agents of the government can take property to squelch speech they don’t like, it poses a threat to the very notion of democracy.

Libertarian writer Wendy McElroy provides a concise overview of civil asset forfeiture laws in the United States with the recent Motel Caswell seizure in Massachusetts as the key example. Her conclusion is worth quoting extensively:

Not only does civil forfeiture create abuses, as [Institute for Justice President Chip] Mellor points out, it itself is an abuse — an abuse of the very concept of justice. If civil forfeiture is carried to its logical conclusion, every single motel and hotel in America could be confiscated by one government or another.

So why the Caswells and not the local Holiday Inn? In the answer lies another moral of their story. On the Judge Napolitano show, Russell Caswell exclaimed that he and his wife “always worked with the police as much as we can.” Elsewhere he protested,

“It is un-American that I am being treated like a criminal when my family has always worked with the police to quickly report and resolve any crime that has occurred on our property. Rather than work with us, the federal government and our local police department have blindsided us and are working to take everything we’ve worked so hard to earn.”

The moral? Be very careful about reporting a crime to the police. You never know when you are turning yourself in. Or, rather, you may be turning in your property to be punished for its criminal acts.

The Caswell case also gives lie to the claim by U.S. Attorney Richard Callahan, who is prosecuting the Camp Zoe forfeiture, that his “office is capable of distinguishing between a music festival with incidental drug use and a drug festival with incidental music.” Perhaps individual offices are capable of making that distinction, but they don’t actually make it. After all, the federal government is trying to take the Caswells’ motel even though only an incidental proportion of their guests have been connected with drug activity.

The reason prosecutors don’t make that distinction is that the law doesn’t require them to; a motel where someone smoked a single joint could be subject to forfeiture just as much as a drug lord’s house. Federal forfeiture laws are so lax that almost any piece of private property is fair game, and as long as that’s the case, we are all imperiled.

My parents own two flower shops in my hometown, and growing up I worked there after school and every summer. One day when I was 17, I had to deliver an arrangement to a nursing home just west of town. I viscerally disliked nursing home deliveries because the institutions generally smelled horribly, and from the moment I walked in, every resident not totally given over to dementia would stare longingly at the flowers, silently (most of the time, anyway) beseeching me to remind them however briefly that someone outside of those walls still cared about them. On top of all that, I got somewhat lost on the way there due to my relative inexperience.

Upon entering, I was relieved to find that this home was far nicer than the others, clean and with individual apartments for each guest. I found the specified room and handed the bouquet to a pleasant elderly woman, who was overjoyed to receive it. When I returned to the shop, my dad informed me that the nursing home had just called. Not only had I delivered the arrangement to the wrong room, I was at the wrong place altogether–the correct nursing home sat just down the road. I returned shamefaced and apologized profusely to both the woman and the staff (not to mention my parents) for the mix-up. I had screwed up, and it was only right that I take the blame.

Many police departments in this country do not seem to follow that standard of common decency, however. Take this case from Pontiac, South Carolina:

A Gibbs Road couple came home from work Thursday to find their home surrounded by Richland County sheriff’s deputies, their front door kicked in and their home ransacked.

Deputies were executing a search warrant at Wanda and Reginald Blanding’s home Thursday, after drug agents said a confidential informant “made a controlled purchase of crack cocaine from an unknown black male at the location,” according to the search warrant…

The informant told investigators the drug buy was made at 402 Gibbs Road. That’s where the sheriff’s drug unit staged its raid, looking into the one drug purchase the informant alleges happened there.

“They told me why they were here and I was like, ‘Okay, no one is supposed to be here. No one sells drugs out of this house,’” said Wanda.

Reginald is the only black male that lives at the home. He says when he arrived after the raid, deputies never searched him for drugs and never asked to look through his two cell phones even though the search warrant states that’s one of the things deputies were after.

Reginald says deputies told him they had his house under surveillance and know the drug buy went down.

The Blandings deny there ever was a drug buy at their home and think deputies got bad information from their informant.

Wanda says deputies emptied nearly every drawer in the home, searched through the attic and their daughter’s bedrooms.

Sheriff’s Capt. Chris Cowan says deputies made a purchase from the home and had every right to search it. “The drugs that we purchase were out of that home, we purchased from a family member of that home,” said Cowan. “We purchased the drugs out of that home.”

The only people who live there are the Blandings and their three high school-aged daughters…

Wanda and Reginald just want an apology and their door to be fixed.

“Evidently they made a mistake and instead of them saying we’re sorry, or they just didn’t show no remorse, it was like, okay, we’re the police and we’re going to do what we want to do and that’s just the way it is.”

The sheriff’s office says an apology is just not happening, and they’ll continue investigating this case until they make an arrest.

If police had hit the right house, I’m inclined to think they would have turned up some evidence to support their claim. Nevertheless, in the face of complete absence of evidence, the police refuse to so much as apologize for ransacking this couple’s home. The police, like government as a whole, are fundamentally unaccountable to the public. They can coerce tax dollars from us, so it really doesn’t matter to them if they destroy our property, constitutional rights, or even our lives. Until government agencies face real consequences for this kind of sloppy work, you can expect it to continue. Just don’t expect them to lose a minute’s sleep over it.

Link via–who else?–Radley Balko.