“IF IN DOUBT…TAKE IT!” Government Officials Reveal What They Really Think About Civil Forfeiture
There are three kinds of people in this world: Those who’re outraged by civil forfeiture, those who don’t know what it is, and those who profit from it.
Without even needing to charge someone with a crime, law enforcement can seize and keep cash, cars and even homes, by exercising civil forfeiture. Now the Institute for Justice has uncovered recordings of government officials from across the country making unsettling comments about this controversial power:
- One city attorney called his legal documents a “masterpiece of deception” and has won 96 percent of his forfeiture cases.
- An assistant district attorney takes property, even from owners who have been acquitted of a crime, because “people are not found innocent, they are found not guilty.”
- One government official doesn’t want to disclose information about civil forfeiture, because it might become a “bullet-point for people that are trying to fight the program.”
- A prosecutor teaches other attorneys how to take property from innocent people. He even offers this piece of advice, “IF IN DOUBT…TAKE IT!”
Government Official Comes Up With a “Trap” to Seize Homes, Even in States That Legalized Marijuana
Speaking at a forfeiture conference on September 10, 2014, Pete Connelly, City Attorney for Las Cruces, New Mexico, detailed his plan that would let police take the homes of people caught with tiny amounts of marijuana, even in states where the plant is legal:
“I got to thinking this morning, in the paper that everybody is running around liberalizing marijuana or thinking about it. Putting it on the ballot. Taking it off the ballot. And I thought, boy, what a trap. You liberalize marijuana so somebody can sell it, they sell the marijuana out of the house, then you seize the house, which is like 10 bucks of marijuana and you [the police] get a $300,000 house. What a deal. That’s really exciting. They get what they want, and you get what you want. And the title of that article in the [Wall Street] Journal was ‘What’s Yours Is Theirs.’ I want to turn it around as ‘What’s Theirs is Yours.’”
It sounds terrifying (and it should be). But this can already happen due to an obscure federal program known as “equitable sharing.” Police can circumvent state laws if they collaborate with a federal agency, forfeit the property under federal law and then earn up to 80 percent of what the property is worth.
The Institute for Justice represented Tony Jalali, a landlord in Anaheim, Calif. who rented space to a medical marijuana dispensary. That dispensary sold $37 worth of cannabis to an undercover officer, who posed as a patient with a doctor’s recommendation. Jalali never bought or sold marijuana. Nor did the government charge him with a crime.
But under equitable sharing, Anaheim police teamed up with the DEA to bypass California state law, which not allows only medical marijuana, but also requires a criminal conviction to forfeit real estate. After IJ sued, the government backed down and dropped the forfeiture case. But this loophole remains unchanged, so other property owners are still vulnerable.
Legal Documents are a “Masterpiece of Deception”
During one of his presentations, Connelly offered tips on how to write an effective forfeiture complaint (i.e. the legal papers the government files). If done well, “the complaint is, what I call, a masterpiece of deception,” filled with statements that are “very hard to deny.”
The Government Wins 96 Percent of Forfeiture Cases
That deception pays off. When it comes to forfeiture cases, Las Cruces has a 96 percent success rate. For the rest, “we make deals” to settle their cases. Connelly also thought it was “amazing” no owner has appealed a motor vehicle case since 2006. So like a Vegas casino, Pete Connelly almost always wins.
“We’re Not Dealing With the Beemer Crowd”
If civil forfeiture truly targeted drug kingpins, then police would regularly seize all kinds of high-end, flashy cars. But according to Connelly, “we’re not dealing with the Beemer [BMW] crowd so much. We deal with just down-to-earth human beings that have their cars seized.” He even joked, “under our ordinance, we have cornered the 1978 Cadillac motor vehicle part of southern New Mexico.”
Cops Are on the Lookout to Seize a “Good Car”
According to Connelly, “we always try to get, every once in a while, maybe a good car.” He recounted how police tried to seize a 2008 Mercedes-Benz, during a stakeout at a bar: “The cops were undercover and were like ‘Ahhh!’” when they saw it. Had police forfeited the Benz, it would have been “the big seller” at a police auction. But they acted too hastily and so the car was ultimately returned to its owner.
Civil Forfeiture is “Self-Serving” But “Don’t Feel Bad” About It
During a presentation, Connelly let it slip that he thinks forfeiture ordinances are “self-serving.” Though if any law enforcement officers feel guilty or remorseful about seizing property, Connelly paraphrased a New Mexico court decision to assuage them: “If you make money on motor vehicle seizures, it’s ok, don’t feel bad.”
The Government Doesn’t Want To Disclose Data on Civil Forfeiture Because It Might Help “People That Are Trying to Fight the Program”
Also at that forfeiture conference in New Mexico was Stanley Harada, Chief Hearing Officer for Albuquerque and a “significant architect” of that city’s vehicle forfeiture law. He was asked just how much Albuquerque takes in from civil forfeiture. While he didn’t have that information, Harada did drop this bombshell: “I think they would rather not talk about those numbers because then it starts becoming more of a bullet-point for people that are trying to fight the program.”
In New Mexico, agencies are not required to collect data on how much revenue civil forfeiture has raised. That clearly prevents the public from holding police and prosecutors accountable for their actions. Moreover, if voters were aware just how profitable seizing property can be for the government, they’d be more likely to demand reforms.
Access to basic information about civil forfeiture is surprisingly hard to come by. According to the Institute for Justice’s report, “Policing for Profit,” about 30 states either do not track or collect forfeiture data, did not respond to IJ’s FOIA requests or they provided information that was unusable.
New Jersey Legal Academy Offers “Entertaining” Course on Civil Forfeiture
Garden State CLE, a “virtual legal academy,” offers online continuing legal education courses (CLE) to attorneys in New Jersey. The group has an almost 2-hour program on civil forfeiture, which Garden State CLE describes as when “[the cops] take all your stuff.”
That might sound both dull and deeply disturbing.
But for Garden State CLE, civil forfeiture is “entertaining,” with their course featuring images from—no joke—Spongebob Squarepants. The program consists primarily of a lecture by Sean McMurtry, a prosecutor for Mercer County, New Jersey, and its accompanying lesson plan features tips like, “IF IN DOUBT…TAKE IT!”
On the penultimate slide, the presentation reveals the government’s “WORST CASE SCENARIO” for property seized under civil forfeiture: “WE GIVE IT BACK.”
The Government Wants Your TV
Typically, McMurtry and Mercer County forfeit “assets that can be utilized by law enforcement.” For instance, flat screen TVs are “very popular with the police departments…every flat screen, so far, that we’ve taken has been put to use in a police headquarters or in a training room.” Yet it’s not always clear if a TV was in fact purchased with the proceeds of a crime.
Then there are properties like cell phones, which are far more likely to be related to crime (ever watch The Wire?). Yet as McMurtry explains, “we really don’t file for forfeiture of cell phones. There are so many of them out there. Everybody’s got one. We really don’t have a need for it but we could if we wanted.”
Likewise, when police seize computers, it’s often in relation to sex crimes. But computers “go obsolete within a couple of years. We’re not really looking for a lot of computers, everybody’s got one already. But sometimes we do file for them simply because we just don’t want the bad guy getting it back.”
Criminals Don’t Actually Own Most of the Cars We Take
Civil forfeiture is often defended as a way to deprive criminals of their ill-gotten gains. Yet in the Garden State CLE presentation, McMurtry made an eye-opening revelation: “The bulk of the vehicles that we take in are registered to someone other than the defendant.” In other words, innocent people are losing their cars because someone else may have committed a crime with their property.
Prosecutor Teaches How to Take Property from Innocent People
To better protect owners, New Jersey, among other states, lets innocent owners reclaim their property, if they file an “innocent-owner defense.” But unlike in criminal cases, where a defendant is presumed innocent until proven guilty, the burden of proof is switched for property owners: They have to prove they were “not involved in or aware of the unlawful activity” committed with the property.
Yet in his presentation, McMurtry teaches “HOW TO DEFEAT THE ‘INNOCENT OWNER DEFENSE.’” As he put it, “the innocent owner defense, contrary to popular belief, is not as strong a defense as everyone on the street thinks it is. In fact, it’s a very weak defense and there’s easy ways to overcome the innocent owner defense.”
If You’re Acquitted of a Crime, You’re Not Innocent, Just “Not Guilty”
In Philadelphia, law enforcement has transformed civil forfeiture into an industry. Over 11 years, the city has taken almost 1,200 homes and earned $64 million through civil forfeiture. The Institute for Justice recently filed a major class-action lawsuit in federal court to stop these abuses of power.
Beth Grossman, who heads the Public Nuisance Task Force in Philadelphia, recently appeared on 1210 WPHD with Dick Morris in an attempt to defend that city’s massive civil forfeiture program:
Dick Morris: But if the jury finds that there was [no drug dealing], and finds that the person is innocent, and you forfeited the house, you don’t give it back. You keep the money.
Beth Grossman: Well, first of all, people are not found innocent, they are found not guilty, because the common law cannot achieve—
Dick Morris: That is hysterical. You’re saying that it’s okay to seize the house because they’re found not guilty? Rather than innocent? Are you really saying that?
Civil Forfeiture Might Pay My Salary? No Comment
According to records obtained by the Institute for Justice, Philadelphia spends 40 percent of its forfeiture revenue on salaries, including salaries for the prosecutors who file civil forfeiture cases.
Dick Morris: Is your salary paid by those proceeds?
Beth Grossman: You know what, honestly, I cannot comment on that, because, again, that is part of this lawsuit, and I’m not going to get into anything that might be covered by that.
Civil Forfeiture is a “Gold Mine:” “We Could Be Czars”
All those millions Philadelphia seized are an inspiration to other government officials.At the forfeiture conference in New Mexico, Connelly called Philadelphia’s program “amazing” and described seizing homes as “a gold mine:”
“Just think what you could do as the legal department. We could be czars. We could own the city. We could be in the real estate business. We could become Houston, Texas, no zoning. Whatever, who knows. But it’s amazing that is going on.”