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Forfeiture reform (?)

Demetrius Harris can tell you all about "adoptive forfeiture" and "equitable sharing." Back in May 2010, Mayfield Heights cops stopped Harris' car and found $15,000 in a paper bag on the front seat.  They turned the money over to the DEA.  Harris filed a replevin action against the city seeking return of the money, but the trial court granted summary judgment to the city, and the 8th District affirmed

Here's how it works.  The city had no possibility of retaining the funds under Ohio's forfeiture law, because it would have been required to prove that the funds had been "involved in the offense," and Harris was only charged with driving under suspension.  The Federal forfeiture laws are much less demanding; basically, the money is forfeited unless the defendant contests it, and if he does he has the burden of proving that it wasn't contraband.  (As a result of those hurdles, about 80% of Federal forfeitures go uncontested.)  And under Federal law, a Federal agency can accept any items that were seized by a state or local agency, at which point fiction is created that the Feds were the ones to have received it.  That's what happened to Harris:  the court held that the city no longer had the money, the Feds did.

That's where equitable sharing comes in:  the Feds will return about 80% of the money "seized" in that fashion to the state and local agencies.  So the City of Mayfield Heights police department, which couldn't have taken a dime of Harris' money under state law, got about $12,000 of it.

Last week, Attorney General Eric Holder put an end to that. 


It's difficult to understate the significance of the two policies to state and local police.  Last year, police agencies received $600 million through equitable sharing arrangements   And keep in mind, that money goes into the police department's budget; money seized by forfeiture under Ohio law goes into the state's general fund.  The Camden County, Ga., sheriff used money he got from the program to buy a $90,000 sports car and a $79,000 boat for the department.  The Miami police raked in $19.3 million over just three years, which, according to the Miami Herald, they used for parties, trips, and fancy equipment such as "a 35-foot boat powered by three Mercury outboards" and "a mobile command truck equipped with satellite and flat-screen TVs."

It's also difficult to overstate the abuses of the system, many of which are chronicled in Policing for Profit, a 2010 report by the Institute for Justice.   Or you can look at what happened to Russ Caswell, the owner of a motel in Lowell, Mass.  The Federal government sought forfeiture of the hotel, worth $1.5 million, because 15 drug-related crimes had occurred on the property in the past 14 years.  (During which time, the judge who heard the case noted, the motel had rented out 196,000 rooms.)  After a four-day trial, the judge ruled against the government, faulting the government for engaging in "gross exaggeration" and misstatements of fact.  Of course, by that time Caswell had spent $100,000 of his own money on attorney fees.  (The Institute of Justice represented him for free after that.)

So what did Holder do?  He announced that henceforth, Federal agencies would no longer accept "adoptive forfeitures" of cash, cars, and other property.  There are limited exceptions, including firearms, ammunition, explosives, and property associated with child pornography.  But drugs isn't one of the exceptions.

But there may be another exception, which isn't nearly so limited:  it doesn't apply to any joint enterprise between the Feds and state or local authorities, like joint task forces or "seizures by state and local authorities that are the result of federal-state investigations or that are coordinated with the federal authorities as part of ongoing federal investigation." 

Critics claim that this threatens to swallow the rule.  There are hundreds of "multijurisdictional task forces" that involve the Feds, and Eapen Thampy, the executive director of Americans for Forfeiture reform, noted that "virtually every drug task force I know of has a federal liaison on call."  Radley Balko of Reason, on his Washington Post blog, says the exception is "less troubling" if it only applies "to those investigations in which federal law enforcement personnel are actively involved." 

To be sure, Holder's rule has benefit.  In 2003, Nebraska state troopers took $124,700 from a motorist named Emiliano Gonzolez and turned it over to the Feds.  Gonzolez claimed it was intended to be used to buy a refrigerated produce truck, but a Federal appeals court nonetheless upheld the forfeiture, because Gonzolez had the burden of proving it wasn't drug money.  The forfeiture wasn't possible under Nebraska law, because there the government has the burden of proof, beyond a reasonable doubt.  Holder's rule will stop something like that.

What else it stops remains to be seen.  And Holder might not be the last word on it.  There's a bipartisan bill being introduced in Congress to rein in forfeiture laws.  When liberals and conservatives agree on to fix something nowadays, you know it's a major problem.


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