""When they came for the fourth amendment, I did not
speak out;
I didn't deal drugs.
When they came for the fifth amendment, I was silent: I owned
no property involved in crimes.
When they came for the sixth amendment, I did not protest . I
was innocent.
Then they came for the second amendment, and I said nothing, I
didn't like guns...
And then, at last, they came for the first amendment, and I could not stand
up, because I could say nothing at all."
--Author Unknown
"Uncivil Forfeiture"
by Darryl Fruchter
© April 17, 1998
Donald Scott was a wealthy, 61 year old recluse. He lived on $5 million, 200 acre ranch in Malibu, CA. In 1992, the Los Angeles County Sheriffs Department received a tip that Mr. Scott was growing marijuana on his property. The reports later filed by detectives working on the case reported the alleged marijuana plants to number in the thousands.
After attempting to corroborate this information through aerial surveillance as well as surreptitious searches of parts of the property, and according to all accounts, failing to do so, The L.A. County Sheriffs Department assembled a multi-jurisdictional team to conduct a military style raid on the property. Deputies from the L.A.S. D. were joined by members of the D.E.A., the Park Service, the Forest Service, the California National Guard, the California Bureau of Narcotics Enforcement, and the U.S. Border Patrol.
On the morning of October 2, 1992 at approximately 8:30 am, the thirty members of the raiding party swarmed the Scott property. They were armed with high powered weapons, flak jackets, dogs, a battering ram, and a search warrant. After announcing themselves, they kicked in the door and rushed the occupants of the house. In response to his wife's screams, Donald Scott had grabbed his silver plated revolver. As he came around a corner in the house, and in full view of his wife, he was shot twice in the chest by Sheriffs deputies. He later died of his wounds. No marijuana, other drugs, or any paraphernalia was found in the house or on the property. No residual evidence of any manufacture or storage of drugs was found either. Interestingly enough though, the raiding party was in possession of an official appraisal of Scott's property, complete with the sales prices or adjoining lots and written instructions to seize the property if fourteen or more marijuana plants were found!
Following this murderous debacle, the Ventura County District Attorney's Office launched five month investigation. The report concluded that "the affidavit upon which the search warrant was based contains material misstatements.....the misstatements and the omissions make the warrant invalid."
The D.A.'s report goes further to speak to the motivations of the agencies involved. It states, "[Spencer, L.A.S.D.] knew that if marijuana were found growing....it was possible that a very valuable piece of real estate would be forfeited to the government, with the proceeds from the sale going to the Los Angeles Sheriffs Department....It is the District Attorney's opinion that the Los Angeles County Sheriffs Department was motivated.....by a desire to seize and forfeit the ranch for the government. Based, in part, upon the possibility of forfeiture, Spencer obtained a search warrant which was not supported by probable cause. This search warrant became Donald Scott's death warrant."
"Whilehard drugs such as heroin, cocaine and methamphetamine would, logically, seem to be a top priority for the Justice Department, through their own research, Janet Reno and her cohorts have found that these transactions often take place on low value property, making them less profitable from a forfeiture standpoint. Conversely, marijuana deals, statistically, take place on, and involve, property with a much greater value making them a higher priority in the new world order of law enforcement."
Among the residual effects of the last two decades of anti-drug hysteria , some of the more appalling are the revised drug forfeiture laws of 1984. That was the year Congress rewrote our civil forfeiture laws to return drug money and drug related assets to the police agencies that seize them. Thus, the agency's respective windfalls were limited only by the energy and cunning with which they pursue their quarry. And the number and rate of seizures exploded. Between 1985 and 1991 the justice department seized $1.5 billion in cash and assets, in the subsequent five years that number nearly doubled.
The financial benefits for law enforcement are essentially there for the taking, thanks to the expansive laws and a virtual green light from the Supreme Court. Forfeiture laws extend to any property that facilitated a drug crime and, therefore cover an enormous class of goods. Cars, homes, bars, boats, and restaurants have all been subject to forfeiture statutes.
Upon initial inspection this appears to be a novel and plausible approach to law enforcement. Very few government programs even come close to paying for themselves. It is, in fact, almost an oxymoron. So, it is not surprising that in an age of punishing tax burdens, crumbling Social Security and Medicare programs, and a vehement, if often misguided, anti-drug ethos, this type of proposition would be an easy sell to both the politicos and their constituents. Take stuff from the bad guys and give it the honest law abiding folk, right? Janet Reno as Robin Hood. Who can argue with that?
It is not, however, as simple as it appears. There are a number of inherent problems with this type of autonomy. The most broad and pertinent of which is that it is completely antithetical to our system of constitutional protections. Our founding fathers went to enormous effort to make certain that those who collect and disburse funds are not the same persons who receive and make final use of those funds or, as they put it more succinctly, "the purse and the sword ought never fall into the same hands, be it legislative or executive." The self financing of police agencies is wrong, constitutionally, both with respect to the separation of powers as well as the presentation of a clear conflict of interest.
Part b of this problem is that forfeiture cases are civil proceedings and do not necessarily correspond to criminal court standards. While they are tangential to a criminal case, in a forfeiture proceeding the property is considered the defendant (for example: State of Florida versus 1997 BMW 528i) and there is no presumption of innocence. Owners who want to contest seizures must put up a bond, hire a lawyer and rebut the presumption of guilt with proof that the property is unrelated to criminal activity. There is no constitutional requirement that the owner knew of any illegal activities, and forfeiture may occur even if the owner is charged and acquitted in a criminal court. Probable cause, on the part of the law enforcement personnel, is all that is needed for a seizure to occur and be legal.
While self financing of law enforcement is great for sound bites, as former Pennsylvania Governor and Attorney General Dick Thornburgh has proven, on more than one occasion, the practical reality is often very different from the theory. More often than not, logic is subordinated to seizure fever. As the appetite of the Justice Department, and local agencies, for forfeiture funds has escalated, the priority of keeping dangerous drugs from our streets has given way to the search for the Holy Grail of the huge seizure. While hard drugs such as heroin, cocaine and methamphetamine would, logically, seem to be a top priority for the Justice Department, through their own research, Janet Reno and her cohorts have found that these transactions often take place on low value property, making them less profitable from a forfeiture standpoint. Conversely, marijuana deals, statistically, take place on, and involve, property with a much greater value, making them a higher priority in the new world order of law enforcement.
At the Justice Department, memos encourage U.S. Attorneys to direct their efforts to forfeiture production so as to avoid budget overruns. Recently, Janet Reno advised all U.S. Attorneys to consult forfeiture specialists before settling cases. A study the Justice Department did on forfeiture task forces suggested, in no uncertain terms, that units select targets based on the funding (read: seizures) they are expected to produce.
What the net effect of all of this has been is a specious and badly skewed philosophy of law enforcement, a tendency of law enforcement to neglect other more serious crimes, in order to pursue those which are more profitable, and a whole culture of cops who have become experts at playing the seizure game. These range from the borderline unethical to the violently criminal.
In Huachuca City, AZ it was revealed that the city had hired an officer whose sole purpose was to increase revenue through forfeitures. His contract explicitly stated that he would remain in the payroll as long as there were enough funds available from asset seizures. In New York City, former Police Commissioner Patrick Murphy told Congress, there was a financial incentive to impose roadblocks on the southbound lanes of I-95 which carry the cash to make drug buys, rather than the northbound lanes, which carry the drugs. After all, "seized cash will end up forfeited to the police department, while seized drugs can only be destroyed." This, of course, leaves the drugs on the street to be distributed unchecked.
As Nietzsche wrote in Beyond Good and Evil, "whoever fights monsters should see to it that in the process he does not become a monster. And when you look long into an abyss, remember, the abyss also looks into you." --
In Los Angeles, a Sheriffs Deputy reported that officers often planted drugs and lied on reports to establish probable cause for cash seizures. In Louisiana, police illegally (on the basis of profiles) and routinely stopped and searched vast numbers of vehicles seizing large amounts of cash and assets. It was later learned that the proceeds from the seizures had been diverted to unauthorized uses including a police department ski trip.
It is worth noting here that many of the grievances toward our forfeiture statutes are virtually identical to those addressed to the King of England in the Declaration of Independence. The laws allowing customs officers to seize and retain contraband were prominent among the causes of the American Revolution. The Founding Fathers wrote that "Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes. " (i.e.-. a drug war?).
Additionally, an oft neglected section of the Fifth Amendment to the U.S. Constitution reads: "No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
What began as laudable and well intentioned exercise in civil order has devolved into a morass of ethical fringes, loopholes, and below board dealings that threaten our very cultural integrity. The drug war has taken on a life of it's own and is well on it's way to consuming many of the foundations on which this country was forged.
Not only have we compromised our constitutional underpinnings, we have, in a blind rage, become what we are fighting against. Our government has become the criminal element. They are, in some ways, even more pernicious than drug traffickers due to the fact that have taken a sworn oath to uphold and apply the principles of the constitution. As Nietzsche wrote in Beyond Good and Evil, "whoever fights monsters should see to it that in the process he does not become a monster. And when you look long into an abyss, remember, the abyss also looks into you." --
© Darryl Fruchter, Is a Staff Writer for 'a Dingo'
Date Posted: April 17, 1998