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Over the last several weeks, FreedomWorks has released two publications discussing in detail the problems with civil asset forfeiture. First, we released Civil Asset Forfeiture: Grading the States, which, as the title suggests, functions as a scorecard on states' civil asset forfeiture laws. More recently, we published From High Seas to Highway Robbery: How Civil Asset Forfeiture Became One of the Worst Forms of Government Overreach, which offers historical background on this concerning area of the law.
articularly concerning in state laws is the perverse profit motive that is often behind seizures of property supposedly connected to a crime. Thirty-nine states allow law enforcement to keep a large portion, or all, of the proceeds from forfeitures. Only 10 states have removed the profit motive by directing all proceeds to separate, non-law enforcement accounts. Justice is turned on its head in the 36 states where the burden of proof falls on the property owner, even if they are never charged with a crime. In most states, the government need only meet a very low standard of proof to subject property to forfeiture (21 require "a preponderance of the evidence" and 10 require only probable cause).
Federal forfeiture law is just a bad. The government needs to present "a preponderance of the evidence" to subject property to forfeiture and the burden of proof falls on the property owner, who does not need to be charged with a crime. In addition, federal agencies can keep 100 percent of the proceeds from forfeitures. State and local law enforcement working in joint operations with federal agencies can use federal forfeiture law to seize property and begin forfeiture proceedings. Through the Justice Department's Equitable Sharing program, state and local law enforcement can receive up to 80 percent of the proceeds from forfeitures.
Civil asset forfeiture is a pernicious threat to Americans' due process and property rights, but it has become a lucrative business for law enforcement. They are incentivized to self-fund with the proceeds received through civil asset forfeiture. While apologists of this practice would argue that it is a necessary tool to fight crime, there is example after example of innocent people who have been negatively affected by abuse of civil asset forfeiture.
One aspect of civil asset forfeiture that has received some coverage -- but not nearly enough -- is a private intelligence network, Black Asphalt, that allows law enforcement participants to share information on potential targets, including innocent people. In its lauded September 2014 series, "Stop and Seize," the Washington Post detailed the activities of Black Asphalt, which was created by Desert Snow, a company that, for $590, trains law enforcement on how to take people's stuff during traffic stops. Think of Black Asphalt as sort of a Facebook for law enforcement, except it is far more exclusive and secretive.
"Operating in collaboration with the U.S. Drug Enforcement Administration, Immigration and Customs Enforcement and other federal entities, Black Asphalt members exchanged tens of thousands of reports about American motorists, many of whom had not been charged with any crimes," the Post explained. "For years, it received no oversight by government, even though its reports contained law enforcement sensitive information about traffic stops and seizures, along with hunches and personal data about drivers, including Social Security numbers and identifying tattoos."
Desert Snow holds competitions for law enforcement to see which group can seize the most property. The award for the winner is inclusion in its "Royal Knight" program, which offers various goodies, including consideration to be an associate instructor. Certainly, some of the "qualified incidents" for consideration are wholly important, but those related to civil asset forfeiture raise eyebrows considering that, in most instances, the person whose property is seized does not have to be charged with a crime.
Desert Snow's training and the Black Asphalt network are effective. "Agencies with police known to be participating in the Black Asphalt intelligence network have seen a 32 percent jump in seizures beginning in 2005, three times the rate of other police departments," the Post noted. "Desert Snow-trained officers reported more than $427 million in cash seizures during highway stops in just one five-year period."
But Desert Snow's operations do not end at training law enforcement how to participate in this form of legal plunder. The company hired itself out to an Oklahoma district attorney to conduct interdiction stops for a 25 percent cut of the proceeds. Its efforts reeled in some $1 million over roughly a six-month period before a judge scrutinized the company for operating inside the state without the certification required by state law.
Judge David Stephens warned Desert Snow's owner, Joe David, not to participate in interdiction stops in Oklahoma without proper certification. "If you do," Stephens told David, "I hope to see you soon, wearing orange," in reference to the color of a prisoner's clothing. Though the stops yielded dozens of arrests, the involvement of Desert Snow employees, because they lacked proper certification, was grounds to dismiss charges on a technicality.
Desert Snow, which spent $30,000 on forfeiture-related congressional lobbying efforts in 2010, is coming under scrutiny, thanks, in part, to the Washington Post's reporting and a federal civil rights lawsuit holding the company partially liable for the seizure of $90,000 in cash from two professional poker players who were stopped by law enforcement in Iowa.
When it all comes down to it, though, Desert Snow is not the problem, but rather a symptom of it. And though law enforcement is often criticized for the wrongful seizures of property and cash, lawmakers expanded civil asset forfeiture laws in a way that breeds abuse. It is true, however, that law enforcement does not want lose this ability to self-fund, and they often fight against proposed reforms to protect innocent property owners.
Civil asset forfeiture laws are the problem, and it is up to federal and state lawmakers to address them in a way that protects law-abiding citizens. By all means, go after those who break the law, but arrest, convict, and sentence them before seizing assets connected to crimes. Otherwise, the Fifth Amendment's guarantee of due process means nothing.