United States v $10,500

Lexington: A truck in the dock

How the police can seize your stuff when you have not been proven guilty of anything

From The Economist print edition. May 27th 2010



HE ARRIVED in Houston with $500 in his pocket. A man he met on the Greyhound bus gave him a room until he found his feet. Zaher El-Ali, a Jordanian immigrant, worked hard and built up a small business renovating and selling cars and houses. He is now a proud American citizen. But, ridiculous though it sounds, his truck is in trouble with the law.

Six years ago, he sold a Chevy Silverado to a man who agreed to pay for it in instalments. Before the truck was paid off, the buyer was arrested for drunken driving. It was his third such arrest, so he was sent to prison and the police seized the truck. Mr Ali applied to get it back. He pointed out that he still held title to the vehicle, and that since the buyer had stopped making payments on it, he was entitled to reclaim it. But the government refused.

In most states the police can seize property they suspect has been used to commit a crime. Under тАЬcivil asset forfeitureтАЭ laws, they typically do not have to prove тАЬbeyond a reasonable doubtтАЭ that a crime was committed, or even charge anyone with an offence. What is more, the money raised by auctioning seized houses, boats and cars is often used to boost the budgets of the police department that did the seizing. That can mean fancier patrol cars, badass hardware or simply keeping the budget plump in lean times. In one survey 40% of police executives agreed that funds from civil-asset forfeiture were тАЬnecessary as a budget supplementтАЭ. This conflict of interest has predictable consequences. It spurs the police to pay more attention to cases that are likely to involve seizable assets (such as drug busts) and less attention to other ones. A report from the Institute for Justice, a pressure group, calls it тАЬPolicing for ProfitтАЭ.

An owner can usually challenge a seizure by arguing that he did not know his property was being used for criminal purposes. But in 38 out of 50 states, the burden of proof is on him to prove his innocence. In February Texas demanded to know from Mr Ali whether he had asked the buyer about his previous arrests for drunk drivingтАФas if that were a car dealerтАЩs responsibility. It also demanded a sheaf of irrelevant documents, such as Mr AliтАЩs bank and tax records for the past two years. Mr AliтАЩs lawyer, Scott Bullock, argues that this is тАЬclearly designed to intimidateтАЭ Mr Ali into giving up. Instead, he is suing to have the Texas civil asset forfeiture law struck down.

Civil and criminal asset forfeiture laws are often confused. Criminal forfeiture involves proven criminals. A convicted bank robber may lose his getaway car; a money-launderer may lose the house he bought with his illicit profits. Civil forfeiture is different. No conviction is necessary. If the government suspects that property has been used in the commission of a crime, it files an action against the property itself. This leads to odd case names, such as State of Texas v One 2004 Chevrolet Silverado (Mr AliтАЩs case) and United States v $10,500.

Even in states where local rules make civil asset forfeiture hard, police can get around that problem by calling in the feds. After a joint operation by state and federal authorities, the proceeds are split. This is called тАЬequitable sharingтАЭ. Police respond to these incentives exactly as you would expect them to. Where state law makes it tricky for them to seize property and hang on to it, they seize significantly more via тАЬequitable sharingтАЭ, according to Marian Williams and Jeff Holcomb of Appalachian State University and Tomislav Kovandzic of the University of Texas, Dallas. Total federal seizures have exploded from $400m in 2001 to $1.3 billion in 2008. State data are patchier, but the trend appears to be sharply upward.

Police and prosecutors deny that the system is widely abused. Scott Burns of the National District Attorneys Association says that elected sheriffs would be punished at the polls if they went around seizing property without good cause. But the safeguards are slender. For instance, police can find a wad of cash in a car, claim that the owner was planning to buy drugs with it, and then seize it. The evidence may be simply that a dog smelled drugs; yet one test found that a third of banknotes have traces of cocaine on them. The poor are disproportionately at risk, since people without credit cards are more likely to carry cash. And since the sum seized is often less than the legal costs of trying to get it back, many people never try.

By and large, the police do a dangerous job honourably. But they are human, so giving them a financial incentive to seize peopleтАЩs property is dotty. Why should the money not be put in the general pot of public funds? And seizing a citizenтАЩs assets without proving him guilty of anything is nakedly unjust.
To protect and serve

Relations between police and civilians in high-crime areas are already touchy. When they fear being shot at, officers tend to burst into suspectsтАЩ homes with overwhelming force: there has been a 1,500% increase in paramilitary police raids between the early 1980s and the beginning of this decade, reckons Peter Kraska of Eastern Kentucky University.

Bystanders are often handcuffed at gunpoint, as happened to one of LexingtonтАЩs blameless friends a few weeks ago in Washington, DC. Innocents are occasionally killed, as happened to a seven-year-old girl in Detroit on May 16th. Paramilitary police raids make sense if a suspect is known to be armed and dangerous, but are often used simply to execute search warrants for drugs. Public confidence in the police is higher in America than in many other countries, but among the groups who come into most frequent contact with them, such as black Americans, it is low. If the police want more co-operation from the civilians they serve, they need to keep their guns holstered more of the time, and their hands out of other peopleтАЩs pockets. http://www.economist.com/world/united-s ... d=16219747

[Bob]

A lot of this article is based on the author's total ignorance of the auto liability laws and how car sales are financed.

Given that the owner (whoever is on title) is generally as liable as the driver, anybody with half a brain (and especially car dealers) do not retain their name on title while some prospective buyer is making payments. Title is transferred (which is legally required for plates and insurance anyway!) and the person or outfit who/which is financing the deal takes a lien on the vehicle to secure payment. Every vehicle title in the US has a spot on it for the name of the lienholder to be listed (and anybody that's financed a vehicle here should know that).

All of Mr. Zaher's current unpleasantness is because he kept his name on title. That was not only sloppy and dangerous (if the driver of that vehicle injured or killed somebody while driving negligently or recklessly, Mr. Zaher would have been just as liable for all damages) but likely illegal under the applicable state's law. Mr. Zaher may be a nice guy and a hard worker but he also is just plain dumb in this particular case.

[Beachlover]

Pays to know the law...

Wendy Kaminer: When the Feds Decide Who's Sexually Dangerous

The Atlantic, May 20 2010

In what will likely be one of her last victories as solicitor general, Elena Kagan persuaded the Supreme Court to embrace an expansive vision of federal power that should agitate right-wing advocates of freedom and small central government, but probably won't, because U.S v Comstock, involved the power to detain people deemed "sexually dangerous" under the popular Adam Walsh Child Protection and Safety Act. (It passed the House and Senate by voice vote in 2006 and was quickly signed into law by President Bush.)

Best known for establishing a national sex offender registry (of highly questionable fairness and effectiveness) and promulgating standards for state registries, the Adam Walsh Act also provided for the indefinite "civil commitment" of federal prisoners who have completed their sentences but are considered likely to commit sex offenses if released. People who trust the federal bureaucracy and believe officials will use this power accurately, fairly, and in good faith may feel protected by it; others should worry about a government authorized to detain its citizens indefinitely, without jury trials, based on speculations about their future dangerousness.

Who qualifies as "sexually dangerous" under this statute? By what process are people indefinitely committed? Virtually any federal prisoner, including ones who have not been imprisoned for sex offenses, may be targeted for civil commitment. (Since convictions "for violent and non-violent sex offenses constitute less than 2 percent of all federal convictions," the National Association of Criminal Defense Attorneys stresses the statute provides for "potential commitment of a significant number of persons with no criminal history of sexual misconduct" and even persons with no prior convictions for any crimes, like material witnesses being detained by the attorney general.) Once targeted, people are entitled to a hearing before a federal judge (or magistrate), but their alleged future dangerousness need not be proved beyond a reasonable doubt. And, while the judge must find that the prisoner "has engaged or attempted to engage in sexually violent conduct or child molestation," that finding (as Justice Thomas noted in dissent) "can be established by ... clear and convincing evidence that the person committed a sex crime for which he was never charged." In other words, the government is empowered to imprison (or "civilly" commit) people indefinitely without bothering to try them in criminal court or in any other proceeding in which they are afforded the rights of a defendant in a criminal case, even if they have never been convicted of any sex crimes.

The wide applicability of this statute and lack of procedural safeguards distinguish it from state civil commitment laws previously upheld by the Supreme Court (this argument is presented in convincing detail in the NACDL amicus brief). In 1997, in Kansas v. Hendricks, the court upheld a controversial Kansas statute providing for the civil commitment of people deemed likely to commit "predatory acts of sexual violence" due to "mental abnormalities" or "personality disorders." But at least the Kansas law applied only to people previously convicted or charged with specified sex offenses and provided for jury trials in which alleged future dangerousness would have to be proved beyond a reasonable doubt.

Hendricks upheld the Kansas civil commitment scheme by a five-to-four vote, in a conventional liberal-conservative split. Justice Thomas wrote the majority opinion upholding the law, joined by Justices Rehnquist, Scalia, O'Connor, and Kennedy; Justice Breyer wrote the dissent, joined by Justices Ginsberg, Souter, and Stevens. In Comstock, however, the majority and dissent switched sides. Justice Breyer wrote for the majority, upholding a federal civil commitment statute that's less protective of individual rights than the state statute he would have struck down (he was joined by Ginsberg, Stevens, and Sotomayor; Kennedy, Roberts, and Alito concurred). Justice Thomas wrote the dissent, joined by Scalia.

What accounts for this switch? In Comstock, the court didn't address due process challenges to the federal civil commitment scheme; it was reviewing a decision by the Fourth Circuit Court of Appeals that struck down the federal statute as an unconstitutional exercise of congressional power, without reaching questions about due process (or other individual rights). So, putting individual rights issues aside, Justice Breyer adopted the expansive view of federal authority advocated by Solicitor General Kagan. (At the Volokh Conspiracy, Orin Kerr described Kagan's position as "shockingly broad: She argued that the Constitution gives the federal government the general power 'to run a responsible criminal justice system,' and that anything Congress plausibly thought a part of running a 'responsible criminal justice system' was within the scope of federal power.") Justices Thomas and Scalia, in keeping with a more literal, or originalist, reading of Article I congressional authority, and a view of the federal government as one of explicitly enumerated powers, would have denied the federal government civil commitment powers similar to those they afforded the states.

So there is some logic to these oddly contrasting positions represented by Justices Breyer and Thomas in their reviews of state and federal civil commitment statutes, respectively. Technical, constitutional arguments aside, however, I do wonder how Justices Thomas and Scalia would explain, in lay terms, why they oppose federal power to detain people deemed "sexually dangerous" in civil commitment proceedings but support federal power to criminalize mere possession or even false advertising of child porn, imposing long sentences on people who have never committed or even been suspected of committing any actual sexual offenses.

In any case, the court may get another chance to review the federal civil commitment provisions of the Adam Walsh Act. The Comstock case will return to the Fourth Circuit, where, as Justice Breyer observed, Graydon Earl Comstock (et al) may raise due process, equal protection claims or any other individual rights claims on which the court has not yet ruled. But even if the case eventually wends its way back to the Supreme Court, and even if Justice Breyer switches sides again and somehow takes four of his colleagues with him, much damage has been done. Federal criminal jurisdiction has expanded dramatically in the last few decades, with the blessings of conservatives and liberals alike. Now, thanks to the ruling in U.S. v Comstock, that power seems practically infinite: federal authorities can imprison people indefinitely on suspicions of future dangerousness. It's not just suspected sex offenders or terrorists who are at risk. http://www.theatlantic.com/national/arc ... ous/57005/

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