Will the New War on Drugs Target Crime Bosses or the Poor?

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Seventy pounds of marijuana, pills & cash seized by Metro undercover detectives August 9 in Madison. Photo courtesy of MNPD

By Peter White

NASHVILLE, TN – Civil Asset Forfeiture is when the police take your stuff and you have to pay to get it back even though you did no wrong. It’s big business.

According to the Department of Justice, cops took $407 million from people they were sworn to protect and serve in 2001. By 2012, the seizures increased to $4.3 billion. Law enforcement agencies are addicted to taking people’s cash, cars, boats, houses, and business property. They know they should stop but can’t.

Police started taking things in 1984 to help fight the War on Drugs and soon every cop in the land was hooked. After 30 years, many police departments, including MNPD, still haven’t kicked the habit.

Attorney David Ridings cuts a deal in the case of the giant Teddy Bear. Photo by Peter White

Seized drug profits and expensive homes, airplanes, and boats have paid for the DEA’s anti-drug efforts for decades. And they share the cash with local police agencies. But really big drug busts are rare. In the vast majority of cases the seized assets do not belong to Pablo Escobar, El Chapo, or Joe “Pegleg” Morgan. (see photo)

In small towns, local governments rely on confiscated cash and property to pay for parks or water lines or garbage service. In bigger towns they pay for new jails, SWAT teams, and DARE programs. Sometimes, they pay for salaries (but not in TN), sports cars, wild parties, and week-long junkets in Hawaii. By the way, it’s all legal.

“Civil asset forfeiture is a key tool that helps law enforcement defund organized crime. It takes back ill gotten gains from them and prevents new crimes from being committed and weakens the criminals and their cartels,” Attorney General Jeff Sessions recently explained.

Sessions has returned to the Wild West days of the 1980s and wants to get tough on crime and restart the War on Drugs. He’s got President Trump’s approval. Last month Sessions announced stiff minimum sentences for drug convictions.

The President recently called the opioid crisis a national emergency. “It’s a serious problem the likes of which we have never had,” he said.  Trump says he is drafting a response to the opioid crisis that is killing 91 people every day. The President is expected to rely on a report by the drug commission headed by New Jersey Governor Chris Christie.

Meanwhile, Sessions is going hell bent for leather after drug dealers. They would be pharmaceutical companies like Purdue Pharma, Janssen Pharmaceuticals, and Allergen.

Prescription drugs killed many, if not most, of the 30,000 opioid drug users who overdosed in 2015. Doctors wrote the scripts that hooked patients with a single 30-day prescription. Women overdose almost twice as often as men. When it comes to drugs, Sessions is a man from the last century.

“Criminal enforcement is crucial to stopping the violent transnational cartels that smuggle drugs across our borders, and the thugs and gangs who bring this poison into our communities,” Sessions told the DEA summit on Heroin and Opioids in West Virginia on May 11, 2017.

Going after violent criminals who are international drug traffickers does not describe what’s happening now and Sessions ignores the behavior of law enforcement agents who are addicted to the power and money that comes their way from acting like Nazi storm-troopers.

“The War on Drugs has never produced a victor in the African-American community,” stated Representative Harold Love (D-Nashville).

Two dozen witnesses, some from law enforcement, state legislators, attorneys, civil rights advocates, and social workers testified to the U.S. Commission on Civil Rights July 24 at the Main Library.

Love said the War on Drugs has decimated black communities, allowed gangs to sell drugs with impunity in poor neighborhoods, and filled prisons with addicts and low-level drug dealers.

“I think we need to address the fact that everybody who’s driving around with cash in a car is not selling drugs. Everybody who is driving around in a particular neighborhood is not engaged in those activities,” he said.

See more testimony by Representatives Love, Hardaway, and Clemmons here: https://www.youtube.com/watch?v=bRZqO_8ELxA

Love cited a 2015 ACLU report that found African Americans make up 9 percent of Philadelphia’s residents but 53 percent of the population whose assets were seized. Groups like NAACP have long held that drug enforcement is higher in black and immigrant neighborhoods.

For a criminal charge to be filed there has to be probable cause. But cops can seize your car using the lesser standard of a “preponderance of evidence” and that means you will have two legal cases: one for yourself and one for your car. It turns out your car’s freedom will probably cost you more than your own.

Rep G.A. Hardaway testified that the risk of driving while black increases the risk of having your car or money being seized by police when they stop you.  Attorneys who represent claimants at Department of Safety administrative court hearings deal with the arcane policies and outsized costs associated with trying to recoup seized civil assets.

The main burden is proving your car or money was not part of a crime. Cops may not have probably cause to arrest you but they can arrest your car and impound it on the suspicion that it was involved in a crime you may or may not have committed.

This Orwellian state of affairs violates the presumption of innocence upon which the American justice system is based. It also sidesteps habeas corpus.

By law, you can’t hold a person in jail indefinitely without showing cause but you can impound someone’s car and hold it for months. If you’re poor and need your car to get to work, it amounts to the same thing.

“This is the slowest process in the entire criminal justice system, hands down,” says Attorney David Ridings. Ridings was a Metro cop for a decade and also worked for the Davidson County District Attorney before becoming a defense attorney.

Two weeks ago Ridings faced Dept. of Safety prosecutor Jennifer Crim in the case of the giant stuffed Teddy Bear. Riding’s client, who requested his name not be used, was carrying a five foot stuffed bear to his friend’s house in May to hide it until Mother’s Day. It was a gift for his wife.

Coincidently, Metro police were serving a warrant upon the friend at the same time. Assuming the giant bear was filled with drugs, the police ripped it to shreds.

The bear wasn’t holding. Police were so embarrassed they arrested everybody, including Ridings’ client and impounded both his cars. In order to do that, they had to get another search warrant to enter the man’s home, where they found cash but no drugs. They took the cash and charged Ridings’ client with felony drug possession. His bail was more than $100,000, higher than the bail set for his friend who actually had drugs in his possession.  The criminal case never went to trial.

The arrest was in May. Four months and several thousand dollars later, the forfeiture hearing took place two weeks ago and lasted about five minutes. Ridings was smiling when he emerged from the courtroom.

Ridings considered the result a win. The DA agreed to release both cars and half the money that the drug squad had seized from a man they had clearly arrested without probable cause.

“He agree to take half the money rather than fight for a year and a half to get it all back,” said Ridings. People rarely take their fight to Chancery Court to recoup all they have lost. It’s almost impossible to do that. In the Teddy Bear case, Ridings’ client did not get reimbursed for the stuffed bear and he was out thousands of dollars the drug task force gets to keep.

“Most people get weary and agree to settle because they drag it out so long,” says Ridings. Ridings said that if a case is not settled at the first appearance, it could be months before a second one can be held.

It costs $350 just to file a petition in the forfeiture court. You don’t get that money back even if you committed no crime, as in the Teddy Bear case. There were towing and storage fees on the two cars that amounted to $690. Riding’s fee was several thousand, he said.

Here’s the best advice Ridings can give: don’t buy a five-foot teddy bear for your wife if Metro’s drug task force is hanging around or it could cost you about ten grand.

 

Statistics and Hearsay Plague Hearing on Civil Asset Forfeitures

NASHVILLE, TN – One thing became clear in last month’s Civil Rights Hearing about civil asset forfeiture. How many seizures are happening depends upon where you live. But there is a lot of dispute about how many seizures arise from drug investigations and testimony about the average amount of cash or assets seized in Tennessee varied widely.

According to District Attorney General Stephen Crump (10th Judicial District), the average amount of civil forfeiture in Tennessee is about $10,000. Representative Martin Daniels (R-Knoxville) said the amount was closer to $2,200.  Both men cited Department of Safety figures. Hedy Weinberg, Executive Director, ACLU of Tennessee, suggested the number was probably closer to $500. And homeless advocate Samuel Lester said if you’re talking about people living on the street who have their backpacks and IDs taken by police, the amount is probably closer to $100 or less.

Changes in the forfeiture law in 2015 now require better record keeping but still don’t track demographic information, have a minimum seizure threshold, or require a criminal conviction before assets can be seized.

Tennessee law enforcement seized $19 million in cash in FY 15/16 and the Department of Safety got another $13 million from the federal drug task force sharing program last year. But where it actually came from and where it actually goes is not clear. There is no legislative oversight of asset forfeitures in Tennessee.

According to Carlos Lara, a Metro narcotics detective, between 2014 and 2016 only 2.7 percent of seizures were made in Nashville without a criminal arrest. That is 32 out of 1170 seizures. Lara also said 95 percent of seizures in Davidson County are done by detectives, five percent by regular police officers. He also said MNPD keeps detailed records about what happens to seized cash and property in Davidson County.

But Representative Martin Daniel (R-Chattanooga) told the panel that Department of Safety figures show 45% of seizures made in Tennessee in 2016 were made without any criminal charges being filed. The total number of property seizures in TN was 11,122 in FY15/16. Of those 5,858 were forfeited, and about half were returned to claimants who petitioned to get their stuff back.

Department of Safety kept all of the $19 million in cash seized last year. Sales of confiscated vehicles totaled $2.5 million for a grand total of $20,376,200. In 2016, 44 bank accounts were seized, 442 cell phones, 247 wallets, furs, and purses, 405 computers, 43 personal documents, 98 lawnmowers, 362 firearms, 3.054 cars, 1987 trucks, 139 motorcycles, and 181 jewels. A total of 7840 items were seized and 1635, or about 20 percent, were returned.

“I submit to you that the current state of Tennessee’s forfeiture laws provides a perverse incentive to maximize property for law enforcement agencies,” Daniel said.

Contradicting Daniel’s statement, District Attorney Mike Dunavant (25th Judicial District) said that in his rural district of five west Tennessee counties, the vast majority of asset forfeiture cases have criminal charges filed with them.

Lee McGrath, Senior Legislative Counsel for the Institute for Justice, says it’s time to delink asset forfeiture cases. Drug cases should be pursued vigorously as they are now, says McGrath. That’s about ten percent of the total but represent about 70 percent of the money seized by law enforcement. The other 90 percent of cases should be tried in criminal courts and asset forfeiture should be part of that process which has more protections for defendants. He says cases with less than $100,000 are 90 percent of all forfeiture cases and have just 30 percent of the money.

He suggested during his testimony that law enforcement should be fine with that. They aren’t. Neither is the Tennessee District Attorney’s General Conference. Speaking on behalf of all 31 judicial districts, Conference President Mike Dunavant said, “I agree with my colleague that a conviction-only standard would not be workable in the sense of providing true justice for people who are committing crimes for financial gain and reaping the benefits of that.”

There is that. However, police and prosecutors like the certainty of having seized assets in their possession before they try a drug case. It allows them to make deals and persuade low-level criminals to snitch on their bosses.

 

Local Attorney Calls Civil Asset Forfeiture a Huge Scam

NASHVILLE, TN — Frank Lannom is a rubber meets the road kind of guy. “If you want to know how to get your stuff back and the problems that are so unfair about this process, I’m the guy to talk to, okay?” he told the Commission on Civil Rights last month.

Here is an excerpt of his testimony:

“So they show up at your house and they’ve gone to the trouble of getting a search warrant. They’ve had to convince a judge somewhere that they had some reason to come into your home. That makes sense, right, to get a search warrant? But when they get to your home, they are allowed to take everything you own without a search warrant.

The last case I had when they took all of the electronics and all of the little Game Boys, you know, that the children play, the PS4s and things. They take all of those, they take all of the cars, they take all of the money, and they busted — is that a word? — the piggy bank and took $147 out of the piggy bank.

There were two children in the home – without a warrant. So they take all of your stuff. They take all of the cars. You have no car, you have no money, and they attached a seizure to the bank accounts that the individuals had. No rent money, no electric-bill money, no anything. That’s where the process starts.

But they do hand you a green piece of paper that says, “Here is why we’re taking your property.”· Check, “Narcotics.”· That’s it. You don’t get ‘You sold narcotics last week, you sold narcotics today, we think you’re moving heroin.’

You get a green piece of paper. That’s how I always know my clients have had their property taken, they have a green piece of paper in their hand and it has a box checked that says “Narcotics”. So they come to me and I tell them they have a right to petition to get their stuff back.“

But it is a tortured lengthy process and one that Lannom says is unfair from start to finish. For example, in a criminal case, there is a court clerk who is an impartial keeper of records.  In forfeiture cases, the prosecutor is the court clerk.

“They decide if my filing is on time. They also get to pass the rules that say how many $350s you have to pay. ‘We took three cars from your client, Mr. Lannom, and we took them on three different days, so you have to pay three times $350.’”

“Now, this isn’t a judge making this decision or a clerk of the court, this is my opponent who decides how much money I must pay to ask my clients to ask the government why they took my client’s money.”

“If we ask for a deposition and the judge says I get to take it, my opponent, the Department of Homeland Security, can appeal to the administrative — the appellate position of Homeland Security, their co-workers, and they can

stop the deposition from happening by rule. Guess who wrote the rule?·The Department of Homeland Security. My opponent writes the rules that stops

·the process that prevents me from taking the deposition.

But eventually I may get through that part of the process, and we got a statute that says we get a hearing within 30 days. Well, you don’t really get a hearing within 30 days, you get told when your hearing will be within 30 days, and it may be six months. So we go to the hearing and occasionally I put on the proof and this administrative judge says, “You’re correct, Mr. Lannom. your two clients, who are Jehovah’s Witnesses, who have never seen a drug in their life, whose son worked for them and got caught with drugs after nine months, should get their cars back.”

“Thank you, Judge.

My opponent in this case can then appeal. Would you – can anyone speculate who they appeal to? Anyone? Please guess. Her boss, the Commissioner of the Homeland Security. And he can override the administrative judge. She literally appeals to her superior. That is an unfair process for anyone to labor under. And what happens is the boss then can make a ruling of whether or not the administrative judge was correct or incorrect.”

Lannom says in forfeiture cases judicial independence is a legal fiction because the prosecutor’s boss writes the law that is binding on the one independent person involved in the process, the administrative law judge.

 

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