FBI Decides It's Finally Time To Do A Terrible Job Of Defending Civil Asset Forfeiture

from the G-men-say-it's-totally-legal-and-whatnot dept

Perhaps sensing the wave of civil asset forfeiture reform might eventually come crashing against the seized beach houses of the federal government, the FBI has decided to post a defense of the oft-abused process at its website.

The post speaks in warm terms about federal partnerships with state law enforcement agencies — partnerships often abused by local authorities to route around restrictive state laws governing forfeiture. Of course, there’s no mention of this particular facet of federal partnerships in the FBI’s post. Instead, the post does all it can to portray it as a legitimate tool of law enforcement, rather than the analogue for legalized theft it’s become.

The FBI tries to spin this as a limited-use tool that only affects convicted criminals. But even in its defense of the process, it can’t help but enthuse about the near lack of limitations it enjoys.

Many—though not all—federal crimes have forfeiture provisions, but just about every law the FBI is charged with enforcing has some forfeiture aspect—from organized crime activities, financial frauds, drug trafficking, and cyber crimes to public corruption, child pornography, human trafficking, and terrorism.

Not “Just For Drug Dealers™,” as so often seems to be the case. All sorts of criminal acts — even those committed with zero criminal intent — can result in people (or their parents, relatives, roommates, etc.) losing their property to the government. How many laws allow for forfeiture? The FBI doesn’t say, but it’s probably in the thousands. Here’s a recent federal criminal law count:

There are at least 5,000 federal criminal laws, with 10,000-300,000 regulations that can be enforced criminally.

“Many” is the word the FBI uses, so it’s not just the rogue’s gallery they trotted out in defense of the controversial process. It also can be owners of small restaurants or guitar manufacturers or whoever runs afoul of a few hundred thousand federal regulations.

But don’t worry, says the Feeb, we have to do stuff to take stuff.

In all Bureau cases, the burden of proof to demonstrate that the property in question is forfeitable under the applicable federal law rests with the government.

This looks like it means the government has to prove the seized property is directly derived from criminal activity. But that’s not what the sentence actually says. All the government has to prove is that the law provides for its forfeiture. Actually proving seized property is derived from criminal activity isn’t something the government has to do. It only has to do this if the seizure is challenged. If it isn’t, the normal boilerplate assertions about agents’ information and belief are usually enough to net the government some extra spending money or fine auctionables.

The real fun begins when the FBI talks about civil forfeiture — the process in which assets are treated as suspected criminals while the suspected criminals who own the property are sidelined by the legal process.

Civil forfeiture […] is brought against property rather than the actual wrongdoer—it’s not dependent on a criminal prosecution, it’s based on the strength of the evidence at hand, it’s available whether the owner of the property is living or dead, and it allows us to obtain the assets of fugitives who have escaped the arm of the law or subjects who reside outside our borders.

This is law enforcement’s favorite brand of forfeiture, as it eliminates tons of paperwork, arraignments, courtroom testimony, Fourth Amendment “technicalities” that spring suspected criminals, and dangerously unpredictable juries.

The most laughable part of this sentence is what the FBI claims civil forfeiture is used against — fugitives and foreigners. In “many” cases (to borrow the FBI’s vague term), the people assets are taken from are not only not fugitives or foreigners, they’re also left uncharged and unjailed while their belongings begin the streamlined process of becoming government assets.

The FBI freely admits it engages in another form of parallel construction to better ensure the government ends up with something in every forfeiture case.

In some instances, the FBI—in conjunction with U.S. Attorney’s Office—will run parallel criminal and civil forfeiture cases. There are several reasons for this. Parallel proceedings help us get the proceeds of a crime back to the victims more quickly. Also, if the case involves depreciating assets (like cars), we can civilly forfeit those assets faster than in the criminal proceeding, then liquidate the assets and get them back to the victim at a better return than if we had held the assets until the criminal case was completed. We also do parallel cases to ensure we can forfeit the assets civilly in case the defendant flees or dies before the forfeiture order is handed down.

Handy. If the government can’t get a conviction, it can still possibly take property from someone it couldn’t prove was an actual criminal. By running them in parallel, defendants are left with almost no time to fight for the return of their property after they’re exonerated.

And there’s another laughable statement hidden in this paragraph: the notion that asset forfeiture has anything to do with “returning” the proceeds of criminal activity to victims. The FBI says it has returned $100 million over the last two years to crime victims. Sounds impressive, but that’s only when presented without context, as the FBI does here. Scott Shackford of Reason provides some much-needed fiduciary bracketing:

In just 2014 the federal government deposited $5 billion in seized assets. That was just one year. So this $100 million in restitution over two years is a drop in the bucket compared to what they’ve taken. Most of the money is kept for themselves or shared with local law enforcement agencies.

The government’s do-gooding only looks like do-gooding when deprived of context. The FBI — and countless local law enforcement agencies now facing pushback from legislators and constituents — wants to have it both ways: the power of Nottingham’s sheriff but the public adoration of Robin Hood. It can’t have both. And it has chosen for years to give into every base urge that civil asset forfeiture’s perverted incentives have created. The public tide has turned against forfeiture, but the FBI — waist-deep in water — thinks it can keep everything under control by waving a badge and a “we’re the good guys” grin.

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Comments on “FBI Decides It's Finally Time To Do A Terrible Job Of Defending Civil Asset Forfeiture”

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Atkray (profile) says:

Re: Re: Deter

If that is his argument I’m inclined to agree with him but I think it should 100% go to the victims restitution programs. After all, it is from crime so let’s use it to help out the victims of crime. And by 100% I mean exactly that. Do not allow agencies to pull out a single penny in administrative or other costs.

Such a proposal would be much easier to get the public behind than true reform.

Once in place it effectively removes the major incentive the criminals have for making people forfeit their assets.

That One Guy (profile) says:

Re: Deter

Public defense office. Any and all proceeds from ‘asset forfeiture’ is deposited, in it’s entirety with the office of the public defenders, so the more the police steal the more funded the lawyers that defend those that cannot afford their own defense are.

Make that simple change and I guarantee that the rate at which they steal anything that isn’t nailed down would plummet overnight.

Oh, and a conviction requirement of the owner rather than the property of course, but that’s such a stupidly basic idea that I’m sure that doesn’t need to be added, because surely that’s already the case right? Right?

bilateralrope says:

Re: Deter

I agree completely. I’d agree completely even if the police weren’t abusing asset forfeiture. The police receiving any money from any source other than government funding creates a conflict of interest between reducing crime and funding the police department. Worse still, it delays/hides the effect of the government cutting the police budget. Making future budget cuts more likely, making the conflict of interest worse.

Imagine a police department setting a quota of parking tickets for each officer because that quota is the only way the department will get enough money to operate. Imagine a department deciding that parking tickets are more important than a serial killer that hasn’t made the news, because going after the serial killer isn’t profitable.

Confiscating assets and/or fines are useful punishments. But the police should never profit from them. Plus destroying the assets of a criminal might be a more effective punishment/deterrent than simply selling them.

Celeste Guarini says:

Re: Deter

Suuure. that’ll do NOTHING to address ANYTHING.

Think “tobacco settlements” where state AG’s got the lion’s share, and did NOTHING to stop big tobacco, or redress the dead who had no say in it.

But the crisis PR industry won big.

How about citizens start to remember that they have a duty to RISK their ow freedom to fight unjust laws, and government tyranny?

To stand beside the guy who has everything to lose because of the abuse of process/law/due process/rhetoric looks scary at first- but works out in the end for Democracy.

Anonymous Coward says:

The problem is, they have these laws for a reason but are abused because there are no consequences. DMCA, copyright, asset forfeiture, and many of the other techdirt articles on the subject. How could the legislature not see it wouldn’t be abused was either ignorant, stupid, or corrupt when putting them into law. The fact that they are not being fixed makes me lean towards corrupt. Asset forfeiture should stay just like the other laws, the did fix a problem to begin with but now they need to also fix another problem that they have caused. Make the consequences come out of the wallet and the problem will be fixed quickly.

Giuseppe Cerrato (profile) says:

Re: (subject was left blank)

Perhaps, “… did fix a problem to begin with …” is accurate, however, the original intent was not specifically written into the laws.

There were no constructive limits to its application (only limited by the creative writing abilities of the “arresting” officer doing the seizing).

Nothing was written into the statutes specifying any accounting-for of the property. This simple “oversight” has resulted in truly innocent folks having almost no recovery methods (other than lawyer & court battles at their own expense without ultimate recovery of those fees) to get their stuff returned!

I believe I read somewhere that some court ruling decided that the seizing agency cannot be forced to reveal where the property itself (or deed or title) is actually located so that the rightful owner may recover it. I believe anybody interested in this “legal” point can find something poignant using Google Search. If anybody is really interested in finding a solution to this abuse, that is!

Anonymous Coward says:

Not parallel construction

Parallel construction (more accurately “evidence laundering”) is systematic perjury for the purpose of using truthful incriminating evidence without revealing its (usually illegal, and always at least very questionable) true origin by presenting a fake origin that, if true, would be clearly lawful and beyond reproach. The parallel proceedings described by the FBI, while unnecessarily hostile to the defendant’s interests, can be undertaken without lying to the court. Nothing in the Techdirt reporting indicates that these parallel proceedings involve perjury.

Giuseppe Cerrato (profile) says:

Re: Not parallel construction

I am unclear as to the premise of your comment. To me it is incomplete &/or unsupported.

In any case, I urge any & all to Google the following phrases (although they are similar, each returns different Search Results):
– U.S. Civil Asset Forfeiture abuse
– U.S. Civil Asset Forfeiture abuse cases
– state-by-state Civil Asset Forfeiture laws
– Civil Asset Forfeiture reforms
– Civil Asset Forfeiture reforms needed
– Civil Asset Forfeiture reforms urgently needed

Why do I believe we all need to look-into this issue? Consider the following scenario.
Anyone could be pulled-over for a malfunctioning tail/stop or license-plate lamp.
Previously your significant-other broke a bag of sugar/flour/plant-food while unloading the groceries, leaving a “white powder residue” visible to the officer conducting the traffic stop.
Your vehicle is seized for evidence of a suspected drug in plain-sight.
Of course, it will be analyzed by the authorities, later.
But if the seizure is concurrently processed as a Civil Forfeiture,
based only on the possibility (the officer’s perception) that it is contraband,
by the time the forensic analysis is returned,
your property could be well beyond your reach!

Anonymous Coward says:

Re: Re: Not parallel construction

The Techdirt article referred to the practice of concurrent forfeiture proceedings as parallel construction. It is not parallel construction. Both parallel construction and civil forfeiture lead to abusive practices that are deeply unfair and easily questionable as to their constitutionality, but they achieve those abuses in very different ways. As described above, parallel construction is understood to refer to evidence laundering to hide authorities’ unlawful evidence gathering (and sometimes to include lawful gathering under techniques they would rather nobody know about – which still violates the right to face ones’ accuser). The abuses documented here are based on authorities carefully following a very deliberately unfair law (civil forfeiture). Unlike in actual parallel construction, here they technically follow the law at every step. That both result in perverse incentives and ruin peoples’ lives does not make them the same type of abuse. Both are travesties of justice, but they are distinct types of travesty.

Personanongrata says:

Larceny Under Color of the Law is Still Theft

FBI Decides It’s Finally Time To Do A Terrible Job Of Defending Civil Asset Forfeiture

Civil asset forfeiture is stealing. It does not matter if the thief is wearing a mask or a state issued costume.

The highlighted paragraph below was excerpted from a report titled –Police Civil Asset Forfeitures Exceed The Value Of All Burglaries In 2014_ found at the website ZeroHedge.com:

Now, according to the FBI, the total amount of goods stolen by criminals in 2014 burglary offenses suffered an estimated $3.9 billion in property losses. This means that the police are now taking more assets than the criminals.


These thieving fraction of American turd stains are a complete disgrace.

Giuseppe Cerrato (profile) says:

Re: Ninja comment on 23 Jan '17 @ 1107hrs

I do agree with your statement, however …
You understate the prevalence & severity of these abuses!
Your words “… is screwing mostly innocent people …” should be (IMHO) “is screwing ANY innocent people, leaving them without ANY recourse, …”.

Were these laws unwisely written & blindly passed in the publicity rush to facilitate “The War on Drugs”?
Or (tinfoil-hat alert) were these laws covertly attacking our U.S. Constitution, covertly eroding our civil rights, & covertly raising revenue without raising taxes?
Perhaps no more so the the more recent Patriot Act supporting “The War on Terrorism”. (We are winning these battles, real soon now, right? This year, right?)

IMHO, one more example of Legislative stupidity, “gotta do something” rather than really studying the issue & developing a sustainable solution. SSDD in all legislative bodies at all levels since the 70’s, IMHO. Law makers at one time wrote bills themselves (with their staff & legal advisor) and read all they voted on, for-or-against.
Today’s lawmakers get the bills they sponsor or propose written for them by Lobbyists!

orbitalinsertion (profile) says:

it’s not dependent on a criminal prosecution, it’s based on the strength of the evidence at hand,

"Is this $7,000 in cash?"

"Yes, I swear and affirm on information and belief, and having previously counted the currency in question, that it is $7,000."

"Guilty. Next?"

Parallel proceedings help us get the proceeds of a crime back to the victims more quickly.

Apparently, victims are all LEOs? I suppose they already have that mentality. OK, makes sense.

Anonymous Coward says:

[Deadly Risky But Simple] Answer is Resist

"Civil forfeiture […] is brought against property…"

From the people who brought the notions "money is speech" and "corporations are persons," the idea of "charges against inanimate property" is merely another unsane violation of Our Most Fundamental Constitutional Principles.

As with all other forms of robbery, the correct response is to shoot the would-be robbers.

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