DOJ Forfeiture Directive Gives Local Law Enforcement A Chance To Dodge State Reform Efforts

from the Sessions-taking-it-back-to-the-old-school-cause-he's-an-old-fool dept

As threatened during comments to an association of district attorneys, Attorney General Jeff Sessions is bringing back asset forfeiture. Specifically, Sessions is loosening the restrictions placed on federal adoption of local seizures by Eric Holder during the last years of the Obama presidency. Holder's directive prevented local agencies from routing cash or vehicle seizures through the feds to dodge local rules. That's all over now. An order [PDF] and directive [PDF] issued by the DOJ are welcoming local law enforcement agencies to once again skirt restrictive state forfeiture laws by asking the DOJ to "adopt" their seizures.

On July 19, 2017, the Attorney General issued an Order allowing Department of Justice components and agencies to forfeit assets seized by state or local law enforcement (referred to in the order as "federal adoptions"). Under the Attorney General's Order, federal adoption of all types of assets seized lawfully by state or local law enforcement under their respective state laws is authorized whenever the conduct giving rise to the seizure violates federal law.

"Conduct giving rise to the seizure" almost makes it sound as though the federal government is limiting this to criminal asset forfeiture, which comes as the result of a conviction. Nothing could be further from the truth. In practical terms, this allows cops to say they smell the odor of drugs (or ask their dog's opinion) before hauling away an uncharged citizen's personal effects -- mainly cash, since it's easy to carry and difficult to prove its legal origin.

Multiple states have passed legislation curbing civil asset forfeiture. Fourteen states now require convictions before assets can be forfeited. This will no longer be the case. The DOJ is giving local agencies a way to avoid these restrictions by stating anything considered a federal crime (like drug trafficking) can be used as an escape hatch to ensure these agencies keep at least part of the property they've taken.

Sessions is promising this won't be abused. Given Sessions' comments on civil forfeiture, it's hard to imagine a case where he'd consider a seizure abusive, but there is a limited safeguard built into the new directive.

Adoptions of cash in amounts equal to or less than $10,000 may require additional safeguards. Those adoptions will be permissible where the seizure was conducted: (1) pursuant to a state warrant, (2) incident to arrest for an offense relevant to the forfeiture, (3) at the same time as a seizure of contraband relevant to the forfeiture, or (4) where the owner or person from whom the property is seized makes admissions regarding the criminally derived nature of the property. If a federal agency seeks to adopt cash equal to or less than $10,000 and none of these safeguards is present, then the agency may proceed with the adoption only if the U.S. Attorney's Office first concurs.

I wouldn't read too much into this provision. For starters, it includes the word "may" in the first sentence, which means the DOJ will be able to waive these restrictions whenever it feels like it. Seizures can still be effected "incident to an arrest," which further undermines the conviction requirements put in place by fourteen states.

Forfeitures under $10,000 need more protection, not another outlet for abuse disguised as a "safeguard." Most cash seizures are under $10,000. Forfeiture reform laws tend to target those, as they're most often abused. AG Sessions is leaving it up to US Attorneys' offices to make the final determination.

Those over $10,000 tend not to be as much of a problem, but now there won't be any close cases. Federal adoption is pretty much guaranteed, which will encourage law enforcement to spend more time looking for expensive seizables than real criminal activity.

Then there's this statement, made by Sessions in his announcement of the resumption of federal indifference to individual property rights.

Our law enforcement officers do an incredible job. In fact, over the last decade, four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court.

This goes past simple disingenuousness into the land of deliberate obtuseness. The absence of challenges is not the evidence of minimal forfeiture abuse. Fighting forfeiture is expensive and time-consuming. In most cases, it's futile. This is why so many seizures are $1,000 or less. The lower the dollar amount, the less likely it is someone will fight to get it back. As was pointed out by John Jackson on Twitter, this is like saying all fatal shootings by police officers are justified because not a single victim has filed a sustained complaint.

Sessions' forfeiture move isn't exactly being greeted with applause by members of the president's party. Sen. Mike Lee and Rep. Darrell Issa have already made statements condemning the loosening of federal restrictions. These reactions hew closer to the Republican party line -- small government, less regulation. For some reason, though, many conservatives seem to think expansions of government power and regulation is just fine when it comes to law enforcement or national security. This is the only reason the president's AG pick isn't facing more criticism for overriding states' reform efforts.


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  • icon
    aerinai (profile), 24 Jul 2017 @ 8:43am

    Additional Rules at The State Level

    Can't the States pass a new law that buries these guys in paperwork so that trying to skirt the federal process is so cumbersome that no one would want to do it?

    Also, couldn't the States also pass a law that says any federal asset forfeiture split returning to local PDs will instead go into that State's general fund when there was not a conviction?

    Both of those things I would think put the kibosh on an end-run around local control... but again, that is a perfect world. I can imagine the royal bitch fit Police Lobbyists will throw if either of those rules were tried to be put in place.

    Wishful thinking on my behalf I guess....

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Jul 2017 @ 9:33am

    How close...

    How close are they to saying "Suspect had his debit card or credit on him and had access to the funds via that, so they are eligible to seize as well." Isn't access considered the same as actually having it on you now?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Jul 2017 @ 9:44am

    Fighting forfeiture is expensive and time-consuming.

    And likely increases the risk of having more assets seized, as the easiest way to stop a person revering their assets is to make sure that they cannot pay the lawyers.

    reply to this | link to this | view in chronology ]

    • identicon
      tin-foil-hat, 25 Jul 2017 @ 7:53am

      Response to: Anonymous Coward on Jul 24th, 2017 @ 9:44am

      I think the supreme court ruled on a case prohibiting forfeiture of funds and preventing someone getting legal representation.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Jul 2017 @ 9:45am

    I love it!

    It's nice to see the Reps and Dems flip sides between State/Local vs Federal when those in power change seats.

    I hope every "undocumented" turd is deported and I hope that every "republican" has their shit stolen at badge and gun point.

    "Sessions' forfeiture move isn't exactly being greeted with applause by members of the president's party. Sen. Mike Lee and Rep. Darrell Issa have already made statements condemning the loosening of federal restrictions."

    Mouth blabber, they can introduce legislation that puts Shit-head Sessions in his place, will they? NO they can take this opportunity to score brownie points with their ignorant voters.

    "These reactions hew closer to the Republican party line -- small government, less regulation."

    And that all it is... a line.

    "Sessions is promising this won't be abused."

    We should ask if sessions is willing to swear this under risk of perjury? Well, it's not like the liar in chief would do anything to one of his own right? Sorta like the last liar in chief?

    reply to this | link to this | view in chronology ]

  • identicon
    Hoodless of Robin, 24 Jul 2017 @ 10:44am

    Time to start performing citizen's arrests on the feds involved..

    After all, it's highway robbery under the Sheriff of Nottingham. Let's start with the USAG.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Jul 2017 @ 10:49am

    "Sessions is promising this won't be abused."

    That it would ever be used in even the best of circumstances is an abuse of the 4th amendment.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Jul 2017 @ 12:01pm

    Can't wait for Sessions to forfeit all his ill gotten gains from his treason.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Jul 2017 @ 12:47pm

    What is the point of having laws when the SOB can create directives that undercut them? You are a f'n criminal Sessions. Didnt the Dept of Injustice also backoff on reforms for police depts? Jeff Sessions - you are a scumbag POS!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Jul 2017 @ 1:01pm

    "Fourteen states now require convictions before assets can be forfeited. This will no longer be the case. The DOJ is giving local agencies a way to avoid these restrictions"


    GOP is all for states rights, unless they are not.

    reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 24 Jul 2017 @ 1:04pm

    Reasonability

    The fourth amendment protects against unreasonable seizures (among other things).

    Part of the problem we're having is that different parts of the constitution, despite being written by the same people at the same time, are given differing levels of what the courts call 'scrutiny'.

    This is how gun ownership can be restricted in ways that, if even a tenth of the restrictions applied to guns were instead applied to speech, religion or expression, those restrictions would be unconstitutional -- even though the first and second amendments were written at the same time by the same people.

    It would not be reasonable under the scrutiny level applied to the rights to speedy trial, trial by jury, right to representation, right to confront accuser or equal protection of law for someone to be sentenced to prison or other punishment without having a trial or even a lawyer. Yet because the fourth amendment is given a lower level of scrutiny, the courts rule that seizure of personal property without proving a crime has been committed is perfectly legal.

    What we really need is a constitutional amendment requiring the courts to use the same level of scrutiny -- hopefully 'strict scrutiny' -- on all protected rights.

    Unfortunately, that's not likely to happen. And our rights will continue to be whittled away a tiny sliver at a time by a reasonability standard that excuses more things every year, because they're only slightly less reasonable than what is already allowed.

    Our Founders would already be shooting at government agents. Many of them would have been shooting 75-80 years ago.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Jul 2017 @ 1:36pm

      Re: Reasonability

      "Part of the problem we're having is that different parts of the constitution, despite being written by the same people at the same time, are given differing levels of what the courts call 'scrutiny'."

      No, I would say they are all given the same level of scrutiny. The ass wipe level of scrutiny. Every portion of the Constitution has been so shat upon, that it no longer matters which on is the most abused.

      "This is how gun ownership can be restricted in ways that, if even a tenth of the restrictions applied to guns were instead applied to speech, religion or expression, those restrictions would be unconstitutional -- even though the first and second amendments were written at the same time by the same people."

      It's called karmic justice. The right to keep and bear arms shall not be infringed. If you agree with any of the gun control laws right now then you deserve to have your belonging stolen by law enforcement. Your logic stole other peoples rights, therefore their logic justifies the taking of your rights.

      "What we really need is a constitutional amendment requiring the courts to use the same level of scrutiny -- hopefully 'strict scrutiny' -- on all protected rights."

      Nope, not necessary in the least and will not solve the problem, they will just ignore that rule like the rest of the rules. It never ceases to amaze me that people are proposing more rules in an effort to fix people not reading the rules and following them to begin with. Cart before the horse, catch-22, paradox, non-sequitur, pure lunacy! They are not following the current rules, therefore it stands to reason that any new rules will be equally regarded.

      "Unfortunately, that's not likely to happen. And our rights will continue to be whittled away a tiny sliver at a time by a reasonability standard that excuses more things every year, because they're only slightly less reasonable than what is already allowed."

      Because, like you, people ignore what "reasonable" means per the constitution. The constitution clearly states that the ONLY reasonable way to search or seize people or their belongings is via Warrant. This means that police are "technically" not allowed to even arrest you without one. This is another artifact of the way that the Constitution was written according to how it was applied. You see, it did not apply to the states in the beginning when it was formed. It ONLY applied to the Central/Federal government. The States could still take your shit, stop you from voting, and murder you dead, or keep you away from your guns. It was applied later, but how the Constitution could really apply to the states is still not clear. It is said that the 14th Amendment creates this requirement but it has been very loosely translated and misapplied all over the fucking place making it confusing at hell.

      "Our Founders would already be shooting at government agents. Many of them would have been shooting 75-80 years ago."

      Yes, they definitely would have been killed by the Government by now, but sadly most people would not vote for these guys according to "todays wisdom".

      We the people have decided that we need nanny government to take care of us and to tell us what to do, when to do it, and where to do it.

      By the way, we need your children 8 hours a day 5 days a week to indoctrinate them. And there is no excuse for ignorance of the law, despite the fact that government will break the law tyrannically!

      reply to this | link to this | view in chronology ]

      • identicon
        Thomas Jefferson Reborn, 24 Jul 2017 @ 2:40pm

        Re: Re: Reasonability

        There's a fix for this.
        Apply the treason laws as they should be.
        Violate the Constitution - Treason, minimum penalty = maximum penalty. Hang the fuckers.

        I don't care who it is, up to and including members of Congress, SCoTUS and PoTUS down to the janitors at the CIA/NSA/FBI/TSA/etc...

        reply to this | link to this | view in chronology ]

          • identicon
            T.J.R., 24 Jul 2017 @ 9:45pm

            Re: Re: Re: Re: Reasonability

            lol, that's pretty funny, but sure as hell doesn't apply to this conversation.

            Definition of "Treason" that applies. Pulled from google "definition of treason"

            trea·son
            ˈtrēzən/
            noun
            The action of betraying someone or something.
            plural noun: treasons
            synonyms: treachery, disloyalty, betrayal, faithlessness

            The government, in it's current incarnation is doing exactly that. They have broken the faith with the American people. They have betrayed us by violating the bill of rights. They have acted with great treachery and faithlessness by going around the constitution, going around the bill of rights, writing illegal and unconstitutional laws that they then pretend make their actions somehow legal.

            Maybe Jefferson had it right, and the government needs to be torn apart every so often and remade so as to prevent the types of power grabs, greed, distortion of the laws and rules the Governing are to follow to protect the governed.

            The best peaceful way to do that is to vote out every incumbent of every office and repeat that for at least the next 20 years. Corporations will go broke trying to buy the politicians every 2 to 6 years.

            There won't be enough jobs from the corporations to sustain the revolving door of the voted offices.

            Hold our representatives accountable to the voters, not the spenders by doing detailed auditing of each person going into office and coming out of office as well as their closest friends and family, every year for 20 years after leaving office. Any impropriety uncovered and said person take a lovely tropical vacation down at Gitmo.

            Repeal their special benefits - make them only have Social Security and Medicaire for their retirements.
            No more pension for life, no more free healthcare for life. Hell, in this age, take away the free postage.

            If they vote against the wishes of the people they represent, kick them out of office to be replaced by someone who will. If the term has a long way to go, then a recall vote to oust them or whatever legal form of removing them from office that is available. Make sure its completely publicized, so that they are shown to be the pariahs they've become. Expose the money given to said person(s), perhaps even find a way to fine them for exorbitant amounts based on the value of what was paid / given / gifted / granted (like free rent on a vacation house) or whatever.

            End the rule of money.

            Rich people have become America's Royalty.

            They think that with enough money behind them, they can pretty much do what they want.

            It's time to disabuse them of this thinking.

            reply to this | link to this | view in chronology ]

            • identicon
              Wendy Cockcroft, 25 Jul 2017 @ 5:06am

              Re: Re: Re: Re: Re: Reasonability

              While I agree with you in principle, in practice I'm afraid you're wrong. First of all, per the letter of the law Trump and his team have not committed treason: http://www.npr.org/2017/07/12/536729440/could-donald-trump-jr-be-charged-with-treason-short-answer-n o

              Secondly, you've got a long way to go to overcome the partisan stupidity in which people would vote for a cabbage if it had Dem or GOP on it (sometimes they actually do!) because they hate the other party more.

              I'm completely on board with your peaceful proposals but implementing them requires a lot of door-knocking and someone to replace the politicians with. I'd also recommend proportional representation to overcome gerrymandering.

              Recalls have been tried but I've not seen the working lately: http://www.bbc.co.uk/news/world-us-canada-18336641

              Exposure of financial gains is already available but is highly partisan: George Soros, the right-wing boogeyman, is credited with providing funds for progressive causes and "dark money" is credited with providing funds for right wing causes.

              Basically, sort partisanship out and you're halfway to solving your problems.

              reply to this | link to this | view in chronology ]

      • icon
        The Wanderer (profile), 26 Jul 2017 @ 9:22am

        Re: Re: Reasonability

        The constitution clearly states that the ONLY reasonable way to search or seize people or their belongings is via Warrant.

        Someone (I think probably you) has said that here before, and as before, I have to ask: where does it say this?

        The Fourth Amendment doesn't say this, at least not clearly.

        The Fourth Amendment says clearly and explicitly that unreasonable searches and seizures are forbidden.

        The Fourth Amendment also clearly and explicitly defines the conditions under which warrants may be issued.

        However, it does not make any clear or explicit connection between these two. In particular, it does not say that only a search which is authorized by a warrant is reasonable; in fact, it does not appear to clearly or explicitly define "reasonable" at all.

        If you see a clear or explicit statement connecting these two together, or a definition of "reasonable" elsewhere in the Constitution that I've missed, please point it out in exact words - and explain exactly how those words mean what you're saying they mean. Because so far, I'm not seeing it.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Jul 2017 @ 1:43pm

    On behalf of Alabama

    I'd really like to apologize for the existence of Jefferson Beauregard Sessions III. It was bad enough that Alabama kept electing him as congress critter, but to inflict him on the rest of the country is the height of bad taste.

    Never fear though, he isn't very bright, and he'll get caught with his hand in the cookie jar before long.

    reply to this | link to this | view in chronology ]

    • identicon
      1033Program, 24 Jul 2017 @ 7:12pm

      Re: On behalf of Alabama

      Well, ain't that cute, ya'll back east love to talk smack about California, laugh at our Assault Weapons Ban, NO open carry, bullet buttons, and small magazines, whilst telling us to slide off into the Ocean. Then you go on to brag about what Good Ol Boys ya are. Now you want to apologize a Man who has things exactly the way he wants them.

      With a fine of losing "EVERYTHING" if you don't fill out the over $10000 SARS. And now thanks to Alabama (who ain't even my state) is going to say the rest is toast too under $10,000.

      Apology is NOT ACCEPTED

      reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 24 Jul 2017 @ 9:10pm

    (3) at the same time as a seizure of contraband relevant to the forfeiture,

    The theory behind this type of forfeiture is that the money is an instrument of a crime and therefore contraband. Therefore this amounts to a self-justifying statement.

    reply to this | link to this | view in chronology ]

  • identicon
    Wendy Cockcroft, 25 Jul 2017 @ 2:35am

    Name games

    The trouble with "conservatives" today is that many of them are simply right wing nut jobs. Actual conservatives would push back hard because personal freedom is a conservative principle. This is not a "no true Scotsman" argument: personal freedom either is or isn't a conservative principle.

    We need to stop playing the name game: call things what they are. Right-wing authoritarian =/= conservative.

    - Hacked off conservative.

    reply to this | link to this | view in chronology ]

  • identicon
    Wendy Cockcroft, 25 Jul 2017 @ 2:35am

    Name games

    The trouble with "conservatives" today is that many of them are simply right wing nut jobs. Actual conservatives would push back hard because personal freedom is a conservative principle. This is not a "no true Scotsman" argument: personal freedom either is or isn't a conservative principle.

    We need to stop playing the name game: call things what they are. Right-wing authoritarian =/= conservative.

    - Hacked off conservative.

    reply to this | link to this | view in chronology ]

  • icon
    discordian_eris (profile), 25 Jul 2017 @ 4:27pm

    It really is simple to understand. Thieve's gotta steal, and it's not really theft if you steal from criminals now is it? This type of cognitive dissonance is why so many police departments don't allow people with high IQs to become cops. Because it's hellaciously difficult to pull this kind of logical fuckup when the few honest cops left can suss out your BS from a mile away.

    reply to this | link to this | view in chronology ]


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