South Carolina Justices Seem Unimpressed By Government's Inability To Honestly Answer Questions About Forfeiture Abuse

from the inartful-dodger,-esq. dept

South Carolina's civil asset forfeiture programs are abusive and unconstitutional. That was the conclusion reached by a South Carolina court late last year.

This Court finds that South Carolina's forfeiture statutes violate both the federal and South Carolina constitutional protections against excessive fines by permitting the government to seize unlimited amounts of cash and other property without regard to the proportionality of the crime that may have been committed. Indeed, they allow the government to seize unlimited amounts of cash and other property when no crime has been committed, without a criminal conviction and without proof of a crime having been committed beyond a determination of probable cause.

The programs in South Carolina lend themselves to abuse by allowing state law enforcement and prosecutors to claim 95% of anything seized. Law enforcement agencies see the largest portion: 75 percent. Another 20 percent goes to prosecutors. The state itself takes the other five percent.

This is why the state's drug warriors do very little to stop the flow of drugs into the state. Officers patrol the outbound lanes of interstates, hoping to grab cash from dealers after they've offloaded their goods in the state. And, with 95% of the seizure in play, it makes more sense to let the person leave than go through the trouble of pursuing a conviction.

Once the process starts, it barely moves forward at all. There is no time limit on forfeiture proceedings. The law only says proceedings must be started in a "reasonable amount of time." In some cases, prosecutors have waited more than two years to initiate forfeitures. During that time, the person whose property has been taken has no way to contest the seizure, much less attempt to reclaim their stuff.

The state government -- at least the agencies that directly profit from it -- don't want to see these programs ended. The state's Supreme Court has been asked to make a final declaration on the constitutionality of civil forfeiture in South Carolina. While the question is still open, all forfeiture cases in the circuit where it was ruled unconstitutional have been put on hold.

The government wants these moving again. But its arguments -- and its legal rep's apparent inability to provide straightforward answers to the court -- seem to be pushing the state Supreme Court towards siding with the circuit court.

State Supreme Court justices pressed an attorney defending South Carolina’s civil asset forfeiture law with dozens of questions on Wednesday about the practice’s legitimacy, the timing of cases being resolved, and whether the state’s system of seizure and forfeiture leads to frequent abuses by police.

The state's legal rep, James Battle, appeared to be evasive when questioned directly about the programs' potential for abuse, leading to his being shut down by an SC justice before he could start talking his way around the question.

“Wouldn’t you agree that the application of our forfeiture statute, I’m talking generally about application of the statute, has resulted in abuses, disproportionate forfeitures and is a legitimate cause for concern?” Justice John W. Kittredge said.

Battle started to answer, and Kittredge said, “I don’t want you to answer the question by filibuster, and I think you just answered because you’re not willing to acknowledge that the application of our forfeiture statutes in South Carolina have resulted in abuses.”

Battle finally acknowledged the system could be abused, but refused to acknowledge it had been abused.

Battle also claimed the courts could prevent abuse, even if the initial seizure was abusive. While it's true courts are a check against abuse, very few forfeiture cases are actually handled by judges as the small amounts of cash most frequently taken aren't worth the expense of challenging in court.

Justice Kaye Hearn asked Battle if law enforcement having a financial stake affects how they operate. Battle said it can, but a judge must approve the forfeiture.

“So I guess your answer is, even though it may have been improper on the front end, at the tail end of this process it gets fixed by the court?” Hearn said.

“Exactly,” Battle replied.

Another justice pointed out Battle's evasiveness, even as he evaded another direct question about the number of times cases are dropped in exchange for seized property. Battle's response was to claim he only worked with civil cases so he had no idea if this happened or how often. This prompted Chief Justice Donald Beatty to flat out state he "didn't believe" Battle's claim of ignorance.

This isn't over. And oral arguments can sometimes be misleading. But a system that has been repeatedly abused -- and provides all the incentives needed to encourage perpetual abuse -- looks to be on the ropes in South Carolina. The programs are so problematic the government's lawyer can't answer questions directly or honestly without confirming the suspicions of the state justices. That doesn't bode well for the future of forfeiture in the state.

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Filed Under: asset forfeiture, civil asset forfeiture, forfeiture abuse, james battle, legalized theft, south carolina


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  • icon
    That One Guy (profile), 25 Jan 2021 @ 1:46pm

    Not something you want to hear as a lawyer

    This prompted Chief Justice Donald Beatty to flat out state he "didn't believe" Battle's claim of ignorance.

    When a judge stops just shy of outright calling you a liar in court that's probably not a good sign for you or your case.

    “So I guess your answer is, even though it may have been improper on the front end, at the tail end of this process it gets fixed by the court?” Hearn said.

    “Exactly,” Battle replied.

    'Yes the system encourages abusive behavior but it's okay because if the person robbed takes it to court there's a chance they can get their property back' is such a disgusting excuse I can only assume that Battle literally has no sense of shame or the records left out the part where he threw up mid-sentence from what he'd just said.

    Just imagine bringing up that bullshit in a regular robbery case.

    'Yes Your Honor my client did improperly seize property not belonging to them, but as they were forced to hand it back I see no reason for any concern over the initial transfer of ownership, and certainly no grounds for penalties to be levied against my client.'

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

    • icon
      Upstream (profile), 25 Jan 2021 @ 2:22pm

      Re: Not something you want to hear as a lawyer

      The robbery comparison is completely appropriate, since civil asset forfeiture is indistinguishable from organized crime armed robbery, up to and including the distribution of the take, where (in this case) the soldiers get 75%, the Capos / Consiglieres get 20%, and the Don gets 5%. In the other Mafia, the percentages might be different, but that would be the only difference.

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

  • icon
    Stephen T. Stone (profile), 25 Jan 2021 @ 2:22pm

    I don’t want you to answer the question by filibuster, and I think you just answered

    Goddamn, this is already a good year for judges handing out lines for regular jackoffs like me to use during Internet arguments. 😁

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

  • identicon
    Pixelation, 25 Jan 2021 @ 4:10pm

    Par for the course

    "...the government's lawyer can't answer questions directly or honestly..."

    Unfortunately, if VP Harris ends up getting say in the matter of asset forfeiture, she will undoubtedly side with prosecutors.

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

  • icon
    Norahc (profile), 25 Jan 2021 @ 5:57pm

    There's an odd thing about civil asset forfeiture...
    If you offer the cops your assets like cash, you're arrested for attempted bribery. If they straight up rob you of them, it's asset forfeiture.

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

    • identicon
      Anonymous Coward, 26 Jan 2021 @ 4:29am

      Re:

      1. You offer the cop a cash bribe
      2. Cop refuses it and charges you with whatever 'bribing a cop is'
      3. They take the money because you were going to use it in a crime
      4. Go to jail for trying to bribe a cop and you're out the money anyway

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

  • identicon
    TheSiegeTech, 26 Jan 2021 @ 10:26am

    Mr. Battle

    Is Battle the same lawyer who got wrecked by SC Appeals court over Julian Betton? The guy who was trying to get the appeals court to reverse the decision to not grant qualified immunity to one of the cops?

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


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