Supreme Court strikes blow against policing for profit…….

A blow against states that raise revenue by hefty fines, forfeitures

The Supreme Court ruled unanimously Wednesday that states cannot impose excessive fees, fines and forfeitures as criminal penalties.

The decision, which united the court’s conservatives and liberals, makes clear that the Eighth Amendment’s prohibition against “excessive fines” applies to states and localities as well as the federal government.

Associate Justice Ruth Bader Ginsburg, just back in court this week after lung cancer surgery, wrote the majority opinion and announced it from the bench.

“The protection against excessive fines guards against abuses of government’s punitive or criminal law-enforcement authority,” Ginsburg wrote. Quoting in part from the court’s ruling in 2010 that Second Amendment gun rights apply to the states, she said, “This safeguard, we hold, is ‘fundamental to our scheme of ordered liberty.’ “

 


Tyson Timbs’ case against Indiana over the seizure of his Land Rover went all the way to the Supreme Court.

It was a victory for Tyson Timbs, who sold less than $400 worth of heroin to undercover police officers in 2013. Upon conviction, Indiana seized his Land Rover, which he had purchased for more than $42,000 with the proceeds of his father’s life insurance policy. That seizure will be reconsidered by Indiana courts.

Liberals and libertarians alike have groused for years about what they see as increasingly greedy governments. A study by Harvard University and the National Institute of Justice found that about 10 million people owe more than $50 billion as a result of the fines, fees and forfeitures.

Many of the fines and forfeitures are contested and reduced. The court’s ruling could cut down on their imposition in the first place.

State and local governments increasingly use funds collected in criminal and civil cases to pay for municipal services. The 100 cities with the highest proportion of revenue from fines and fees in 2012 financed 7 percent to 30 percent of their budgets that way, according to the American Civil Liberties Union.

“Imposing monetary penalties that bury people under mountains of accumulating debt has devastating consequences on individuals, families and entire communities, particularly low-income communities of color,” said Nusrat Choudhury, deputy director of the ACLU Racial Justice Program.

The practice often leads low-income defendants further into poverty, crime, prison and recidivism, the liberal Southern Poverty Law Center and libertarian Cato Institute argued in court papers. The American Bar Association noted that nearly two-thirds of prisoners have little prospect of paying the fines and fees after their release.

Timbs’ conviction resulted in a year’s home detention, five years’ probation and about $1,200 in fees. But it was the seizure of his SUV that led to the lawsuit. The 2012 Land Rover LR2 was even a named plaintiff in the case.

Wesley Hottot, senior attorney with the Institute for Justice who argued Timbs’ case, said the ruling “should go a long way to curtailing what is often called ‘policing for profit.’ “

“Police and prosecutors employ forfeiture to take someone’s property, then sell it and keep the profits to fund their departments,” Hottot said. “This gives them a direct financial incentive to abuse this power and impose excessive fines.”

Brianne Gorod, chief counsel at the liberal Constitutional Accountability Center, said, “Significantly, this case has united progressives and conservatives – both advocates and the justices themselves – in a shared understanding of the original meaning of the Constitution.”

The seizure had been defended by several national municipal groups. They argued in court papers that the vehicle was used in heroin trafficking that could have generated hefty profits and that its forfeiture properly left Timbs without the ride he needed for his craft.

The case came to the Supreme Court from Indiana’s highest court, which ruled that the excessive fines clause doesn’t apply to the states. Nearly all rights, such as the Second Amendment’s right to bear arms for self-defense, have been extended. The right to a unanimous jury verdict under the Sixth Amendment has not.

Ginsburg noted that other elements of the Eighth Amendment already are applicable to the states. The amendment states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

“For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history,” Ginsburg wrote. “Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies.”

 

ASSET FORFEITURE-LEGAL THEFT OR GOOD LAW ENFORCEMENT TOOL?


Under Michigan law, Stephen Nichols was supposed to get a “prompt” court hearing to challenge the forfeiture of his car, which police in the town of Lincoln Park seized in 2015 because he was driving it without valid insurance. It’s been three years since then, and Nichols still hasn’t had his day in court.

Last month Nichols and two other plaintiffs filed a federal class-action lawsuit, first reported by The Detroit News, alleging that Wayne County police and prosecutors seize residents’ property and force them to wait months, sometimes years, for a hearing. The suit argues the delays violate the 14th Amendment right to due process.

In addition, Wayne County prosecutors offer to settle cases out of court for $900, leaving owners to choose between getting their vehicle back quickly, even if they believe they were innocent, or shelling out even more money for a lawyer and waiting months to get their means of transportation back.

“[Nichols] still hasn’t had any hearing,” Shaun Godwin, attorney for the plaintiffs says. “The law says prosecutors have to bring a case promptly, but it’s just been in limbo for three years.”

The two other named plaintiffs in the lawsuit, Adam and Ryan Chappell, are a father and son, respectively. According to the suit, the younger Chappell was borrowing his dad’s car one day in July 2016 when Wayne County sheriff’s deputies saw him pull into a medical marijuana dispensary in Detroit. The cops pulled him over as he left and seized the car. No marijuana was recovered from the car, and no criminal charges were filed in the case, according to the lawsuit.

“Basically they alleged in the police report that he responded to a question and said he bought $15-worth of marijuana, but there’s no mention of recovery of any marijuana in the police report,” Godwin says. “Of course my client says that didn’t happen.”

Chappell’s car was one of hundreds impounded by the Wayne County Sheriff’s Office for visiting a medical marijuana dispensary.

The Wayne County Sheriff’s Office reported in 2016 that it surveilled 32 medical marijuana dispensaries, performed 634 investigatory stops of cars leaving dispensaries, and impounded 467 vehicles as part of Operation Push-Off, a local law enforcement initiative targeting drugs, prostitution, and drag racing funded by licensing fees collected from the state’s medical marijuana program.

According to state reports, Wayne County law enforcement received $473,256 in Medical Marihuana Operation and Oversight Grants in fiscal year 2016 and $483,132 in 2017.

Chappell was then handed a notice that the Wayne County Prosecutor’s Office intended to forfeit his car, unless he paid a $900 out-of-court settlement fee or filed a claim to contest the seizure within 20 days, along with a $250 bond. (The bond requirement has since been eliminated by the Michigan state legislature.)

The settlement offer is standard in forfeiture cases under Operation Push-Off.

“Our common practice is to offer to the claimant three choices: 1) contest, 2) redeem, or 3) relinquish (forfeit) their interest,” a spokesperson for the Wayne County Prosecutor’s Office wrote in an email. “We leave the ultimate decision to the claimant. A redemption is a settlement short of going to trial since we are in the civil arena.”

William Maze, a Detroit attorney who handles asset forfeiture cases, says Nichols’ three-year wait for a hearing is an outlier. Most cases, he says, only take three to four months, but more problematic are the suspicionless seizures of cars made by police and out-of-court settlements offered by the prosecutor’s office.

“The bigger issue with Wayne County forfeiture is—for drugs, prostitution and drag racing—they’re seizing the vehicles on sometimes the flimsiest of evidence or no evidence at all, just the mere allegation that someone went to a drug house or dispensary,” Maze says. “They don’t find anything in the car or on the person, but they take the vehicle and offer to settle with the owner for $900. They set the number at $900 because they know it’s low enough that the person can’t afford to hire an attorney to fight it for that.”

The Chappells decided to fight. The Wayne County Prosecutor’s Office waited 72 days to file a forfeiture complaint against Chappell’s car under the Michigan Controlled Substances Act. It was not until February 2017, roughly seven months later, that a judge dismissed the complaint and ordered the police to return Chappell’s car.

When Chappell finally got it back, the suit says, he “discovered that the driver’s side window of the vehicle had been left down, the battery was dead, the tires were flat, that damage to the exhaust and transmissions systems had been caused and marks left on the undercarriage of the vehicle consistent with the vehicle having been lifted by a fork lift.”

Under civil asset forfeiture laws, police can seize property—cars, cash, even houses—suspected of being connected to criminal activity, even if the owner is not charged with or convicted of a crime.

Law enforcement groups say asset forfeiture is a vital tool to disrupt drug trafficking and other organized crime by cutting off the flow of illicit proceeds. But civil liberties groups say the lack of due process protections for property owners and the perverse profit incentive created by asset forfeiture lead police to target everyday citizens instead of cartel kingpins.

As Reason
reported, nearly 1,000 people in Michigan had property seized and forfeited last year without ever being charged with a crime.

The Michigan legislature is considering a bill that would require police and prosecutors to obtain a conviction before they could seize property. The bill is similar to legislation that in recent years essentially abolished civil asset forfeiture in Nebraska and New Mexico. Most U.S. states have passed some form of asset forfeiture reform in the last five years or so based on bipartisan civil liberties concerns.

Settlement agreements like the ones in Wayne County are not unusual, but civil liberties advocates and even some state lawmakers have said they essentially amount to a shakedown. Before Albuquerque ended its asset forfeiture program, it would force owners, even innocent owners, to pay $850 to recover their cars. In Albuquerque resident Arlene Harjo’s case, the city offered to return her car for $4,000 after her son was arrested for drunk driving. In Mississippi, a Reason investigation showed prosecutors would often settle with defendants, agreeing to charge them with lesser crimes in exchange for keeping their car. The IRS had a nasty habit of seizing small-business owners’ bank accounts under obscure anti-money laundering laws, and then offering to drop criminal prosecution in exchange for a large chunk of the money.

The Wayne County Prosecutor’s declined to comment on the lawsuit. The Wayne County Corporation County, which represents county agencies, did not immediately respond to a request for comment.

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Utah Supreme Court sides with man who wants to recover $500K seized in traffic stop


A jury found he was not guilty of a traffic violation in February, but a Utah man still has not recouped the $500,000 in cash troopers seized when they cited him for following another car too closely in 2016.

Kyle Savely last week got much closer to recovering the money after the Utah Supreme Court ruled in his favor. A lower Utah court had the power to order the cash be returned to him even after the federal government sought to take the money, the opinion states.

The unanimous decision surrounds a Utah law allowing police to seize property they suspect is linked to a crime, even if the owner isn’t charged or convicted. The Tuesday ruling was cheered by civil liberty advocates, who say it closes a loophole that has allowed police to skirt protections in the law by handing off the property to the federal government.

“Law enforcement has been deliberately trying to avoid the requirements of Utah law in a number of cases, including this one. The clear message from the Utah Supreme Court is they better follow the law,” said Savely’s attorney, James Bradshaw.

Not so, said Jared Bennett, first assistant U.S. attorney for Utah. Forfeiture is the government’s legal avenue to defund crime, Bennett said in a statement.

“This decision in no way suggests, much less concludes, that local law enforcement officers are using federal law to skirt state laws,” he said. Bennett contends the justices simply determined that the state had jurisdiction over Savely’s cash, despite ambiguity in the law, and that the federal government would need to obtain an order from the Utah court to take over power of the money.

Under a U.S. Justice Department program, local law enforcement can redeem 80 percent of money derived from the property after it is turned over to federal officers. Critics say the incentive can lead to abuses by police. But law enforcement agencies have said that forfeiture laws help fight organized crime and drug kingpins, while also helping cover costs.

The Utah Attorney General’s Office and the Utah Department of Public Safety, which oversees the Highway Patrol, declined to comment on the outcome of the case.

The decision reversed a 3rd District Court decision that it did not have power to order Savely’s money returned after a federal drug investigation warrant was issued for the cash. Savely has not been criminally charged in a federal drug case.

Justice Deno Himonas in the opinion noted the warrant came several months after the traffic stop. Utah’s district courts can make decisions about seized property from the time police serve a notice of intent to keep the items, Himonas added.

A series of reforms in Utah have limited when and how the agencies can use the money. Connor Boyack, president of the libertarian-leaning Libertas Institute, said the ruling points to a need for even more oversight.

“This is a signal that there needs to be greater accountability for law enforcement engaging in this type of practice,” Boyack said. His nonprofit has backed previous reforms, including reporting requirements on seized cash and belongings in Utah.

In 2017, Utah police took in $2.2 million in cash and property, which were placed into a state fund that parceled out grants to cover costs of training, equipment and law enforcement task forces. The agencies also received $1.1 million from federal agencies that seized property in the state, including the Drug Enforcement Administration and the Internal Revenue Service.

Civil forfeiture laws have come under scrutiny across the country in recent years, and some states have barred them altogether. North Carolina, New Mexico and Nebraska have prohibited the seizures before a conviction.

The American Civil Liberties Union of Utah agrees with that approach, said Marina Lowe, ACLU legislative and policy counsel.

“The takeaway here is that this individual was stopped and these assets were seized simply because they were assets of a large quantity,” Lowe said. “There was no crime that had been committed, and that seems wrong on all accounts.”

Bradshaw would not say why his client was carrying 52 bundles of cash at the time of the traffic stop, but emphasized there was no evidence that his possession of the money was illegal. He declined to make his client available for an interview and said he would soon ask again in court filings for the money to be returned.

Sen. Todd Weiler, R-Woods Cross, said he plans to bring a proposal to tweak the law in the 2019 legislative session. He believes police should not have incentives to take cash and items, especially when there’s no criminal action against them.

“To say that the cops could take your money, or your car, or whatever, never charge you with a crime and never give it back, it sounds ludicrous, and most people would say ‘No, you can’t do that. I live in America,'” he said. “This is something that really concerns a lot of people when they understand what’s happening.”