October 1995

HEADLINE: Uncle Sam wants your stuff: is asset forfeiture another term for theft? federal law enforcement; The Playboy Forum

BYLINE: Bovard, James

Early on the morning of October 2, 1992, 31 people from eight law enforcement agencies barged into 61-year-old Donald Scott's home on his 200-acre Malibu ranch. Scott's wife screamed when she saw the intruders. When Scott came out of the bedroom with a gun, Los Angeles County Sheriff's Deputy Gary Spencer shot him dead. Agents then searched his home and property.

When asked to defend the raid, the sheriff's deputy said that a confidential informant had told him that Scott's wife liked to flash $100 bills; another had told him that there were 4000 marijuana plants growing on the property. Finally, an agent from the Drug Enforcement Administration flew over the property and swore he saw 50 plants. On the basis of this information, the sheriff's department obtained a warrant.

The 31 agents searched for hours but failed to find any illicit drugs. Scott's death was ruled a "justified shooting." The agents were deemed to have acted in good faith on bad information. It was all constitutional.

That was the official story. However, after a five-month investigation, a report by Ventura County District Attorney Michael Bradbury's orifice concluded that "the Los Angeles County sheriff's department was motivated, at least in part, by a desire to seize and forfeit the ranch for the government." The sheriff's deputy, the report said, had fabricated evidence to get the search warrant that "became Donald Scott's death warrant." The raid was a land grab, pure and simple.

Bradbury revealed that at a briefing before the raid, government agents were informed that the ranch had been appraised at $5 million. During the raid, a DEA agent carried a map that noted the value of adjacent properties. A deputy told a National Park Service ranger that if the DEA could find as few as 14 marijuana plants, the government could seize the entire property.

According to a family friend, the Park Service had repeatedly tried to buy Scott's land, intending to use the property as an annex to an existing park. Some observers believe that the sheriff's department planned to seize the property and then sell it at considerable profit to the Park Service.

Bradbury's report launched congressional hearings, lawsuits and impassioned editorials.

How did the land of the free get into such a mess?

In 1789 the first Congress passed a law allowing the government to seize the property of pirates and smugglers who sought to evade tariffs. The founding fathers were cautious, however, because of their experience with British colonial governors who had the nasty habit of confiscating property without cause. The new government argued that it could seize a pirate's ship or, in one case in 1814, a cargo of contraband coffee beans, because ships and bags of coffee had no constitutional rights. But citizens did. Offshore, the government played by one set of rules. Onshore, property rights were often considered to be sacred.

Twenty-five years ago, the remnants of that reverence disappeared, one of the first victims of the war on drugs.

In 1970 Congress enacted legislation to permit the seizure of property of Mafia organizations and major drug smugglers. The logic behind the law was politically correct:

Felons should not be allowed to keep the spoils of criminal activity. The tools of the trade--ships, planes, guns, drug labs--should not be returned to the hands of organized crime for later use. But the Racketeer Influenced Corrupt Organization statutes spread like a virus, and federal agents can now seize private property under 200 different statutes. Since 1985 federal seizures of property under forfeiture laws have increased by 1500 percent and now total almost $4 billion.

The RICO virus, with its promise of a new revenue source for cash-strapped agencies, touches every level of government. According to one source, state and local governments have increased their confiscations of private property by a hundredfold in the past decade.

The legal language in seizure cases still holds to its early form: U.S. Government vs. 1994 Mercedes-Benz is the tide of one seizure case; The United States of America vs. Twelve Thousand Three Hundred Ninety Dollars is another. But the naming of inanimate property hides the assaults on individuals. The government loves asset forfeiture because it gets to play by new rules. Suspicion of criminal activity is all it takes to launch a raid. Tossed out the window are probable cause, the presumption of innocence and the right to a speedy trial. The government doesn't have to prove anything--the victim of a seizure does.

Close to 80 percent of the people whose property is seized by federal agents are never charged with a crime. Many agents use forfeiture laws to pillage, often acting on trivial or false charges. Forget the original targets-drug cartels and the Cosa Nostra. Police now regularly seize the cars of johns, the bikes of graffiti artists, the tractors used by farmers, the life savings of the elderly and more:

* Customs officials confiscated the $250,000 yacht of Willem Eickholt, a Dutchman living in Washington State. His crime? He had sailed to Cuba and given away 15 cartons of dried milk and other care packages to a Cuban organization that feeds the hungry.

Customs officials threatened to charge Eickholt with violating the Trading With the Enemy Act.

* In Augusta, Georgia the FBI seized three Mercedes-Benzes from a businesswoman after alleging that her husband had placed sports bets on her car phones.

* In Ottsville, Pennsylvania, police seized the $250,000 home of Richard and Bonnie Nightingale after officers found marijuana plants inside. The Nightingales and their three children were evicted. Deputy District Attorney Gary Gambardella observed: "People say that selling drugs is a victimless crime, but the children are the real losers here."

* New Jersey police confiscated a woman's 1987 Oldsmobile after they alleged that her son had used it to drive to a store where he then shoplifted a pair of pants.

* Federal prosecutors in Pittsburgh nearly destroyed Anna Ward after she had fully cooperated with them in their attempt to solve the murder of her husband, Darryl Ward. Prosecutors decided that Darryl Ward had been a drug dealer and that all of his previous income was drug-related. They confiscated almost all of Anna Ward's assets (she had her own legitimate business), including the family's furniture. Prosecutors even sought to confiscate the proceeds of her husband's life insurance. Anna Ward and her three children were forced to go on welfare.

* In Utah police seized the 160-acre ranch of Bradshaw Bowman after police found a handful of marijuana plants growing on his property, far from his house. Eighty-yearold Bowman told The Pittsburgh Press: "I've had this property for almost 20 years, and it's absolute heaven. My wife is buried here. I didn't even know the stuff was growing there."

Perhaps you think the war on drugs is a noble enterprise, that the feds' "take no prisoners--only property" approach is fine. If so, hold on to your wallet:

* In July 1992 several Cleveland landlords informed the police of drug dealing in their buildings. The city responded by seizing the buildings and evicting all tenants, even when the dealing occurred in a single apartment.

* The owner of a 36-unit apartment building in Milwaukee evicted ten tenants suspected of drug use. To further help eradicate the drug problem, he gave a master key to beat cops, forwarded tips to the police and hired two security firms to patrol the building. The city still seized his building. Why? It wanted the landlord to evict all tenants and leave the building vacant for a number of months. The landlord didn't want to bankrupt himself. But it was cheaper for the cops to seize the building and empty it rather than to engage in police work at the site.

Often, forfeitures are based on the word of confidential informants, many of whom are ex-convicts or people avoiding conviction by cooperating with police. Confidential informants are given as much as 25 percent (up to $250,000) of the value of any property that agents seize as a result of their leads. A worse set of incentives would be hard to imagine. A paid informant in Adair County, Missouri told police that Sheri and Matthew Farrell were processing "marijuana for sale" on their 60-acre farm, and the government seized the property. The informant later refused to testify in court--first claiming illness, then loss of memory. Federal prosecutors dropped the charges against the Farrells, who got their land back only after agreeing not to sue the government for damages.

What happens to the valuables that government agents grab from citizens?

Many police agencies keep all or most of what they seize, sometimes using the money to buy exercise equipment, expensive cars, gold watches and, in one case, to pay the settlement in a sexual harassment suit. In Nueces County, Texas, Sheriff James Hickey used assets from a federal drug forfeiture fund to grant himself a retroactive $48,000 raise just before he left office.

Asset forfeiture also encourages police theft. Last year, 26 members of the elite narcotics squad of the Los Angeles County police department were convicted of stealing money from drug suspects. Some defended their behavior, claiming that since the government was allowed to steal money, why couldn't the cops do the same? County Sheriff Sherman Block said, "I don't know how you can draw an analogy between the asset forfeiture program, which is a matter of law, and helping yourself to what's available." Unfortunately, because forfeiture laws are so vague and expansive, there may be little difference.

Accounting for forfeiture funds is sometimes incredibly sloppy. An investigation by the General Accounting Office discovered that the Customs Service had arbitrarily made a $6.4 million deduction to its forfeiture fund in order to make its books appear balanced and to "account" for missing cash.

In 1993 Representatives Henry Hyde (R-Ill.) and John Conyers (D-Mich.) both proposed bills to limit the government's asset seizure powers. Neither passed. In June Hyde again introduced a Civil Asset Forfeiture Reform Act, which is endorsed by the National Association of Criminal Lawyers and the ACLU.

Many civil libertarians believed that the Clinton administration would correct some of the more overt abuses of asset forfeiture. Attorney General Janet Reno, however, has continually postponed substantive reform. The federal courts have ruled that asset seizures can sometimes violate the Eighth Amendment's prohibition on "excessive" fines. Such was the case of the South Dakota man whose car-repair business and mobile home were confiscated after he sold two grams of cocaine to an undercover agent. A federal appeals court recently ruled that asset forfeiture can violate double jeopardy provisions because the defendant is punished twice--once through the seizure of his property by administrative means and a second time through a criminal trial. In 1992 the Eighth Circuit Court of Appeals complained that it was "troubled by the government's view that any property, whether it be a hobo's hovel or the Empire State Building, can be seized by the government because the owner, regardless of a criminal record, engages in a single drug transaction."

The courts may be troubled, but the rulings so far have done litde to deter enthusiasm for the practice.

In January the mayor of Helper, Utah, Mike Dalpiaz, announced that police officers would be permitted to keep up to 25 percent of all the property or cash they confiscate from suspected drug dealers. Dalpiaz explained the program's rationale: "Why not give our guys a reason to be more aggressive? This doesn't cost the city a thing; it's a wash. If the city gets a house through a drug forfeiture, and we put it on the market and sell it for $50,000, then, by God, the guy who made the bust is going to get a nice bonus."

A concept that was intended to punish pirates has created a nation of pirate police. When greed and a lust for spoils become the engine of law enforcement, what happens to justice?

Editor's note: In June the Supreme Court agreed to hear a case on asset forfeiture where police seized a car used by a married man arrested for soliciting a prostitute. The wife, an innocent party, claims that the seizure violated her right of due process.!

James Bovard is author of "Shakedown: How the Government Screws You From A to Z."