Civil asset forfeiture and the law
Private property, unreasonable search and seizure, unconstitutional "takings"
“I didn’t serve three combat missions in Iraq only to come home and be extorted,” Navy veteran and gun store owner Andrew Clyde told a House Ways and Means subcommittee last February.
“Are you telling me you took my money? I can’t believe that y’all guys can walk in here and tell me y’all took every bit of my money out of the bank,” flabbergasted convenience store owner Lyndon McLellan recalled telling the men in dark suits.
“They let all the drugs flow into this country, into this town, but once it gets to my property it gives them an excuse to steal [my property] from me and take it for themselves and reward themselves for their failures,” Russ Caswell said, explaining an attempt to take his debt free real estate from him.
These middle class business owners are describing extortion, grand larceny and conversion. But not at the hands of the Corleonesi as ruled by Luciono Leggio; rather, as practiced by the IRS and the United States Department of Justice. While the former execute their thuggery by virtue of history and tradition, the later does so by statute.
They have one thing in common, however: the power to intimidate.
All three of these Americans had their assets seized under the Civil Asset Forfeiture Reform Act of 2000, a statute passed to make it easier to prosecute money launderers and drug dealers. The act allows federal and state agencies to seize assets, both real and personal, which might or could result from an alleged (but not proven) illegal activity.
Real property and tangible assets are identified at the time of the alleged crime: the drugs in the motel room or in the trunk of the car (yes, that’s why the deputy sheriff is patrolling in a new TransAm), for example.
Bank accounts are identified under the Bank Secrecy Act. This statute requires banks to report cash deposits over $10,000 to the federal government. It also forces banks to report cash deposits under $10,000 where it appears (or seems) that these deposits are made to circumvent making a $10,000 lump deposit. The lower amounts are reported as “suspicious activity” deposits.
The BSA also allows the government to “bootstrap” and find a reason to invoke asset forfeiture and clean out a bank account without (1) giving any notice or (2) charging them with any crime. The government can then hold that money until a charge is levied or the citizen proves his/her innocence.
Thus, the notion of “innocent until proven guilty” is turned on its head since the taking is done in a civil action, rather than a criminal action when the government would have to prove culpability (beyond a reasonable doubt).
Clyde’s gun shop and McLellan’s convenience store are mainly cash based businesses. However, they’ve got to keep cash off the premises for insurance purposes requiring them to make multiple deposits of under $10,000. Yet if they make these deposits and the cumulative total exceeds $10,000 (an indication of the proscribed practice of “structuring”), they get reported as “suspicious” deposits. Based on such reports, the IRS stole $950,000 from Clyde’s banking account; the FBI more than $107,000 out of McLellan’s account. And they did so ex parte, that is, without any notification whatsoever to the victims.
Property owners often have no idea what business is transacted in or on their leased properties, often trusting that there’s nothing illegal going on, as in the case of Caswell’s motel. For a period of 17 years he has rented rooms 125,000 times with only 30 instances of drug related activities. Not a bad track record. However, after the last instance, the DEA claimed that the motel was an integral part of a drug trafficking enterprise. It now seeks forfeiture of Caswell’s business and its equity of $2 million.
Civil asset forfeiture is big business for both the states and the federal government. The Institute for Justice, which helps abused citizens such as Clyde, McLellan and Caswell, recently reported that the IRS seized $242 million in 2,500 cases where structuring was the catalyst for the underlying seizures. Of that number, less than half of the owners were ever charged.
Although forfeitures are often wrongfully instigated, the states and localities are more than happy to help the feds since under the Equitable Sharing Program they stand to split up to 80% of the take. And this in an offer cash strapped local and state agencies can’t refuse.
This raises serious issues. First, to get the state and local law enforcement agencies on board, the Justice Department (or whomever) deputizes these non-federal entities to investigate and enforce federal laws. This has all the hallmarks of a national police force.
Second, it causes law enforcement motivation to shift from catching the bad guys and/or protecting the public to suckering the innocent for the sake of profit. Face it, it’s easier to rob a bank with a bogus warrant than catch the thug who did it with a gun.
Finally, the proceeds received go straight to those law enforcement agencies’ budgets (in many instances) to be spent as they see fit without any oversight from the elected leaders, a “black budget” if you will. And no doubt these monies are spent to perpetrate further civil forfeitures.
Even when the government is wrong, as in all three of these cases, they often win because the victims are seldom in a position to carry on a lengthy legal battle to get 100% of their assets back. The government, you see, will offer the targets a “deal”. If Clyde, McLellan and Caswell, for example, will let the government to keep some of their cash or property, then they’ll release the remainder. Clyde let them keep $50,000; they offered McLellan 50% but he’s fighting on as is Caswell.
This is extortion, plain and simple. And it must end.
Congress is now holding hearings about the civil asset forfeiture laws. These laws need to be changed and strengthened to protect the innocent and private property rights, not enhance the windfall to federal and local law enforcement agencies.
Gary Wisenbaker, B.A., J.D. is a native of South Georgia where he practiced law in Valdosta and Savannah for 31 years. He has served as state chairman of the Georgia Young Republicans and Chairman of the Chatham County (Savannah) Republican Party. Gary is a past GOP nominee for State Senate, past delegate to the Republican National Convention and has consulted on numerous local Republican campaigns as well as chaired or co-chaired campaigns for President and US Senate on the county and district level. He is the principal and founder of Blackstone, LLC, a corporate communications and public relations concern as well as Wiregrass Mediation Services, LLC, a general civil litigation mediation firm.
Gary recently published his first fictional work, “How Great is His Mercy: The Plea”, on Amazon.com. His opinions are regularly published on ValdostaToday.com and Zpolitics.com