Ozment Law, PLC founder and managing attorney Elliott Ozment recently testified in proceedings of the U.S. Civil Rights Commission on the discriminatory enforcement and negative consequences of civil asset forfeiture, a program that allows police to steal a person’s property without charging the person with a crime.
Ozment’s comments focused on the impact of asset forfeiture on the immigrant community but addressed the historical foundation of the program as well.
Mr. Ozment this week supplemented the record from his testimony in Nashville with additional written comments. You may download Mr. Ozment’s complete written comments at the provided link:
Written Comments on Civil Asset Forfeiture
Please find below my written submission expanding upon my remarks before the Tennessee Advisory Committee to the U.S. Commission on Civil Rights on July 25, 2017 relative to the issue of Civil Asset Forfeiture.
WRITTEN SUBMISSION RE CIVIL ASSET FORFEITURE
Introduction
Since the discovery of America, white men have had considerable difficulty in understanding and dealing with the concept of “property rights”.
Upon discovering America, Christopher Columbus assumed that the living, breathing natives of the West Indies could become his property to deal with as he wished. On October 12, 1492, the first day he encountered the native people of North America in the West Indies, he wrote in his journal: “They should be good servants …. I, our Lord being pleased, will take hence, at the time of my departure, six natives for your Highnesses.” These captives were later paraded through the streets of Barcelona and Seville when Columbus returned to Spain.
The immoral concept of humans as property became even more engrained when the Dutch brought the first Africans to Jamestown, Virginia to help with very lucrative crops such as tobacco. Some historians have estimated that as many as 6 to 7 million blacks were brought to America as slave property in the 18th century alone, not only adding to the moral depravity of America but depriving Africa of some its healthiest and most able men and women.
While America was still struggling with how to rid itself of its original sin of holding humans as slave property without seeing the Union destroyed with the secession of the southern states, other white men in the South decided it was just fine for them to take real property from Native Americans, which they had owned and occupied for hundreds, if not thousands, of years before white men ever saw it, and force their removal to strange and less fertile lands much further west, and this they did with the Indian Removal Act of 1830, again to placate the South. Tens of thousands of Native Americans were forced to migrate west in a movement called the “Trail of Tears”.
The Supreme Court misconstrued the “property concept” in the Dred Scott case in 1857, one of the most reprehensible decisions ever rendered by the Supreme Court. It held that the Property Clause of the Constitution only applied to territory possessed at the time of ratification in 1787, that the Missouri Compromise was unconstitutional, slaves could never be citizens, and the Due Process Clause of the Fifth Amendment prohibited the federal government from freeing slaves brought into federal territories.
This radical holding hastened the onset of the Civil War, in which slave states sought to protect their “property rights” by keeping their slaves as property. They violated their pledge of allegiance to the Union and separated from the United States – all in an attempt to keep their “property”. The Union saw 110,000 combat deaths and over 250,000 “other casualties”; the Confederacy saw 95,000 combat deaths and over 165,000 “other casualties” – all because a few rich Southern planation owners wanted to protect their alleged “property rights”. The effects of that war continue to curse the South of today; had it been permitted to separate from the Union and form its own nation, it would today be little better than those third world countries of this hemisphere steeped in poverty and illiteracy.
Civil Asset Forfeiture – Government’s Latest Property Grab Scheme
Modern civil forfeiture laws date back to the failed and racist “War on Drugs” implemented by President Ronald Reagan. The stated intent of these forfeiture laws was to capture the cash and other proceeds from the sale of drugs held by drug cartels and organized crime groups, mainly through traffic stops. Instead, these laws have led to the disproportionate incarceration (often for profit) of people of color (including immigrants), have no correlation to actual drug harm reduction, and have caused a redistribution of property and wealth from impoverished communities and communities of color to local and federal governments through asset forfeitures because those communities lack the resources to effect the return of their property to innocent community members (ACLU reports in some areas 2/3 of the seizures are from minorities).
It is important to note that these seizures do not require “probable cause”. Assets are seized according to an individual officer’s whim.
Return of “Equitable Sharing Program” – Expansion of Civil Asset Forfeiture
With this Southern legacy of twisted concepts of “property rights” as outlined above in the Introduction, it is little wonder that U.S. Attorney General Jefferson Bureaugard Sessions, born and bred in the State of Alabama and unabashedly raised in the George Wallace tradition of that State, has announced new measures to add expanded abusive implementation to a property seizure program known as “civil asset forfeiture”.
On July 19, 2017, Attorney General Sessions brought back the Justice Department’s “Equitable Sharing Program”, a nice name for a program that has proven to be so thoroughly corrupt and unfair that it had been severely limited by Eric Holder, President Obama’s Attorney General, who had confined the program to illegal firearms, ammunition, explosives, and child pornography. With the “Equitable Sharing Program” now freed from the Obama-Holder restraints, local law enforcement agencies can now seize cash and other assets without complying with any due process requirements and transfer those assets to federal control, whereupon the federal government then puts those assets into a common fund and sends 80% of those assets back to the local law enforcement agencies instead of a state’s general fund, as required by many state laws.
Federal forfeiture programs have collected almost $28 billion in the last decade alone, according to a Justice Department Inspector General report this past April, but there is little, if any, evidence that this has had any impact on the drug cartels. The Pittsburgh Press recently conducted a survey of over 500 federal civil asset forfeiture cases and found that over 80% of the people whose property is seized under civil asset forfeiture laws are never charged with a crime. This strongly implies that this entire program is more about power-grabbing money from innocent motorists and other victims of civil asset forfeiture than stopping crime. This means that if money and property seized during these traffic stops are really the proceeds of illegal drug trafficking, the drug traffickers are permitted to walk off scot-free to continue their illegal practices. What kind of law enforcement is this?
Real Agenda of Civil Asset Forfeiture Programs
Even worse, civil asset forfeitures are really about lining the pockets of the law enforcement agencies that perpetrate this rip-off. As a result of Jeff Sessions’ newest initiative, states like Tennessee are virtually powerless to pass a law to prevent this unjust enrichment by out-of-control rogue law enforcement agencies.
Missouri is a case in point. In 1993 the Missouri state legislature passed a law requiring that a property owner whose assets had been seized had to be convicted in court of a felony before those assets could be forfeited – and if such a conviction occurred, the forfeited property went to an education fund instead of a law enforcement slush fund. What did Missouri law enforcement do? Under the new law, a state law enforcement officer would not actually “seize” any cash found in a traffic stop; the state officer would call a federal agent who would come to the scene, “seize” the cash or asset, then process the seizure through the federal government, thus insuring that the local law enforcement agency that “discovered” the asset would get 80% of the asset for deposit into its own slush fund instead of the state education fund. A 1999 report by then-Missouri State Auditor Claire McCaskill found that 85% of the money and property “discovered” by state officers during traffic stops were “seized” under federal forfeiture laws and thus distributed to law enforcement slush funds instead of the Missouri state education fund.
Tennessee’s Problems With Civil Asset Forfeitures
Are Even More Acute
In Tennessee, the problems with civil asset forfeiture are more acute because we in Tennessee lack many of the procedural safeguards and higher standards of proof to uphold asset forfeitures that other states have.
Tennessee has few limits on civil asset forfeitures. Some states require specific procedural safeguards, but in Tennessee no one has to be convicted or even charged with a crime in order for Tennessee agencies to keep all the proceeds.
Procedural safeguards are necessary to ensure that due process rights of motorists and civilians are protected, since asset forfeiture exists independent of probable cause for criminal activity under state law, but they are nonexistent in this state, despite the fact that deprivation of property interest should require some due process protections under the 5th and 14th Amendments.
Seizures in Tennessee during 2016 alone resulted in:
(a) 7,616 civil asset forfeiture proceedings;
(b) $17 million in cash seized;
(c) 3,636 vehicles seized.
Of those few cases pursued by victims in Tennessee to get their assets returned, most disputed cases settled, rather than proceeding to full hearings, resulting in innocent persons recovering less than full value of their assets.
Our experience in Tennessee is that police and “judicial drug task forces” (often using unmarked patrol vehicles, display of weapons, and other intimidating tactics) most often make asset forfeitures on roadways and highways. These drug task forces often rely on nebulous “profiles” to justify seizures of cash and valuable possessions like jewelry and computers. Profiles are often arbitrary – many of them related to race.
These forfeitures start with profiling (e.g., motorists who have black skin or brown skin, male motorists with long hair) followed by a stop for any one of alleged minor traffic infractions (speeding, failure to signal, excessive window tinting, lighting violations, etc.). After a vehicle is stopped, the law enforcement officers then proceed with intimidating motorists into consenting to warrantless searches.
One of the most active task forces in this area, the 21st Judicial Drug Task Force based out of Franklin, Tenn., operates on interstate highways in specially assigned patrol vehicles. Non-cash assets seized by this law enforcement agency are auctioned online and the proceeds from these auctions are retained by the agency. See their website: www.drugtaskforce.net.
They are allowed financial independence – which means they are also devoid of meaningful oversight and the power of the purse. Tenn. Atty. Gen. Op. 05-038, “Ability of Judicial District Drug Task Force to Own Real Property,” One local judicial drug task force purchased expensive license-reading technology with its forfeiture assets – used to justify stops of people for outdated tags.
Civil Asset Forfeiture Programs Target Poor and Minorities
The ACLU has called civil asset forfeiture by the U.S. Drug Enforcement Administration an “ongoing attack” on people of color. This report specifically states: “Civil asset forfeiture was originally created to take away booty from drug kingpins. But the practice has been perverted into an ongoing attack on [motorists] who can’t afford to fight the government in court, a burden that falls disproportionately on low-income people and people of color.”
A Special Problem for the Immigrant Population
Tennessee immigrant experience with civil asset forfeiture, with which I am most acquainted because of the nature of my practice, is even worse. Several factors compound the problem for non-citizens.
Immigrants and refugees are largely part of the communities of color that are targeted by asset forfeiture in general. Many immigrants are known to carry large quantities of cash because many employers take advantage of undocumented employees, paying them illegally suppressed wages, and concealing their activities through paying in cash. Many immigrants cannot get bank accounts because of ID requirements (some of these also are of federal creation, like the REAL ID Act and the USA PATRIOT Act).
Travel patterns for migrant farm workers and seasonal construction work correspond to drug trafficking profiles, which causes excess stops of innocent immigrants (e.g., west-east, Texas/California/Florida origin/destination, desert southwest, certain types of vehicles). These profiles may be so weak that they would not even hold up in criminal court proceedings, but sufficient under lower burdens in civil proceedings. Jurisdictions that do not typically have quality translation available for traffic stops nonetheless know how to ask whether motorists are carrying large quantities of cash in Spanish.
Law enforcement can intimidate non-citizens into consenting to searches and surrendering their assets through (a) language barrier issues, (b) threatening with criminal arrest for No Driver’s License because of state law restricting driver’s licenses, (c) arrests for driver’s license charges may coincide with civil asset forfeiture – criminal arrest gives broader search powers to police under Fourth Amendment caselaw, even without consent, (d) limited access to redress – lack of education and knowledge of arcane court/agency process to get property released combined with a fear of courts, (e) fear of fighting the U.S. government because of the expense involved and the morphing of civil asset forfeiture into the deportation/removal of relative, (e) the time involved, often exceeding two years, (f) the expense involved in hiring an attorney, who often requires an up-front retainer on these types of cases rather than contingency fee arrangements, and (g) the inability to get transportation to court or administrative agencies (since many do not have and cannot get a driver license.
The most egregious case of civil asset forfeiture abuse seen in my office was a Latino gentleman who had been stopped (for no reason) by the 21st Judicial Drug Task Force and had suffered a seizure of $18,000 cash. He had just sold a vehicle and had a bill of sale to prove the source of the cash at the time the seizure was made on the side of the highway, but the officers refused to take any of this into consideration and took the cash anyway. He was not arrested or charged with a crime. By the time he came to my office, the deadline date for contesting this seizure in an administrative proceeding had already passed (times for initiating appeals of forfeitures are very short) and there was nothing I could do.
Jeff Sessions’ Real Motivation for Resurrecting the Abuses of Civil Asset Forfeiture
Since there is no evidence whatsoever that the civil asset forfeiture program in general, nor the “Equitable Sharing Program” specifically, has been effective in fighting drugs, the question is why is the Department of Justice under Attorney General Jeff Sessions now adding new force and effect to this controversial and ineffective program?
I believe a case can be made that this renewed focus on the civil asset forfeiture program is the result of a twisted desire by a xenophobic and racist attorney general to persecute and make life so miserable for Latinos they will elect to leave the United States, even if already documented and entitled to stay in this country. It is simply one part of a comprehensive campaign dedicated to achieve a total ethnic purge through ethnic cleansing by this government and “restoration” to a white nationalist homeland. Here is the evidence for this proposition:
(1) Sessions is opposed to “birthright citizenship”, guaranteed under the 14th Amendment. He has said, “I’m not sure exactly what the drafters of the [14th] Amendment had in mind, but I doubt it was that somebody could fly in from Brazil and have a child and fly back home with that child, and that child is forever an American citizen.” This comes from the lips of an attorney and now Attorney General who is blissfully unaware of long-established constitutional law (United States v. Wong Kim Ark, 169 U.S. 649 [1898]). President-elect Trump concurred on August 18, 2015: “I don’t think they have American citizenship and if you speak to some very, very good lawyers . . . many of them agree with me and you’re going to find they do not have American citizenship. We have to start a process where we take back our country. Our country is going to hell.”
(2) Sessions led the fight against the Gang of Eight’s 2013 Comprehensive Immigration Reform Act and played a key role in killing a reform bill in 2007. After the Senate passed the 2013 bill, Sessions led an effort in the House to make sure it did not become law.
(3) Also in 2013, he supported a state law in Alabama aimed at encouraging “self-deportation” that required public schools to verify the immigration status of students and their parents and made it a crime to not carry their legal papers. Federal courts overturned it.
(4) Former aides to Sessions were instrumental in adding tough immigration proposals to the GOP platform at the Republican National Convention in July, 2016 that included cutting federal funding to cities that don’t cooperate with ICE agents and increasing penalties for immigrants convicted of re-entering the US after being removed. It was Sessions’ idea to bring to the GOP convention the families of victims who had been murdered by undocumented immigrants.
(5) During the Republican National Convention in July, 2016, Sessions himself said, “The president has the clear power to suspend immigration to protect America.” In the spring of 2013, as the comprehensive immigration bill was undergoing a markup in the Senate Judiciary Committee, Sessions proposed an amendment to limit legal immigration; only Sessions voted for it, and it failed 17-1. This should raise the concern of every Chamber of Commerce in America, whose member companies in many cases rely on foreign labor to continue in business. Sessions has mocked business leaders who defend current legal immigration levels for playing “masters of the universe”. Sessions fiercely opposes continued immigration because he believes he is fighting in a holy crusade for the soul and identity of America as he knows it in Alabama.
(6) Sessions favors turning away children who arrive at the border alone who are attempting to reunite with families living in the U.S.
(7) Sessions has called DACA “backdoor amnesty” and could furnish legal support for the rescission of the executive order that established the policy.
(8) In 2014 Sessions received the “Annie Taylor Award” from the David Horowitz Freedom Center’s annual “Restoration Weekend” retreat in Florida. Previous recipients of the award have included anti-Muslim activist Pamela Geller and the late anti-feminist firebrand Phyllis Schlafly. Subsequent recipients have included extremist sheriff David Clarke and in 2015, Milo Yiannopoulos, who through his job at Breitbart News promoted the racism and misogyny of the white nationalist “Alt-Right”. Horowitz himself is an extremely troubling figure: he claims “all Muslim associations are fronts for the Muslim Brotherhood” and promoted smears against Hillary Clinton’s aide Huma Abedin. Horowitz has also lashed out at Republicans, calling Bill Kristol a “renegade Jew”.
(9) In 2015 Sessions accepted the “Keeper of the Flame” award from the Center for Security Policy, the group run by anti-Muslim conspiracy theorist Frank Gaffney. Gaffney believes U2 lead singer Bono is a tool of Islamists; Tim Kaine is aligned with the Muslim Brotherhood; Black Lives Matter has aligned with “Islamic supremacists”; Twitter (President-elect Trump’s favorite form of communication) is advancing Sharia law. Gaffney has accused conservative activist Grover Norquist of being an agent of the Muslim brotherhood. Gaffney has attacked Sen. John McCain and then-House Speaker John Boehner for “parroting the Muslim Brotherhood line” and called former GOP Sen. Chuck Hagel an Iranian secret agent.
(10) In 2015, Sessions bragged on his Senate website that he had been chosen as the first recipient of the “Phyllis Schlafly Leadership Award” from Schlafly’s Eagle Forum. Schlafly is most famous for her fight to stop the Equal Rights Amendment, but in her later years she focused on anti-immigrant activism. She urged the Republican Party to focus exclusively on increasing its support among white voters. In one 2013 interview, Schlafly claimed Latino immigrants “don’t understand” the Bill of Rights and don’t “have any Republican inclinations at all” because “they’re running an illegitimacy rate that’s just about the same as the blacks are.” She even called for the banning of foreign players from Major League Baseball. In one 2015 interview, Schlafly said she hoped one day to see “railroad cars full of illegals going south.”
For all these reasons, I am unalterably opposed to the continued enforcement of Civil Asset Forfeiture in the United States.
Sincerely,
Elliott Ozment