Editorial: Forfeiture of property should be tied to a conviction

A couple of weeks ago we editorially bemoaned the fact that no one had introduced a bill in the state Legislature to restrict the practice of law enforcement agencies seizing private property — homes, cars, cash and such — under the presumption it is the product of criminal activity, but without ever having to actually go through the due process of convicting someone of a crime — a process called civil asset forfeiture.

That same week state Sen. Don Gustavson of Sparks filed Senate Bill 358 that would require proof of a criminal conviction, a plea agreement or an agreement by the parties concerned before property could be forfeited.

Humboldt deputy seized cash

The bill is almost identical to a bill Gustavson and James Settelmeyer of Minden sponsored during the 2015 legislative session. By the time that bill came out the legislative sausage grinder it merely required police agencies to report their confiscations to the state. As the law currently reads, property may be confiscated and kept or sold without the property’s owner ever being convicted or even charged with a criminal offense.

Though the Fifth Amendment provides: “No person shall be … deprived of life, liberty, or property, without due process of law …” police agencies in cooperation with federal law enforcement have for years coerced people into surrendering assets that become the property of the agency — a perverse incentive indeed.

Gustavson’s bill “provides that property is subject to forfeiture only if the underlying crime provides  for such forfeiture, and there is: (1) proof of a criminal conviction; (2) a plea agreement; or (3) an agreement by the parties.” It also “requires the State to establish that seized property is forfeitable by clear and convincing evidence.”

Gustavson testified before the Senate Judiciary Committee this past week, “Under current civil forfeiture laws, law enforcement can seize your cash or other property, sell and then use most of the proceeds however they see fit, even though you are never arrested or even charged with a crime. Passage of Senate Bill 358 does not limit law enforcement’s ability to combat drug cartels and other criminal activity. The intent of this legislation is to protect the innocent individual’s liberty and property right and to keep law abiding citizens from becoming entangled in the process that results in their rights being trampled. An innocent tourist driving back to Utah after winning a $1,000 jackpot at a local casino can have his money confiscated though he or she has not been accused of any crime.”

Lee McGrath, legislative counsel for the Institute for Justice, which has advocated civil asset forfeiture law reform for years, also testified. He said law enforcement has the power to take the fruits of criminal activity but that it should be done via criminal forfeiture rather than civil forfeiture.

“The appropriate process that is due is criminal forfeiture,” McGrath said. “It makes sense to charge, arrest and convict the suspect of a crime. If convicted in the same courtroom, the same judge can turn to the question, and it should be an easy question, of whether the cash, whether the vehicle are the proceeds and the instruments of a crime.”

The attorney general’s office, various law enforcement officials and district attorneys testified against the bill, saying the current system is not abused, though others testified to the contrary.

There is a case pending in the courts in which Texas police seized $200,000 in cash, claiming it was the profits of illegal drug trade, though the owners said it was from a the sale of a house. The bill of sale was with the cash. No one was ever convicted of any crime and the police still have the money.

Justice Clarence Thomas wrote a six-page commentary on the Texas case sighting the evils of civil asset forfeiture, “These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. … Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.”

Nevada has its own record of suspect civil asset forfeiture cases. Over a two-year period Humboldt County deputies seized $180,000 in cash from motorists.

Some states have passed laws similar to the one being advocated by Gustavson to curb the extortionate practice by police by requiring an actual criminal conviction before assets may be taken. This bill is needed to protect citizens and assure due process.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: Nevada lawmakers must put a stop to civil asset forfeitures prior to conviction

The whole concept of civil asset forfeiture turns the law on its head, essentially finding people guilty until they can prove their innocence.

Police departments and federal agencies across the country have been using civil procedures to seize cash, cars and homes that just might be somehow, maybe linked to a crime.

In Humboldt County here in Nevada a county deputy seized $50,000 from a California tourist who said he’d won it at a casino. The deputy claimed he might be a drug dealer.

According to a recording from a dashboard-mounted camera in the patrol car, the tourist asked why he was being searched, and the deputy replied, “Because I’m talking to you … well, no, I don’t have to explain that to you. I’m not going to explain that to you, but I am gonna put my drug dog on that. If my dog alerts, I’m seizing the money. You can try to get it back but you’re not.”

He also told the tourist, “You’ll burn it up in attorney fees before we give it back to you.”

Over a two-year period Humboldt deputies seized $180,000 in cash from motorists, some of them got their money back after fighting the seizure in court.

Deputy seized cash from motorist.

The Nevada Attorney General’s office reportedly is investigating the county’s highway interdiction program, which smacks of highway robbery to us. The county’s new sheriff, who took office in January, has placed the deputy quoted above on paid leave pending an investigation.

In another Nevada case, the U.S. attorney’s office in Las Vegas demanded a local woman forfeit the $76,667 in salary she earned while running the office of her brother, who was later convicted of mortgage fraud.

U.S. District Judge Roger Hunt called the federal forfeiture effort against Jenna Depue “the most egregious miscarriage of justice I have experienced in more than twenty years on the bench. I refuse to be a party to it.”

Recently, New Mexico lawmakers passed a bill essentially ending most civil asset forfeitures in that state until someone is convicted of a crime. It also would not let police agencies keep the proceeds of a seizure and instead channels it into the state general fund, thus ending an incentive for police to use seizures to raise money.

In Carson City, Republican state Sens. Don Gustavson of Sparks and James Settelmeyer of Minden have sponsored Senate Bill 138, which is similar to the one in New Mexico. It also requires a conviction prior to seizure and states that any money left over after expenses are covered goes to the state general fund. The bill also mandates annual reports to the state on civil asset forfeitures.

The Fifth Amendment provides that “No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

But too often police intimidate people by basically extorting waivers of due process rights. In the case of the tourist in Humboldt, he was threatened with having his car impounded, too.

The Institute for Justice has been fighting civil asset forfeiture in the courts and on op-ed pages of newspapers for years. President and General Counsel Chip Mellor of IJ once said: “The Institute for Justice has documented time and again that civil forfeiture invites a lack of accountability, a lack of due process and a lack of restraints on government authority. Civil forfeiture needs to end. If the government wants to take someone’s property, it should first be required to convict that person of a crime.”

In a 73-page article published in the Nevada Law Journal, David Pimentel, a law professor at Florida Coastal School of Law, laid out the case against civil forfeiture.

“Given the dubious policies behind facilitating property forfeitures, and the due process problems inherent in carrying them out, the more potent question is whether facilitating property forfeitures should be allowed at all,” writes Pimentel. “If the taking of such property is to be justified, or even tolerated, it must be for the most compelling public policy purposes, none of which can be demonstrated for facilitating property forfeitures.”

Let’s hope SB138 breezes through the legislative process and the governor signs it into law.

A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.

Newspaper column: Time to end warrantless searches and seizures

Civil asset forfeiture has turned into a fundraising scam for federal and local law enforcement agencies, who use the excuse that seized cash, cars and homes are the product of suspected criminal endeavors and thus forfeitable to the government, usually the agency doing the seizing.

It is happening in jurisdictions all across the nation and here in Nevada. A year ago a deputy in Humboldt County pulled over a California tourist in a rental car and grabbed $50,000 in cash that the tourist said he won in a casino, as reported in this week’s newspaper column, available online at The Ely Times and Elko Daily Free Press.

The day after that tourist’s money was seized, Humboldt County Sheriff Ed Kilgore sent out a news release along with a photo of the deputy posing with the cash and a police dog. “This cash would have been used to purchase illegal drugs and now will benefit Humboldt County with training and equipment,” the release boasted. “Great job.”

Deputy seized tourist’s cash.

According to a recording from a dashboard-mounted camera in the patrol car, the tourist asked why he was being searched, and the deputy replied, “Because I’m talking to you … well, no, I don’t have to explain that to you. I’m not going to explain that to you, but I am gonna put my drug dog on that. If my dog alerts, I’m seizing the money. You can try to get it back but you’re not.”

He also told the tourist, “You’ll burn it up in attorney fees before we give it back to you.”

The tourist sued and eventually got his cash back.

A couple of months later another man had cash seized by the same deputy.

And you thought the Fourth Amendment guaranteed: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In Philadelphia, the Institute for Justice, a nonprofit civil liberties law firm, has taken the police to court to try stop what one judge called state-sanctioned theft.

IJ has three clients, all of whom had their homes seized by police. In each case the police claim the property was used to commit minor drug crimes, none of which involved the actual owners.

“The class-action lawsuit challenges several aspects of Philadelphia’s forfeiture scheme. First, Philadelphia routinely seeks orders authorizing its officials to ‘seize and seal’ homes and other real properties — which they accomplish by throwing people, like Chris Sourovelis and their families, out onto the streets,” IJ reports. “But the city does not provide the families with any notice when it seeks such an order, and the homeowners never get a chance to argue why they should not be evicted before they are thrown out.”

A bill has been introduced in Congress to reform the civil forfeiture law.

Read the entire column Ely or Elko.

It is long past time to reinstate the Fourth Amendment guarantee to be free of warrantless searches and seizures

Civil asset forfeiture has turned into a fundraising scam for federal and local law enforcement agencies, who use the excuse that seized cash, cars and homes are the product of suspected criminal endeavors and thus forfeitable to the government, usually the agency doing the seizing.

It is happening in jurisdictions all across the nation and here in Nevada. A year ago a deputy in Humboldt County pulled over a California tourist in a rental car and grabbed $50,000 in cash that the tourist said he won in a casino. The tourist sued and eventually got his cash back.

Deputy with K-9 and $50,000 in seized cash.

The day after that tourist’s money was seized, Humboldt County Sheriff Ed Kilgore sent out a news release along with a photo of the deputy posing with the cash and a police dog. “This cash would have been used to purchase illegal drugs and now will benefit Humboldt County with training and equipment,” the release boasted. “Great job.”

According to a dashcam recording, the tourist asked what reason he was being searched, and the deputy replied, “Because I’m talking to you … well, no, I don’t have to explain that to you. I’m not going to explain that to you, but I am gonna put my drug dog on that (pointing to money). If my dog alerts, I’m seizing the money. You can try to get it back but you’re not.”

He also told the tourist, “You’ll burn it up in attorney fees before we give it back to you.”

A couple of months later another man had cash seized by the same deputy.

In Texas a couple of years ago police seized cash from a couple who said they were to use it to buy a car at their destination.

In Massachusetts a motel was seized because drugs had taken place there, though the owners were in no way involved.

In Philadelphia a couple’s home was seized because, unbeknownst to them, their son sold a small quantity of drugs on the front porch.

And you thought the Fourth Amendment guaranteed:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Oh, but it is not a criminal case. No one need ever be arrested. The money and property are the guilty parties until proven innocent, if that is ever possible.

According to a recent Investor’s Business Daily editorial, the Justice Department’s forfeiture fund has gone from $94 million in 1986 to more than $1 billion today.

In Philadelphia, the Institute for Justice, a nonprofit civil liberties law firm, has taken the police to court to try to stop what one judge called state-sanctioned theft.

IJ has three clients, all of whom had their homes seized by police. In each case the police claim the property was used to commit minor drug crimes, none of which involve the actual owners.

“The class-action lawsuit challenges several aspects of Philadelphia’s forfeiture scheme. First, Philadelphia routinely seeks orders authorizing its officials to ‘seize and seal’ homes and other real properties — which they accomplish by throwing people, like Chris Sourovelis and their families, out onto the streets,” IJ reports. “But the city does not provide the families with any notice when it seeks such an order, and the homeowners never get a chance to argue why they should not be evicted before they are thrown out.”

A bill also has been introduced in Congress to reform the law.

The Nevada Legislature should take this matter into its own hands and create a law that prohibits the seizure of private property without proper warrants and reasonable cause. Nevadans should not be forced to hire expensive lawyers and spend years in the courts to prove their property is innocent. It is a matter of due process.

Newspaper carries on Twain’s practice of just ‘Roughing It’ when it comes to the facts

For want of an editor the facts were mangled.

Down a few paragraphs in a 2B Review-Journal story today highlighting Pershing County and the state’s sesquicentennial is this highly appropriate passing reference to the founding father of Nevada’s notoriously capricious practice of journalism:

“Mark Twain found the living conditions worthwhile. He lived in a cabin in Unionville, formerly the county seat of Humboldt County before Pershing was established.

“It was there he penned his novel ‘Roughing It,’ a book about his travels through the rough and wild West.”

First, one, including Twain, who in 1861 while in Unionville still used his given name of Samuel Clemens, would hardly call the living conditions in Unionville worthwhile. “We built a small, rude cabin in the side of the crevice and roofed it with canvas, leaving a corner open to serve as a chimney, through which the cattle used to tumble occasionally, at night, and mash our furniture and interrupt our sleep,” Twain wrote in “Roughing It” 10 years later, while living in New England, a comfortable distance away in space and time. “It was very cold weather and fuel was scarce. Indians brought brush and bushes several miles on their backs; and when we could catch a laden Indian it was well — and when we could not (which was the rule, not the exception), we shivered and bore it.”

And those pebbles Clemens took for gold, they were “nothing but a lot of granite rubbish and nasty glittering mica that isn’t worth ten cents an acre!” Hardly worthwhile.

The book, published in 1872, was intended to capitalize on the success of “Innocents Abroad,” his humorously dyspeptic account of his travels across Europe and the Holy Land, and serve as a prequel, highlighting his earlier travels in Nevada and California. Though the book clearly contains more than a few embellishments and probable fabrications, most libraries still shelve it under nonfiction and not fiction.

Clemens did not adopt the pen name of Twain until 1863, when he covered the territorial legislature for the Territorial Enterprise in Virginia City.

This is supposed to be Mark Twain’s Unionville cabin, though that is not a canvas roof.

I still prefer to believe one biographer’s account of how Clemens derived his pseudonym rather than the version he stuck to throughout his life. This is how one newspaper account related it:

“According to Twain biographer Andrew Hoffman, Twain told people he took up the pseudonym after Capt. Isaiah Sellers died and no longer needed it for his own byline in the New Orleans newspapers. Among the problems with that story, according to Hoffman in ‘Inventing Mark Twain: The Lives of Samuel Langhorne Clemens,’ are that Sellers did not die until months after Clemens started using the byline, and no one can find the name being used in any newspaper prior to those Enterprise dispatches.

“Because newspapering is parching work for penurious pay, a more Nevada centric and less clean-cut explanation might be closer to the truth, which Twain was seldom averse to stretching.

“‘People who knew Sam in Nevada said that he arrived at the pseudonym by entering a saloon and calling out in the leadsman’s singsong intonation ‘Mark twain!’ — meaning the bartender should pour two drinks and mark them down on the debit ledger,’ writes Hoffman.”