Pubdate: Sat, 8 May 1999 Source: Arizona Republic (AZ) Copyright: 1999, The Arizona Republic. Contact: http://www.azcentral.com/news/ Forum: http://www.azcentral.com/pni-bin/WebX?azc CIVIL FORFEITURE LAWS IN DESPERATE NEED OF CHANGE Like most Americans, I breathe a sigh of relief when I return to U.S. soil after a foreign trip. Abroad, many of us fear that some tinpot foreign bureaucrat may seize us or our possessions, whether we've done anything wrong or not. As it turns out, there's not much a self-respecting foreign despot will do to violate your property rights that your own government won't. Most of us assume the government can't take property as a sanction unless you've been convicted of a crime - beyond a reasonable doubt - by a jury of your peers. Most of us are wrong. Numerous federal laws - most prominently drug laws - allow some 100 agencies to seize personal property and land when the feds claim to have "probable cause" that property itself was used in, or "facilitated," an illegal transaction. After that, you have to prove you're innocent. Many states, Arizona included, have similar civil forfeiture provisions. New York City's decision to seize the cars of alleged drunk drivers - and to keep them even if the drivers are later acquitted - is just the latest outrage. Under these civil forfeiture laws, it is not necessary for the property owner to be convicted or even charged with a crime. For instance, you could lose your house if your teenager used or sold drugs there, even without your knowledge or consent. It's a great scam for the government, which knows few people will hire a lawyer to try to prove a negative. The feds routinely assert that probable cause is demonstrated by the flimsiest of facts, like being well-dressed and paying cash for an airline ticket. According to the government, probable cause that an airline passenger is a drug courier may be shown by the fact that he exits the plane at the front (he's nervous), in the middle (he's trying to blend in), or the back (he's trying to appear casual). Picture Karl Malden on TV, telling us to carry traveler's checks so the Drug Enforcement Agency can't take our cash. As Supreme Court Justice Clarence Thomas noted in a recent forfeiture case, the average American "might well assume that such a scheme is lawless - a violation of due process." Unfortunately, as Justice Thomas added, gripping a soda can, the modest constitutional protections are "ultimately a reminder that the federal Constitution does not prohibit everything that is intensely undesirable." (OK, that part about the soda can was made up.) The horror stories, though, are deadly serious: * Innocent Florida salesman Richard Apfelbaum, flying to Las Vegas with $9,640 in gambling money, had his cash seized by the DEA on the theory that such a large sum must be related to illegal drug activity. After posting the required 10 percent bond and spending $2,000 in attorney's fees trying to get his money returned, Apfelbaum gave up, noting ruefully, "I'm not in a position to spend $10,000 in legal fees trying to get $9,000 back." * During a futile drug raid, Los Angeles County deputies shot and killed Donald Scott, the owner of a $5 million mountain ranch long coveted by the Park Service. The Ventura County Attorney later found that the raid was motivated by the desire to forfeit the ranch. The raiding party included Park Service officers and two asset forfeiture specialists carrying appraisal information. * A California man traveling overseas had to go to the Supreme Court to get back $357,144 seized by customs officials. The cash was not tied to any crime and was legal to take out of the country, but the man had failed to report the transaction. Noting the maximum criminal penalty for the offense was $5,000, the court overturned the seizure for being "grossly disproportionate" to the man's conduct. * The owners of numerous Phoenix convenience stores face the prospect of their stores being forfeited, based upon the alleged sale of excessive quantities of cold medicine to officers posing as methamphetamine "cooks" seeking raw materials. Since the stores merely sold legal products, the Superior Court has dismissed criminal charges, but the forfeiture threat remains. The original concept that drug lords should be deprived of their ill- gotten planes and yachts was a sound one. But civil forfeiture has become, as Justice Thomas says, a "roulette wheel employed to raise revenue from innocent but hapless owners." The federal government has been collecting $350 million to $550 million a year spinning that roulette wheel, with cooperating states and municipalities enjoying about half the take. Rep. Henry Hyde has reported that 80 percent of civil forfeitures involve people never charged with a crime. The Justice Department claims the figure is closer to 50 percent - as if that's acceptable. Only Congress can revoke this license to steal. The last reform effort fell short despite backing by groups ranging from the National Rifle Association to the American Civil Liberties Union. If this Congress doesn't fix it, the roulette wheel may stop on your number next. - --- MAP posted-by: Don Beck