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“Something Obscene About Civil Asset Forfeitures”: A Practice That Incentivizes Police To Steal From Law Abiding Citizens

Imagine this:

You get pulled over by police. Maybe they claim you were seven miles over the speed limit, maybe they say you made an improper lane change. Doesn’t matter, because the traffic stop is only a pretext.

Using that pretext, they ask permission to search your car for drugs. You give permission and they search. Or you decline permission, but that doesn’t matter, either. They make you wait until a drug-sniffing canine can be brought to the scene, then tell you the dog has indicated the presence of drugs — and search anyway.

Now imagine that no drugs are turned up, but they do find a large sum of money and demand that you account for it. Maybe you’re going to a car auction out of state, maybe the money is a loan from a relative, maybe you just don’t trust banks. This is yet something else that doesn’t matter. The police insist that this is drug money. They scratch out a handwritten receipt and, without a warrant, without an arrest, maybe without even giving you a ticket for the alleged traffic violation, they drive away with your money.

You want it back? Hire a lawyer. You might be successful — in a year or two. Or you might not. Either way, it’s going to cost you and if the amount in question is too small, getting an attorney might not be practical. Would you spend $5,000 to (maybe) recover $4,000? No. So the police keep your money — your money — and you swallow the loss.

You find that scenario far-fetched? It’s not fetched nearly as far as you think.

Just since 2008, there have been over 55,000 “civil asset forfeitures” for cash and property totaling $3 billion. And for every actual drug dealer thus ensnared, there seems to be someone like Mandrel Stuart, who told the Washington Post last year that he lost his business when police seized $17,550, leaving him no operating funds. Or like Ming Tong Liu, who lost an opportunity to buy a restaurant when police took $75,000 he had raised from relatives for the purchase.

So one is heartened at last week’s announcement from Attorney General Eric Holder that the federal government is largely abandoning the practice.

The civil asset forfeiture has been a weapon in the so-called “War on Drugs” since the Nixon years. Initially conceived as a way to hit big drug cartels in the wallet, it has metastasized into a Kafkaesque nightmare for thousands of ordinary Americans. Indeed, the Post reports the seizures have more than doubled under President Obama.

Now the administration is pulling back. Not that Holder’s announcement ends the practice completely — state and local governments are free to continue it on their own. What ends, or at least is sharply curtailed, is federal involvement, i.e., a program called “equitable sharing,” under which seized property was “adopted” by the feds, meaning the case was handed off to Washington, which took 20 percent off the top, the rest going into the local treasury.

Ask your local law enforcement officials if they will be following Holder’s lead. And if not, why not? Because — and this should go without saying — in a nation with a constitutional guarantee against “unreasonable searches and seizures” there is something obscene about a practice that incentivizes police to, in essence, steal money from law-abiding citizens and leaves said citizens no reasonable recourse for getting it back.

Yet, this is precisely what has gone on for years without notice, much less a peep of protest, from we, the people — proving yet again that we the people will countenance great violence to our basic freedoms in the name of expedience. The insult compounding the injury? The expedience didn’t even work and has had no discernible impact on the use of illegal narcotics. To the contrary that usage has thrived under the “War on Drugs.”

Sadly, the Constitution has done less well.

 

By: Leonard Pitts, Jr., Columnist For The Miami Herald; The National Memo, January 21, 2015

January 24, 2015 Posted by | Eric Holder, Law Enforcement, Police Abuse | , , , , , , | Leave a comment

“3 Enemas Later, Still No Drugs”: Inequality Is Also About Dignity, Humanity And Access To Justice

If you think that protests about overzealous law enforcement are over the top, listen to what unfolded when the police suspected that David Eckert, 54, was hiding drugs in his rectum.

Eckert is a shy junk dealer struggling to get by in Hidalgo County, N.M. He lives a working-class life, drives a 16-year-old pickup and was convicted in 2008 of methamphetamine possession.

Police officers, suspecting he might still be involved in drugs, asked him to step out of his pickup early last year after stopping him for a supposed traffic violation. No drugs or weapons were found on Eckert or in his truck, but a police dog showed interest in the vehicle and an officer wrote that Eckert’s posture was “erect and he kept his legs together.”

That led the police to speculate that he might be hiding drugs internally, so they took him in handcuffs to a nearby hospital emergency room and asked the doctor, Adam Ash, to conduct a forcible search of his rectum. Dr. Ash refused, saying it would be unethical.

“I was pretty sure it was the wrong thing to do,” Dr. Ash told me. “It was not medically indicated.”

Eckert, protesting all the while, says he asked to make a phone call but was told that he had no right to do so because he hadn’t actually been arrested. The police then drove Eckert 50 miles to the emergency room of the Gila Regional Medical Center, where doctors took X-rays of Eckert’s abdomen and performed a rectal examination. No drugs were found, so doctors performed a second rectal exam, again unavailing.

Doctors then gave Eckert an enema and forced him to have a bowel movement in the presence of a nurse and policeman, according to a lawsuit that Eckert filed. When no narcotics were found, a second enema was administered. Then a third.

The police left the privacy curtain open, so that Eckert’s searches were public, the lawsuit says.

After hours of fruitless searches, police and doctors arranged another X-ray and finally anesthetized Eckert and performed a colonoscopy.

“Nothing was found inside of Mr. Eckert,” the police report notes. So after he woke up, he was released — after 13 hours, two rectal exams, three enemas, two X-rays and a colonoscopy.

The hospital ended up billing Eckert $6,000.

When I came across this case, it seemed far-fetched to me — more like rape than law enforcement. But the authorities, hospital and doctors all refused to comment, and, a few days ago, the city and county settled the lawsuit by paying Eckert $1.6 million.

This wasn’t a unique case. A few months earlier, a man named Timothy Young who lives nearby says that police officers pulled him over, forcibly strip-searched him in a parking lot and then took him to a hospital for a forced X-ray and rectal examination while he was handcuffed. Nothing was found, so he was released — only to receive a hospital bill.

And a few weeks before Eckert’s ordeal, a 54-year-old American woman crossing from Mexico into El Paso was strip-searched and taken to the University Medical Center of El Paso. She says in a lawsuit that, over six hours, she was shackled to an examination table and subjected to rectal and vaginal examinations — with the door open to compound her humiliation. After a final X-ray and CT scan, all of which turned up nothing, she was released — and billed for the procedures.

Joseph P. Kennedy, Eckert’s lawyer, notes that such abuses are not random but are disproportionately directed at those on the bottom rungs of society. “It’s a socioeconomic issue,” he said. “It’s the indignities forced on people who are not articulate, not educated and don’t have access to legal services.”

Police are caught in a difficult balancing act, and obviously the abuse of Eckert isn’t representative. But it is emblematic of something much larger in America, a kind of inequality that isn’t economic and that we don’t much talk about.

It’s the kind of inequality that lies behind police stops for “driving while black,” or unequal implementation of stop-and-frisk policies, or “zero tolerance” school discipline codes that lead many low-income children to be suspended.

This inequality has a racial element to it, but it is also about social class (Eckert is white but struggling financially). This is about Americans living in different worlds. If you’re a middle-class reader, you probably see the justice system as protective. If you’re a young man of color, you may see it as threatening.

So as we discuss inequality in America, let’s remember that the divide is measured in more than dollars. It’s also about something as fundamental as our dignity, our humanity and our access to justice; it’s about the right of working stiffs not to endure forced colonoscopies.

By: Nicholas D. Kristof, Op-Ed Columnist, The New York Times, January 25, 2014

January 27, 2014 Posted by | Civil Rights, Inequality | , , , , , | Leave a comment

“Suspicionless Search And Seizure”: The Supreme Court Rules That DNA Is Like A Fingerprint Or Mugshot

In a  5-4 decision, the U.S. Supreme Court has ruled that police have the right to gather DNA evidence without a search warrant after an arrest and before the arrestee has been convicted of a crime. The majority ruled that a cheek swab is no different from taking a fingerprint or a photograph.

Already 26 states collect DNA samples from suspects, a fact that had gone mostly unnoticed until 26-year-old Alonzo King was arrested in Maryland for second-degree assault in 2009. Maryland authorities took a DNA swab from King while he was in custody, and after running it through the state’s and the FBI’s databases, they found that it matched DNA from an unsolved rape committed in 2003.

The U.S. Supreme Court’s decision on Monday reversed a 2012 Court of Appeals decision in which Maryland’s highest court ruled in King’s favor, stating that the DNA swab was used for investigative purposes after his arrest—this was in direct violation of his Fourth Amendment rights, as he had not been convicted of any crime and was still presumed innocent.

Groups including DNA Saves have been advocating for the DNA swabbing of arrestees as a means to close unsolved cases, citing statistics that most crimes are committed by repeat offenders.

Justice Anthony Kennedy was among the five Justices who voted to reverse Maryland’s decision. “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure,” Kennedy wrote. “Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined Justice Antonin Scalia in his written opposition to the court’s decision. His dissent began, “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incrimi­nating evidence. That prohibition is categorical and with­out exception; it lies at the very heart of the Fourth Amendment.”

Scalia’s defense of the Fourth Amendment continued in his scathing dissent: “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the pro­tection of our people from suspicionless law-enforcement searches.”

The dissenting Justices warned of likening DNA sampling to fingerprinting and taking photographs. They aimed to differentiate between methods of identifying and investigating an individual after their arrest and before a trial.

New technologies are increasingly presenting privacy challenges that complicate the typical conservative/liberal alliances on the Court.

USA Today reports, “Last year, they held that police could not attach a GPS tracking device to a car in order to monitor a suspect’s movements. This year, they ruled that using a drug-sniffing dog with reasonable suspicion was OK — but not at the door of a private home. And they decided that executing a search warrant after a suspect had left his home was out of bounds.”

Of course the major difference between last year’s decisions and the one the Supreme Court reached today is that DNA swabs may be used by authorities to implicate an arrestee in crimes for which they have no warrant or reasonable suspicion. In this way, the majority found, a DNA swab is similar to the procedural tasks of taking a fingerprint or a mugshot.

The minority warned of the broader implications of the decision.

“Make no mistake about it: Because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia wrote in his dissent. “This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane.”

By: Allison Brito, June 3, 2013

June 5, 2013 Posted by | Civil Rights, Supreme Court | , , , , , , , | Leave a comment

   

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