Pubdate: Tue, 11 Apr 2000
Source: Orlando Sentinel (FL)
Website: http://www.orlandosentinel.com/
Address: 633 N.Orange Ave., Orlando, FL 32801
Contact:  2000 Orlando Sentinel
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Author: William E. Gibson and Lisa J. Huriash, Washington Bureau
Bookmark: Shortcut to Asset Forfeiture items: http://www.mapinc.org/af.htm

DRUG LAW MAY BE NARROWED

In the heat of the war on drugs during the past decade, government
confiscation of houses, boats, land, cars and cash worth billions of dollars
has brought a surge of resources to law enforcement, most dramatically in
Florida.

At the same time, aggressive use of the loose federal-forfeiture law has
produced horror stories about police seizing property from innocent owners
without clear evidence that it was ever connected to a crime.

Police in some cases have taken cash from airline passengers who were never
charged, seized land from owners never suspected and confiscated boats, cars
and houses from many who were accused but never convicted.

Now Congress is about to change drastically federal civil forfeiture law, a
major reform that alarms some police groups.

Hoping to curb what many legal experts see as widespread governmental abuse,
the House later today is expected to approve a bill already passed by the
Senate that would put the burden of proof on the government, not the
property owner, to show that confiscated goods were used as part of a crime.

"It seems to me almost a Soviet-style rule that says you have to prove your
property wasn't involved in a crime once the government confiscates it,"
Chairman Henry Hyde of the House Judiciary Committee said in an interview
Monday. "It just turns legal due process on its head.

"I was flabbergasted to know some of the horror stories involved," said
Hyde, R-Ill., who has led the reform effort for seven years.

"Some were mind-boggling. Some poor guy has a yacht off the coast of
Florida, drug agents descend on him, chop it up, don't find any drugs and
then blithely sail away, leaving the yacht in a shambles. I know of
incidents where this sort of thing occurred all over the country."

But some police groups warn against any change that would curb their
efforts.

"Forfeiture is one of our most powerful weapons in the war against drugs,"
said Police Chief Jerry Blough, president of the Broward County Chiefs of
Police Association. "It allows us the ability to deprive drug dealers of the
proceeds of their illegal activity or the instruments used to commit the
crimes."

Despite such objections, the bill is on a clear path to becoming law.

The Justice Department, after negotiations with House and Senate leaders,
has endorsed a compromise bill, a clear signal that President Clinton would
sign it into law.

"You can't overestimate the significance of this legislation, the first real
reform of civil forfeiture laws since the beginning of the country," said
David B. Smith, a former federal prosecutor who wrote the book Prosecution
and Defense of Forfeiture Cases.

Smith said that back in the 1980s, when police were encouraged to go after
the assets of drug kingpins, "Nobody ever dreamed it would get so far out of
hand."

The nation was awash in drugs, cocaine was cheap and Nancy Reagan was
pushing her "Just Say No to Drugs" crusade when Smith helped set up the
Justice Department's asset-forfeiture office in 1984.

Congress that year handed police a powerful tool: a law that turned
forfeited assets over to law enforcement, the proceeds to be divvied up
among federal, state and local agencies. Until then, proceeds had quietly
trickled into Uncle Sam's general revenue fund.

This powerful incentive came without changing forfeiture law itself, which
is derived from British and colonial law. As it has evolved, the law allows
the government to seize property by showing nothing more than "probable
cause" that it might he connected to a crime, the same standard used for
conducting a search.

Federal civil forfeitures soared in value from $2 million in 1980 to $27
million in 1985 to $644 million in 1991 to $957 million last year, according
to the Senate Judiciary Committee.

Under the law, a property owner must appeal seizures within tight time
limits, post a bond of $5,000 or 10 percent of the value of the property and
prove a negative: that the asset was not used in a crime.

The bill that passed the Senate last month and likely will pass the House
today would extend the time for an appeal and remove the bond requirement.
Most importantly, the compromise worked out in Washington would require the
government to show a "clear preponderance of evidence" that the property was
used in a crime.

But from the standpoint of many police, the current forfeiture law should
not be restrained.

To show what federal forfeiture can do, the Broward County Sheriff's Office
points proudly to two new beach buggies, purchased with federal forfeiture
dollars, that help officers roam the waterfront along Pompano Beach to spot
criminal activity.

District Capt. Robert Weimer said deputies need the vehicles to maneuver
where cars can't go: on sand, behind condominiums and in crowded special
events.

The Pompano district spent $12,627 for the two buggies, plus $1,790 for two
trailers to haul them. The district spent another $1,000 for lights and
striping, and in January it bought five traffic-control devices that show
how fast cars are traveling for $63,850 from its share of forfeited assets.

Those intent on changing the law say they have no desire to hinder police,
but they want to fend off overweening forfeitures that deny legal due
process to the innocent and the suspect alike. They point to more than a few
examples.

Before he died of cancer in 1990, George Gerhardt of Fort Lauderdale used to
tell people he hated illegal drugs. So there was a special irony when soon
after his death, federal marshals seized the Gerhardt home.

A confidential prison informant had told authorities that Gerhardt once said
he had received $10,000 to allow a boat to unload drugs at the house, said
Susan Davis, an accountant who represents the estate.

"In short, an unnamed person in prison told an unnamed government agent that
an unnamed vessel was used by unnamed persons to offload cocaine at the home
of the decedent, George Gerhardt, on an unspecified date in December 1988,"
she testified before the House Judiciary Committee in 1997.

"Had Mr. Gerhardt been alive," she said, "he would have been evicted from
his home, as his beneficiary later was."
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