Pubdate: Sun, 6 Jun 1999
Source: Orange County Register (CA)
Copyright: 1999 The Orange County Register
Contact:  http://www.ocregister.com/
Section: Commentary, page 5
Author: Joseph McNamara
Note: Mr. McNamara, retired police chief of San Jose, is a research fellow
at the Hoover Institution at Stanford University.
And: May we add, a MAP Newshawk.

WHEN POLICE TAKE PROPERTY, WHO DO YOU CALL?

When someone takes your property without permission for their own use, you
call the police. Who do you call when the police. Who do you call when the
police take your property for their own use? The implications of that
question have thrown bitter opponents of the House impeachment hearings
together in a surprising alliance to prevent some of the worst government
civil asset-forfeiture practices.

Republican Reps. Henry Hyde and Bob Barr have been joined by Democrats
Barney Frank and John Conyers in co-sponsoring HR 1658, a bill that will
better protect individuals and businesses from having their property
arbitrarily confiscated and given to the law enforcement agencies that
seized it.

The union of conservatives and liberals came about because police
organizations have become addicted to grabbing property. I don't mean to
attack the police. As police chief of San Jose during the 1980s, I was one
of the worst addicts.

A stagnant economy had squeezed taxes. San Jose had the lowest per-capita
police staffing in the nation. We needed more cops. I was interested in all
the seizure money we could get. That is what makes reform so necessary.

A case in point: One day my boss, the city manager, sent me his proposed
annual budget for the police department. San Jose was the 11th largest city
in America, but no funds were earmarked for police equipment. When I
brought this to the city manager's attention, he dismissively said, "You
guys seized $4 million last year. I expect you to do better this year." My
officers and I understood that if the $4 million didn't come from seizures,
the equipment would be purchased from city general funds reducing the
amount available for salary increases and overtime.

That is why the reform bill will face strong opposition from many in law
enforcement. Even police chiefs who deplore the inherent conflict of
interest in police seizures will hesitate to speak in favor of reform.
Doing so will make them a target of their bosses in city hall and police
unions interested in seeing ample funds being available for police overtime.

Some cops will argue that dope traffickers shouldn't get to keep the
profits. That sounds good, but in around 80 percent of the seizure cases no
one is even charged with a crime. Because it is a civil proceeding, the
property owner does not enjoy the presumption of innocence. If the police
have probable cause to believe that the property facilitated a crime, they
may seize it without a warrant. Then it is up to the owner to prove
innocence. This is not only difficult, but also beyond the means of most
property owners because the government rarely nails big drug cartel
members. Most of the seizures are for small amounts, and many times lack of
knowledge of the underlying crime is not accepted as a defense.

In a Michigan case, a woman unsuccessfully tried to recover her car after
it was seized with a prostitute. In an earlier case, the court upheld the
forfeiture of a yacht by a leasing company after customs agents found a
marijuana cigarette.

I heard an innocent woman describe how seizure had destroyed her business.
She received and shipped a number of packages every day. Without her
knowledge, her son had ordered marijuana from what turned out to be a
police sting operation. Even though she never opened the disguised
marijuana package and was never prosecuted, agents took her property,
including her computer data bank. Without her records she was out of business.

During my rookie days in New York's Harlem, my sergeant told me he expected
me to issue five traffic citations for moving violations. According to law
enforcement principles, of course, traffic citations for driving as
seizures are only to help win the drug war. But when cops are put under
pressure to produce good statistics and revenue, bad things happen. Any
number of motorists fall victim to petty enforcement and their resentment
of arbitrary policing undoubtedly leads to diminished cooperation in
reporting crime and cooperating with police investigations.

The negative impact of police seizure efforts is far more severe for both
the police and public than questionable traffic tickets. Each year, a
number of police officers are shot during dangerous drug raids. Innocent
citizens suffer as well. The police understandably who usually have
powerful firearms handy to protect them from robbers. So at 4 or 5 a.m.,
while people are sleeping, the police smash through doors, yelling and
screaming and exploding stun and smoke grenades.

An elderly African-American minister in Boston though he was being robbed
and struggled with the police. He died of a heart attack. Only afterward
did the police realize that they had gone to the wrong address.

In California, a law enforcement task force obtained a search warrant after
an officer swore under oath that a federal agent had told him that he
observed marijuana being grown on a ranch he flew over in a helicopter.
During the subsequent raid, the rancher apparently thought he and his wife
were being assaulted by criminals. When he displayed a firearm, he was shot
to death. No drugs were found. The DEA agent cited in the warrant later
testified that he had not said he saw marijuana growing, rather, that it
was the kind of place where marijuana could be grown. The county prosecutor
stated that he believed that the various police agencies involved had been
motivated by their greed to seize the ranch to enhance their budgets.

The police can usually avoid dangerous raids by arresting the drug
trafficker in some other location. Sometimes, however, the desire to seize
money or property at the suspected location will be put ahead of safety.

Although billions of dollars have been seized and distributed to police
agencies, drugs are more plentiful, more pure and cheaper than ever. Drug
use has not declined among hard-core users and is increasing among
youngsters. Overdose deaths have increased and the number of people
mentioning drug use during emergency room treatment has increased. Police
and government drug corruption are as bad or worse, and too many
neighborhoods are drug battlegrounds.

Arguments against reform of civil seizure should be defeated. Seizure
reform will help protect Fourth Amendment rights against unreasonable
searches and Fifth Amendment rights of due process in the government taking
of property.

In a free society, the police should never be compelled to, or allowed to,
view their law enforcement duties as a means of raising revenue for
government.
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MAP posted-by: Richard Lake