Yesterday I received my weekly (sometimes daily) email
from our friends at Everytown asking me to give them some bucks. If it weren’t
for the fact that a gun-nut friend of mine wants to sell me his Smith &
Wesson Model 41 for $700, I’d respond positively to Everytown’s solicitation
today. But I’ll get another email from Mayor Mike tomorrow. I won’t see another
Model 41 out there for $700 bucks, okay?
What caught my eye in the Everytown email was not the
request for dough, I will send them something soon. It was this statement which
sums up the Everytown analysis of the election results in 2018: “For the first time, it’s clear that across the country gun safety is a
winning issue.” Which happens to be what every Gun-control Nation organization
is saying about the mid-terms, by the way.
either side in the great gun debate makes a claim, I try to verify the
statement before I accept it as being true; I’m just a contrarian when it comes
to noise made by advocates on either side . Take a look, if you will, at the
House races where major donations
from Bloomberg helped Democratic candidates grab the brass ring. Of the 44 seats which will now be occupied by
Democrats and were either GOP seats
or vacant last year, 19 of those races evidently turned on major cash infusions
from Bloomberg, either monies he directly gave those campaigns or money which
he gave to other outside organizations which then used the dough to bolster
those same campaigns. These campaigns also received money from the Everytown
PAC, so we can assume that for these contests, the gun issue was a ‘winning
issue,’ correct? The answer: yes and no.
Virginia’s 2nd CD, a pro-gun Democrat, Elaine Luria, beat out a ‘pro-gun’
incumbent. In Virginia’s 10th CD, the defeat of Barbara Comstock had
nothing to do with the gun issue at all. In both of these races, the issue was
Trump. In New Jersey’s 11th CD, an open seat, Mikie Sherrill won an
open seat against her GOP in a race
where guns meant nothing to either side. Take a look at the issues
in Pennsylvania’s 6th CD, guns aren’t mentioned by either side. And
even in a race where the blue candidate, Jason Crow, touted his gun-control
bone fides against NRA stooge Mike
Coffman, the loser was against an assault weapons ban but he supported a
red-flag law, too.
one race where guns were certainly front and center was Georgia’s 6th
CD, where the incumbent Republican, Karen Handel, lost her seat to a first-time
Congressional hopeful, Lucy McBath. What created the noise in this race was the
fact that McBath has been a spokeswoman for Everytown, following her son’s
shooting death in 2012.
I saying that gun-control issues didn’t make a difference? No. Am I saying that
the energy and determination of Gun-control Nation didn’t outdo the efforts of
the other side? No. Am I saying that the NRA’s
lack of fungible cash wasn’t a factor in how the mid-terms turned out? No.
I am saying, however, is that the gun issue, in and of itself, just doesn’t
explain how most electoral contests turn out.
The CNN exit polls for House
races found that support for stricter gun laws ran 59% in favor, 37% opposed.
But 76% of Democratic voters favored stricter laws, while 76% of Republican
voters were opposed. The Parkland kids generated lots of media attention, but
if you’re a Democratic candidate, you’re in favor of expanded background checks.
If you’re a Republican, you’re not.
my GVP friends need to remember is
that while NRA political
contributions went down the drain in 2018, lobbying
expenditures slipped from the previous year but were $1 million higher than
2016. Wishful thinking about the demise
of the NRA to the contrary, the balance sheet of America’s ‘first civil rights
organization’ shows them $26 million in the black.
Want to reduce gun violence? Maybe the fight’s just begun.
For all the talk about how the liberal media tries to
present a balanced view on issues that provoke public debate, a column by Andrew
Ross Sorkin goes so far beyond what should be the proper boundaries for
defining discussions about gun violence that The New York Times should be ashamed of themselves for
running it earlier this week.
I am referring to Sorkin’s claim that he found a pattern
running through the preparations made by people who committed mass shootings,
the pattern being that they used credit cards to make large and expensive purchases
of guns and ammunition which would not have been possible had these guys been forced
to use cash.
Sorkin reviews documentation from various mass shootings,
including The Pulse and Aurora, where it appears that both shooters, Mateen and
Holmes, may have secured credit cards for the express purpose of stocking up on
large amounts of ammunition and multiple guns, which were then used in both
That’s fine as far as it goes. But Sorkin then steps
across the line, actually leaps across the line, by talking in very positive
terms about how easy it would be for banks and credit card underwriters to
track such purchases and alert law-enforcement authorities if and when someone’s
credit card account suddenly shows all kinds of buying activity involving
ammunition and guns. Sorkin claims it would be a simple process for financial
institutions to create and administer the same kind of data-crunching systems
which they currently use to track fraud, money-laundering or terrorism.
such a scheme would require merchants who take credit card payments to identify
the type of object being purchased, which is almost always found in the item’s
SKU, which is that bar-code on the package which tells a merchant how to adjust
inventory levels after every sale. All we would need to do is create a specific
SKU for guns or ammunition that would be reported to the credit card
underwriter and then flow directly to the cops.
that we would give the police any information about our buying habits except
when we make an illegal purchase, simply blows my mind. If this isn’t the most
egregious violation of just about every, Constitutional protection we have, I
don’t know what is. And while Sorkin
spends two paragraphs on the civil liberties issue with the requisite comment
from the ACLU, he doesn’t seem overly concerned about the loss of privacy where
guns are concerned. If he knew anything about the gun industry (and when was the
last time that any of the self-appointed ‘experts’ who write about guns for
media outlets like The New York Times knew anything about the gun industry?) he
would realize that the system for spotting people who purchase large numbers of
weapons in short periods of time is already in place.
system is called FBI-NICS, and while the FBI is supposed to destroy data generated
by all background checks within 24 hours, duhhh, they don’t. And there is no
statute which prevents the FBI from alerting ATF if a background check with the
same personal identifiers shows up multiple times on the same day.
guarantee you that if Sorkin had written an article about why we need to track
purchases of any consumer item except guns, there would have been an enormous geschrei from every civil libertarian around. But giving the cops an unfettered look into
the most personal habits and behavior of every American who owns guns because,
after all, that’s how we will prevent what happened at Aurora and Sandy
Hook? Is he serious?
Omar Mateen walked into the Pulse and shot the place up, the record for the
highest number of shooting casualties was held by Seung-Hui Cho, set at
Virginia Tech. Between the pistol, the extra mags and the ammunition, the
rampage that cost the lives of 32 faculty and students cost him less than $500
wouldn’t have happened if VISA had sent a ding to the cops after Cho bought his
Glock? Give me a break.
The town of Northampton, MA has always been a center of
racial, gender and cultural diversity; hence, it’s no surprise that the town
is, apolitically speaking, about as liberal as you can get. Their liberalism was on display this week
when the City Council criticized an offer from the local Wal Mart which wanted
to donate $13,000 in ammunition that could be used for training the town
police. This led to a nasty
exchange at a City Council meeting, which made Wal Mart’s withdraw
from the deal.
What caught my eye in the reportage was a statement
from a local attorney, Dana Goldblatt, who got up at the Council meeting during
the public comments period and made this remark: ”We should be able to say fewer police, fewer guns, less ammo,
and somehow we can’t.”
The entire episode got me thinking about gun violence
and the degree to which the discussion never seems to focus on whether the cops
should actually be walking around with guns. In fact, the United States is the
only advanced nation-state which grants its local police the same free access
to small arms that we grant to every adult who hasn’t committed some kind of
serious crime. In effect, we extend to our police the same Constitutional
protection for carrying guns that we give to everyone else, even though there’s
nothing in the 2nd Amendment about using a gun to enforce the law.
Several years ago, our friend Frank Zimring published a
really good book, When Police Kill,
which pointed out that not only is the annual body count from police shootings
at least double what we get from the official reports, but there doesn’t appear
to be any connection between the number of police shootings and controlling
crime or crime rates at all. What Zimring suggests, and the evidence certainly
sustains his argument in this respect, is that other countries which have a
similar rate of violent crime exercise tight control over when and how local
police can carry guns.
It’s all fine and well that Wal Mart wanted to give the
Northampton Police Department free ammunition that could be used for training
the cops how to use their guns, but many, if not most cops rarely, if ever
practice using their guns. Research on
this issue is spotty at best, but even a pro-cop, pro-gun blog like Bearing Arms had to admit
overwhelming majority of police officers are not competent shooters.” And take it from me, that’s an understatement
if there ever was one.
I don’t think it would be such a
bad idea if Gun-control Nation would begin asking themselves why are the cops exempted
from concerns we all share about the risks of walking around with guns? To be
sure, the gun-control contingent has no problem aligning itself with the
various public-interest and community groups who decry police violence
practiced against members of the ‘less-than-fortunate’ class. But the usual
strategy here is to demand more sensitivity training and more time spent on the
proper use of lethal force.
How about considering the idea that cops simply
shouldn’t be walking around with guns?
This is exactly the point made by Attorney Goldblatt at the Northampton
City Council meeting, but I don’t hear it being said anywhere else.
I have been arguing, largely against a brick wall, that
until and unless we get rid of handguns, particularly the handguns which
account for more than 80% of all gun
violence, so-called ‘reasonable’ restrictions won’t do much at all. And while
gun researchers continue to pretend they can preserve the 2nd
Amendment by using synthetic controls regression analysis to come up with a
‘scientific’ proof of how some new gun law will reduce shootings, there’s about
as much science in that nonsense as the science that Pope Urban VIII used to
lock up Galileo in 1633.
Want to end gun violence? It’s simple. Take away what causes the
problem, and the problem is caused by guns.
Gee, that was tough one.
I was going to take a week off from writing my daily column but my reverie was interrupted because I started thinking about gun violence, then about violence, then about how to resist violence, then how resisting violence might be used to set a general direction and overall strategy for the GVP. And at this point, if you don’t know what the acronym GVP stands for, God bless and go read something else.
You may recall that during the 2016 Presidential campaign, the guy who now runs HUD, DR. Ben Carson, began actively competing with Schmucky Don to say the dumbest thing on the campaign trail which could be said. And what Carson said, and he double-downed after he was rightly referred to as a dumb-ass and a jerk, was that European Jews might have prevented the Holocaust had they been armed.
The idiot who represents Alaska in the House, Don
Young, made a shockingly
similar statement in January of this year, which only proves that you don’t
have to run for President to say something which is completely stupid and outside
the knowledge band of the most brain-challenged person you could ever find.
What Carson and Young were doing, whether they knew it
or not, was embellishing what has become a fundamental narrative of Gun-nut
Nation, namely, that violence is bad, but it can also be good if the latter occurs
in response to the former. So why not keep a pistol under your pillow just in
case a tank comes rumbling down the street? Nobody’s saying that someone could
work wonders by shooting off a couple of rounds against a military force. But
the whole point is that armed, self-defense gives you an option when the threat
of violence leaves you no other choice.
There is, however, another response to violence that
Gun-nut Nation ignores, and that’s the requirement to ‘resist not evil,’ by
turning the ‘other cheek.’ I think it’s entirely appropriate to consider the
importance of Jesus’ command on the day that we commemorate his birth. But his
commitment to non-violence is not the only response to violence which doesn’t
involve committing what we call a ‘virtuous violent’ act. What I am referring
to is the concept of non-violent, passive resistance, or what Gandhi called satyagraha, a strategy for
confronting violence which he preached for most of his adult life.
But what do you do if the violence you are confronting
is so enormous, so overwhelming and so destructive that whether you challenge
it or not, you’re going to wind up dead?
On November 20, 1938, Gandhi published an open letter to the Jewish
community of Germany, which had just suffered through the depredations known as
Kristallnacht, which presaged the
beginnings of the Final Solution, the Holocaust and the destruction of 6
million European Jews.
What was Gandhi’s advice for how the Jews
should respond? In Gandhi’s own words: “Let the Jews who claim to be the chosen race prove their title by
choosing the way of non-violence for vindicating their position on earth.”
He then justified what would be the slaughter of the Jewish community because “to
the god fearing, death has no terror. It is a joyful sleep to be followed by a
waking that would be all the more refreshing for the long sleep.”
For those for whom violence should never be the
response to violence, this missive from Gandhi to a population about to endure
the worst and most destructive violent behavior ever imagined on the face of
the Earth should give pause. If we reject the idea that walking around with a
gun is too extreme a response to violence, then Gandhi’s belief represents the
other extreme. Which means that on this Christmas day, we should spend a little
time trying to figure out if there is a third way. And we need to think of this
third way as not being something between the two extremes, but something that
will really work.
Now that the Trump Administration has announced a ban on bump stocks, which means that Sleazy Don is about as willing to support the 2nd Amendment as he’s about to build a wall on the border with Mexico, all of a sudden Gun-control Nation is buzzing with the idea that a new gun law might actually take shape. And since Pelosi has also made noisesabout more gun control, who knows?
Which means that there will certainly be an animated and serious discussion within the ranks of Gun-nut Nation to figure out what should be the ‘reasonable’ new gun laws that might be pushed forward in the days to come.
But it seems to me that if you are going to argue for anew law, any kind of law, you’d better have some idea of what the current gun-control laws are all about; otherwise, how do you know what needs to be changed?
If you go to my blog, you’ll find a page which gives you the opportunity to take a completely anonymous survey that tests your knowledge of current gun laws. The survey asks the same questions of people who consider themselves to be members either of Gun-nut Nation or Gun-control Nation; Survey #4 is for gun-control activists,Survey #5 is for the other side. For the time being, I have taken down the link which lets you see the real-time results,but here’s what the surveys reveal so far.
Of the 12 questions which comprised the survey for residents of Gun-control Nation, only half or more of the respondents gave the correct answer to 5 questions; for the other 7 questions, correct responses were between 10% and 45%. A majority of respondents knew how to define the difference between a long and a hand gun; knew what documentation was required in order to purchase a gun from a dealer; knew who could and could not walk into a licensed gun shop; knew how to define a ‘straw sale;’and knew the definition of a legal gun. However, for those 5 answers where a majority of Gun-control Nation knew what the current law says, incorrect answers were almost as frequent as correct ones. The only question in the entire survey which received more than 80% correct answers was the question involving the legal definition of a gun. In other words, when it comes to understanding current gun laws, the knowledge among our friends in Gun-control Nation is, to be polite, rather scant.
What about the Gun-nut Gang? In fact, for all their talk about the 2nd-Amendment this and the 2nd-Amendment that, most of the residents of Gun-nut Nation don’t even know what the 2nd Amendment actually says. A larger percentage of the gun nuts who answered the question asking for an explanation of the 2nd Amendment got it wrong than the percentage of wrong answers registered by the gun-control gang. Overall, respondents who consider themselves gun-rights advocates also only registered more than 50% correct answers in 5 of the 12 questions,although the questions they answered correctly were slightly different than the correct answers provided by the folks who advocate more controls over guns.
Incidentally, I didn’t put questions on the survey covering esoteric or little-known legal issues covering guns. In fact, I made a point of asking questions about the legal issues that are publicly discussed every day – background checks, straw sales,purchase requirements, etc. The bottom line? Both groups flunked.
I can certainly understand why a majority of gun lovers don’t understand the laws they have to follow in order to own guns. After all,tap the average gun owner on the shoulder and he’ll tell you that, as far as he’s concerned, we don’t need any laws on guns at all.
On the other hand, you would think that my friends who endlessly promote the virtue of ‘reasonable’ gun laws, would at least have some idea of what they are talking about. But when did anyone ever let facts get in the way of emotions, right?
Picture this: You’re driving home from the casino and you’ve absolutely cleaned up – to the tune of $50,000. You see a police car pull up behind you, but you can’t figure out why. Not only have you not broken any laws, you’re not even speeding. But the police officer doesn’t appear to be interested in charging you with a crime. Instead, he takes your gambling winnings, warns you not to say anything to anyone unless you want to be charged as a drug kingpin, then drives off into the sunset.
With its origins in the British fight against piracy on the open seas, civil asset forfeiture is nothing new. During Prohibition, police officers often seized goods, cash and equipment from bootleggers in a similar manner to today. However, contemporary civil asset forfeiture begins right where you’d think that it would: The War on Drugs.
In 1986, as First Lady Nancy Reagan encouraged America’s youth to “Just Say No,” the Justice Department started the Asset Forfeiture Fund. This sparked a boom in civil asset forfeiture that’s now become self-reinforcing, as the criminalization of American life and asset forfeiture have continued to feed each other.
In sum, asset forfeiture creates a motivation to draft more laws by the legislature, while more laws create greater opportunities for seizure by law enforcement. This perverse incentive structure is having devastating consequences: In 2014 alone, law enforcement took more stuff from American citizens than burglars did.
The current state of civil asset forfeiture in the United States is one of almost naked tyranny. Don’t believe us? Read on.
The Origins of Civil Asset Forfeiture
Civil asset forfeiture has a deep history in maritime law. In many cases, it just wasn’t practical to bring owners of vessels carrying contraband in front of an American court. So customs enforcement would simply seize the contraband. But in practice, seizure of assets was rare and generally required a felony conviction in court. Often times these convictions were obtained in absentia, but the point is that there was a criminal proceeding and due process.
During the Civil War, as part of sweeping attacks on liberty that included Lincoln suspending habeas corpus and obtaining an arrest warrant for the Chief Justice of the Supreme Court, supporters of the Confederacy had their property confiscated without due process. Civil asset forfeiture was used during the Prohibition Era to seize assets from bootleggers and suspected bootleggers. Even innocent owners had no defense during Prohibition if their property was used in violation of the Volstead Act.
In 1984, civil asset forfeiture entered a new phase. The Comprehensive Crime Control Act, championed by then-President Ronald Reagan, allowed for police agencies to keep the assets they seized. This highly incentivized the seizure of assets for the purpose of funding police departments rather than pursuing criminal charges. However, the game changed completely in 1996 – the year of the landmark Supreme Court decision Bennis v. Michigan(516 U.S. 442). This ruling held that the innocent owner defense was not sufficient to recover assets seized during civil asset forfeiture.
The plaintiff, Tina Bennis, was the joint owner of a vehicle with her husband John. The latter was arrested by Detroit police when caught with a prostitute on a street in Detroit, and the car was seized as a public nuisance. The court found that despite having no knowledge of the crime, there was no violation of either her property rights or her right to due process. Michigan’s law was specifically designed to deter people from using their assets in criminal activity, which the Supreme Court found to be Constitutional in a 5-4 decision. The Supreme Court likewise found that there was no right to compensation for Bennis.
Criminal Asset Forfeiture vs. Civil Asset Forfeiture
Before going any further, it’s important to delineate the differences between criminal asset forfeiture and civil asset forfeiture. The primary difference is that criminal asset forfeiture requires a conviction while civil asset forfeiture does not. However, there are other differences worth mentioning.
Civil asset forfeiture is a lawsuit against the seized object in question rather than a person. This leads to rather strange lawsuits like “Texas vs. One Gold Crucifix.” The legal burden of proof varies from one state to another, but the most common is preponderance of evidence, notreasonable doubt. What this means is juries decide if the state’s case is more likely to be true than not – not beyond a reasonable doubt. In a civil asset forfeiture trial, courts can weigh the use of the Fifth Amendment. This is not true in criminal trials.
The burden of proof question becomes crucial when it comes to retrieving property. In criminal cases, assets are returned if the prosecution fails to prove the guilt of the accused. In a civil asset forfeiture trial, the accused effectively has to prove their innocence to get their property back. Thus, civil asset forfeiture is a highly attractive option for police departments looking to scare up extra scratch in tight budgetary times. What’s more, the accused is not entitled to legal counsel. This is why, in most cases, it’s not economically advantageous to try and get one’s property back. The lawyer fees will quickly eclipse whatever value the seized assets have.
A 2015 study from FreedomWorks graded the states on their civil asset forfeiture laws. Only New Mexico received an “A,” after the state passed sweeping reforms with regard to its civil asset forfeiture processes. Over half the states received a “D” or less.
Cash seizures in Tennessee have gotten so widespread that the state legislature has begun investigating it. Traffic stops have turned into shakedown operations. Interstate 40 was described as “a major profit center” by Phil Williams, a reporter for Channel 5 in Nashville. Much like extra-legal gangs, police gangs in Tennessee have started engaging in turf warfare over the spoils of civil asset forfeiture. The Dixon Interdiction Enforcement (DICE) and the 23rd Judicial District Drug Taskforce were caught on video trying to cut one another off in their vehicles to stop civilians and search for cash. Indeed, officers were in danger of losing their jobs if they didn’t seize enough cash. The head of DICE admitted that it was funded entirely by civil asset forfeiture cash.
Civil Asset Forfeiture Drives Bad Policing
Civil asset forfeiture isn’t just effectively a legalized form of theft. It also drives (and indeed, incentivizes) bad policing. There is ample evidence to suggest local smokies use civil asset forfeiture to pad their budgets. For example, a 1994 study found that police delay drug busts to increase the value of a forfeiture. A 2001 study of 1,400 police departments published in the Journal of Criminal Justice found that half of the departments surveyed agreed that civil asset forfeiture was “necessary as a budget supplement.” Far more disturbing is the 2004 report showing that police departments keep wish lists for items they wish to obtain via civil asset forfeiture.
To provide some context, in 2014, the total amount of civil asset forfeiture seizures in the United States was $4.5 billion. The total value of property stolen in burglaries was $3.9 billion. This means that police agencies in the United States are taking more from the American public than burglars. More to the point, all the time police agencies use seizing assets from citizens who are in no way a danger to their neighbors is time they don’t spend tracking down actual criminals. In some cases, it might be more “profitable” for a police department to harass a law-abiding citizen while entirely ignoring dangerous criminals.
Case in point: In Tennessee, officers set up a post to bust drug traffickers on a known highway used for muling drugs from Mexico into the United States. However, their post was not set up to stop the flow of drugs into the United States, which one would think would ostensibly be the goal of the “War on Drugs” – to protect American citizens from the inflow of drugs. Instead, the post was set up to bust cars bound for Mexico that might be carrying cash, a far more valuable commodity for the police departments.
Civil Asset Forfeiture Targets Regular People
Let’s assume that you’re against the War on Drugs and against civil asset forfeiture on principle. So what? Who cares about big-time drug kingpins getting their assets seized by the government? Well, as it turns out, the police aren’t generally taking things from drug lords operating in what are effectively domestic war zones. They’re taking them from average Americans.
First, it’s important to remember what the “civil” in “civil asset forfeiture” means. It means that no one has actually been convicted of a crime. Once property has been seized, it’s not only difficult to regain it, but it can also be dangerous for the person who has had their items effectively stolen by the police.
Additionally, it’s worth looking at the scope creep associated with civil asset forfeiture, for which there are currently over 400 federal statutes on the books. This amount has doubled since the 1990s. People who are victims of civil asset forfeiture are many times not even suspected of drug crimes or money laundering. Civil asset forfeiture is applied to crimes like DWI or violating the National Halibut Fishing Act. In 85 percent of all cases, no one is ever charged with a crime, though many people are pressured into signing away their right to a defense in exchange for a guarantee against criminal prosecution. In the case of seized vehicles, between 50 and 80 percent were being driven by someone other than the owner when seized.
In one particularly egregious example, a Philadelphia family had their home seized because their son did a $40 drug sale on the porch. In New York City, police seize money from people with as little as $100 in their pocket. A whopping 94 percent of California seizures in 2013 were for $5,000 or less, but the average DEA seizure in 1998 was $25,000 – precisely the cap on what attorneys advise against trying to reclaim due to legal fees and court costs. Indeed, 88 percent of Department of Justice seizures are “administrative,” meaning they were never challenged in court, likely due to the high cost and risk associated with challenging a seizure.
In addition to the legal fees being prohibitively high for most people, anything you say in the course of recovering your property can be used against you in criminal proceedings. This includes the nebulous charge of “lying to investigators” that is so often invoked against people once it has been determined that they committed no other crime.
It’s a rare moment when the American Civil Liberties Union and the Heritage Foundation come together, but when they do, it’s worth noting. Both oppose civil asset forfeiture.
Civil Asset Forfeiture Nightmares
While such cases are hardly the rule, it’s worth pointing out that there have been instances of civil asset forfeiture that can only be described as nightmarish. Some examples of egregious overreach of civil asset forfeiture include:
Sheriff’s deputies in Campbell County, TN tortured a suspect until he agreed to sign over his assets.
In El Monte, CA, narcotics officers shot a 65-year-old grandfather as he knelt beside his bed. They then seized his life savings and hauled his family in for questioning before admitting that no one had any connection to the drug trade.
In many municipalities, it is policy to seize vehicles from intoxicated drivers who have had no criminal trial.
Nightmarish scenarios aren’t necessary to show the tyranny of civil asset forfeiture, however. While losing a Honda Civic with a market value of $1,000 might not sound like a huge tragedy to you, it certainly is to the woman who has to use the vehicle to get to and from her waitressing job every day.
Don’t Carry Cash!
One of the most disturbing aspects of civil asset forfeiture is what some have called “the war on cash.” Put simply, don’t be caught with a large amount of cash in your vehicle, even if it’s 100 percent legal, unless you wouldn’t mind a budget-strapped local police department taking your wad.
United States courts have repeatedly ruled that simply having a large amount of cash on hand is “strong evidence” of criminal wrongdoing, in particular drug trafficking. Then it’s up to you to prove you didn’t get the money from drug trafficking, and even then you probably won’t get it back. The Patriot Act created a new crime called “bulk cash smuggling,” which expanded the scope of civil asset forfeiture of cash.
Civil Asset Forfeiture: A Slush Fund for Police Departments
Much of the militarized police forces increasingly common in the United States are funded through civil asset forfeiture. This is a highly disturbing trend. However, civil asset forfeiture is also used to purchase things that there is virtually no argument for a police department “needing.”
Here’s a short list of frivolous purchases made using civil asset forfeiture funds:
Confiscated cash has also gone to local Chamber of Commerce chapters, youth baseball leagues, and local Baptist churches.
How Civil Asset Forfeiture Works
Civil asset forfeiture is big business and many times only tangentially related to law enforcement, if at all. But how does the process work?
First, there are three different kinds of property that can be seized under the law:
Proceeds: Anything of value obtained through the commission of a crime.
Facilitating Property: Anything used in the commission of a crime, including property and assets used to hide a crime or make its commission easier.
Property Involved In: This is generally property used in money laundering (for example, a cash-based business).
This property can be real or imaginary, anything from cold, hard cash to intellectual property rights, websites, interests, claims and securities. However, it must be connected – in theory, at least – to some crime that has been committed.
Different states have different standards of proof when it comes to civil asset forfeiture. Unsurprisingly, states with a lower burden of proof tend to seize more assets. Likewise, states with the fewest restrictions on how the money can be used tend to seize more.
Prima Facia / Probable Cause: This is the lowest level of proof required, which is little more than what might be required to search your car after a traffic stop. This is the standard in nine states (Alabama, Alaska, Delaware, Illinois, Massachusetts, Missouri, Rhode Island, South Carolina, Wyoming).
Preponderance: In these states, the state actor has to present evidence that is “more likely true than not.” Four states (Georgia, North Dakota, South Dakota, Washington) use this standard in conjunction with probable cause. 20 states use this as a standard on its own. An additional three states (Kentucky, New York, Oregon) combine preponderance with “Clear and Convincing.”
Clear and Convincing: “Clear and convincing” is a higher standard of proof. Rather than just “more likely true than not,” the evidence must be compellingly more likely to be true than not. 11 states use this standard of proof alone, or in combination with preponderance or beyond a reasonable doubt.
Beyond a Reasonable Doubt: This is the same standard used in criminal cases. It places the burden of proof on the state to eliminate all potential other reasonable explanations. This is the standard in three states (Nebraska, North Carolina, Wisconsin), as well as one (California) where it is used in conjunction with “clear and convincing.”
In Florida, criminal charges are required for seizure. Montana and, most recently, New Hampshire, require a criminal conviction for forfeiture. One state, New Mexico, has abolished the practice entirely.
Civil Asset Forfeiture State by State
Civil asset forfeiture laws and procedures vary widely from one state to another. If you’re an innocent victim looking to get your goods and cash back, the process to do so can be byzantine and obscure.
At the federal level and in 35 states, the burden of proof is on the owner.
In five states, it depends on what kind of property was seized.
In the remaining states and the District of Columbia, the burden of proof is on the government.
In some states, fighting seizure in court means the risk of paying the state’s legal fees.
In half of all states, law enforcement keeps 100 percent of all forfeited assets. In an additional nine states, 80 percent or more is retained by law enforcement.
Some high-profile abuses of civil asset forfeiture have taken place in Texas, which has become a sort of poster child for everything wrong with the civil asset forfeiture system:
Teneha, TX: Population: 1,046
Police force targeted black and Latino motorists on Highway 84. The highway connects Houston with Louisiana casinos.
In three years, Tenaha police stopped 140 drives for forfeiture.
Drivers who refused were hassled for months and paid thousands in attorney fees. The fees generally cost more than the value of the seizure.
Court records were found indicating that in 200 seizure cases, only 50 were charged.
Kingsville, TX: Population: 25,000
Highway forfeitures paid for:
Souped-up Dodge Chargers
$40,000 digital ticket writers
Sniper rifles and military-style rifles
Kimble County, TX
District Attorney Ron Sutton used forfeiture to pay for travel to a conference in Hawaii.
The funds also paid for 198th District Judge Emil Karl Pohl’s travel. Pohl approved the expenditure and later resigned.
Shelby County, TX
This is the county including Tenaha.
District Attorney Lynda Kay Russel paid for tickets to a Christmas parade and a motorcycle rally using forfeiture money.
Equitable Sharing: How Civil Asset Forfeiture Circumvents the Law
As if civil asset forfeiture wasn’t bad enough on its own, there is also a process allowing police organizations to circumvent the existing laws. It’s called equitable sharing and it’s a gold mine for both the federal government and police departments. This process further incentivizes civil asset forfeiture as a means of funding police departments at the federal, state and local levels.
Here’s how it works: state and local law enforcement turn assets over to federal authorities for federal crimes. The feds then return up to 80 percent of the assets back from whence it came. This effectively allows state and local authorities to circumvent relevant local laws by bringing in the feds. For example, in Missouri, seized money is supposed to go to the schools. When equitable sharing is used, nothing goes to schools.
From 2000 to 2013, equitable sharing payments to states tripled from $198 million to $643 million. Only $3 million of this was actually seized in cooperation with federal authorities. Between 2008 and 2015, $5.3 billion was seized through equitable sharing. Where the burden of proof is higher, equitable sharing payouts increase. In 2009, the federal government paid out $500 million in assets under “equitable sharing” schemes. This is up 75 percent from the previous year.
The top states for equitable sharing payouts (even when controlling for the number of drug arrests) are Rhode Island, California, New York and Florida. South Dakota, North Dakota and Wyoming are the states using the program the least.
The Civil Asset Forfeiture Process Is Not Transparent
Civil asset forfeiture might be a powerful tool for law enforcement to go after bad guys (and the word “might” is doing a lot of work there), but it suffers from a terrible lack of transparency.
Only 11 states (Oregon, California, Minnesota, Missouri, Arkansas, Hawaii, Michigan, Georgia, New York, New Hampshire) and the federal government put any forfeiture information available. Three states and the District of Columbia were on track to put forfeiture information online (Nevada, New Mexico, Texas). The remaining states require public records requests or keep no records at all.
Where information is available, it often lacks details like the percentage of criminal versus civil forfeitures or the type of property seized. When spending categories are included, they tend to be very broad, such as “equipment” or “salaries.” For its part, the federal government carefully tracks the type of property, but does not release statistics on which seizures involved convictions. The Institute of Justice found most state records it could actually obtain to be unusable.
The four most transparent states with regard to spending are Arizona, Oklahoma, Pennsylvania and Texas. In these four states:
33 percent went to equipment
21 percent went to salaries
17 percent marked as “other”
Everything that’s not salary is incredibly opaque. For example, the aforementioned margarita makers could easily be filed under “equipment,” to say nothing of the totally nebulous “other” category.
Pushing Back Against Civil Asset Forfeiture
There has been an increasing skepticism from the bench about civil asset forfeiture, and some states are amending their laws to restore rights to people whose assets are seized in this fashion. Some recent reforms have been enacted at the state level, including:
Arizona: In April 2017, the Arizona State Legislature unanimous passed civil asset reform legislation. The language of the bill is vague, however, it does raise the burden for civil asset forfeiture on police departments. The legislation likewise takes steps to close the equitable sharing loophole.
California: In January 2017, new legislation took effect requiring a criminal conviction to seize any assets below $40,000. This limit is high because the main reason people do not challenge civil asset forfeiture is due to the property seized often not being worth the legal fees that would be involved in getting the goods back.
Connecticut: Connecticut now requires an arrest for assets to be seized through civil asset forfeiture. Barring a conviction or a guilty plea, assets must be returned at the end of criminal proceedings.
Georgia: The State of Georgia passed very modest civil asset forfeiture reform in 2015. The law created greater transparency in the process and required that seized assets be used directly for law enforcement. No more margarita machines. Despite these reforms, Georgia continues to have some of the worst civil asset forfeiture laws in the nation.
Minnesota: The Metro Gang Strike Force settled with 96 victims in 2009 for $840,000. In the wake of this scandal, the state legislature passed SF 874, a sweeping reform of the state’s civil asset forfeiture laws. Criminal conviction or an admission of criminal conduct is now required in Minnesota to seize assets. The burden of proof was also shifted to the state.
New Mexico: The Land of Enchantment passed what are perhaps the most sweeping reforms of civil asset forfeiture in the nation. Criminal convictions are required for forfeiture and the proceeds now go into the state’s general fund rather than acting as spoils for the seizing police department. The legislation sharply limited the degree to which local and state agencies can participate in the equitable sharing program.
Pennsylvania: In June 2017, Pennsylvania passed legislation raising the burden of proof on police departments involved in civil asset forfeiture cases and created innocent owner protections. A hearing is now required to seize property.
Tennessee: Former state trooper and state Rep. Barrett Rich introduced a bill requiring a warrant, but this bill failed to pass. An amended version did pass, however, with far more modest reforms including the right to an immediate hearing before a judge. Previously, victims of civil asset forfeiture had to wait up to a year.
In addition to state reforms, the judiciary is becoming increasingly critical of civil asset forfeiture. In June 2017, the DC Circuit Court of Appeals ruled in favor of civil asset forfeiture victims. What’s more, Supreme Court Justice Clarence Thomas delivered a scathing critique of civil asset forfeiture as a whole in March 2017. While rejecting the victim’s appeal on procedural grounds, he called into question the entire existence of civil asset forfeiture as it currently exists.
How to Protect Yourself
You might think there’s nothing you can do to protect yourself against civil asset forfeiture. However, this is not the case. While there is no 100-percent guarantee against civil asset forfeiture, there are some things you can do to provide yourself with some level of protection:
Establish innocent ownership. If you rent property, include a clause stating that illegal behavior is prohibited on your property.
Be careful who you rent your property to. If you don’t trust someone completely, don’t let them borrow your car or house sit for you.
Keep your LLC property on the up and up. It’s increasingly common for people to own property through an LLC. If you do this, make sure that all the legal i’s are dotted and t’s are crossed in terms of establishing your ownership.
Exercise dominion over your property. You can protect your rental property by regularly visiting it and documenting these visits.
Obtain fresh notes for any large amounts of cash. Nearly all circulated currency has drug residue on it, which is often used as evidence of criminal wrongdoing in civil asset forfeiture suits. You can protect yourself by requesting fresh notes when you go to the bank.
Show that you have taken active steps to prevent illegal activity on or with any property that you own, rent or lend. It won’t protect you completely, but it will give you a legal leg to stand on if you ever end up on the wrong side of a greedy police department.
While civil asset forfeiture is certainly scary to anyone who values liberty and property, much like the War on Some Drugs, the tide seems to be turning in favor of liberty and against those who wish to take it.
As a member of the National Rifle Association since 1955 and currently a Patriot Life Benefactor (whew!) Member, it pains me to consider the possibility that the power and influence of America’s ‘first civil rights organization’ may be coming to an end. At least this is what E. J.Dionne, an academic know-it-all, believes may soon occur.
Here’s the announcement from atop Mount WaPo: “Taken together, the events of 2016 and the results of the 2018 election will be remembered as the beginning of the end of the gun lobby’s power.”
As a former academic know-it-all, I would like to politely disagree. And I would like to disagree because Professor Dionne’s argument is based on information being produced, promoted and believed by individuals and organizations who would like the NRA to go the way of the dial telephone and the do-do bird; in other words, they simply don’t like guns.
Dionne’s argument about the de-fanged NRA kicks off with the case of Maria Butina, the Russian poster-girl who is pleading guilty to the charge that she used her connections in the gun business to promote Russian governmental interests; i.e., she was an ‘agent’ for Russian political interests and part of the grand scheme to get Trump elected in 2016.
What’s glossed over again and again in the Butina story is the fact that her handler,Alexander Torshin, happens to be a Board member of the bank which finances a company called Izhmash, which happens to manufacture the original AK-47 assault rifle, which happens to be the single, most popular gun sold anywhere in the world today. The Russian gun maker has been trying, so far without success, to bring the rifle into the American market. If they could pull it off, the deal would probably be worth at least $500 million in net profits. Right now, an American gun nut who wants to own an AK-47 has to buy a gun slapped together with crummy, after-market parts from Rumania or some other place. The real-deal AK would easily sell 5 million units to Gun-nut Nation, and a markup of $100 bucks would still leave the sticker price in the affordable range.
Since Professor Dionne writes about guns from time to time, perhaps he should spend a day at an NRA show to learn something about the business which he postures himself to be an expert on the pages of WaPo. In fact, I’ll meet him at the 2019 show in Indianapolis, walk him around and introduce him to God knows how many overseas visitors who, just like Butina, have some kind of gun-related product they want to promote. Know why Americans own at least 40% of the small arms floating around the globe? Because we are the only country which has a retail gun market, okay? Professor Dionne can also chat with Wayne-o, who makes a point of stopping at the booth of every vendor to thank him for supporting the show. How do you think Maria Butina first met Wayne LaPierre?
Dionne’s other argument about how the NRA’s power is waning is based on the fact that what the NRA put up as political contributions in 2018 was a substantial decrease from what they gave out in 2016, mostly having to do with the $30 million they handed to Donald Trump. But what Dionne doesn’t mention is that,on average, the NRA contributes less than 3% of the money which GOP office-holders spend on their campaigns. Even the total amount that the NRA gave it’s A+-rated, House members in 2018 was less than this same bunch received in political donations from the American College of Emergency Physicians.
What happened in the last election cycle is that national gun-control organizations like Brady and Everytown have been energized by the attention paid by the media to the kids from Parkland, whose national tours were basically the handiwork of a certain, former Mayor of New York City whose first name begins with M, not R. But something else about guns has been happening in the last several years which E. J. Dionne seems not to have noticed at all.
In 1990 and 1992,two remarkable scholars, Art Kellerman and Fred Rivara, published research which indisputably showed that access to a gun increased the risk of suicide and homicide in the home. Know how the average American reacted to this news? The percentage of Americans who believe that a gun in the home is more of a benefit and less of a risk continues to go – up! And given the fact that, at most, only 40% or less of American homes contain one or more legal guns, obviously there are lots of non-gun owners who also buy the NRA’s basic argument about the positives of owning a gun.
If E. J. Dionne wants to inform us about the state of the gun business, maybe he would attempt to explain this remarkable case of cognitive dissonance, which is a much more important harbinger of the long-term health of the NRA. But the truth is that E. J. Dionne will stick with his usual bromides because his audience doesn’t like guns.
Now that Nancy Pelosi has given Sleazy Don a quick lesson in how to negotiate a deal, everyone in Gun-control Nation believes that some kind of gun bill will emerge from the Democratic-controlled House. Maybe it will, maybe it won’t. But if any kind of bill is going to get voted through, the very least we should try to do is craft some kind of measure which will respond to the issue itself. And if the issue is what we call ‘gun violence,’ then we need to make sure we understand what that term really means.
According to the World Health Organization, violence means an intentional injury committed against yourself or someone else. So gun violence would include suicide, homicide and assault, which reduces the CDC-based number of total gun violence from 124,761 to 106,624 because accidents don’t count. And accidents shouldn’t count in the overall scheme of things unless, of course,Gun-control Nation isn’t telling the truth about its support for 2nd-Amendment‘rights.’
But of course they are telling the truth. After all,isn’t that why gun-control groups like Everytown only want to pass ‘sensible’ gun laws? Here’s what Everytown says: “Support for the Second Amendment goes hand-in-hand with keeping guns away from criminals and other dangerous people.” The Giffords group is even more explicit: “we can enact gun safety measures that save thousands of lives and do not threaten Second Amendment rights.”
Wonderful, just wonderful. Not only does Gun-control Nation want to protect us from gun violence, they also take it upon themselves to protect Constitutional ‘rights.’ Now I’m confused. I thought the NRA was America’s ‘first civil rights organization.’ I thought it was the boys in Fairfax leading the charge to keep gun owners from facing a world without a 2nd-Amendment security blanket. I mean, why did I give Wayne-o and Chrissie enough money to become a Life Patriot Endowment NRA Member if tree-huggers and Communists like George Soros and Mike Bloomberg are now making sure that we enforce a law which was ratified in 1791? Something’s not right here, something’s really not right.
I’ll tell you what’s not right. What’s not right is the attempt by my friends in Gun-control Nation to pretend they are committed to the idea that every ‘responsible’ and ‘reasonable’ American should be able to own a gun. If there really is a chance to get a new gun law through Congress next year, why don’t we cut the bullsh*t, okay?
Would someone from Everytown please explain to me what is ‘responsible’ about walking around with a Glock pistol which holds 16 military-ordnance rounds? And if you don’t know the history of the 9mm cartridge, do me a favor and learn something about guns before lecturing me on your commitment to ‘reasonable’ gun laws. Because in my state – Massachusetts – if you haven’t been arrested and convicted for some serious offense and you snooze your way through a gun-safety course which doesn’t require you to shoot a gun at all, you have just met all the sensible and reasonable requirements,Constitutional and otherwise, to walk around town with a gun. What are my friends at Everytown and Brady going to say about that?
I’m really sick and tired of listening to my friends in Gun-control Nation tell me that we can end gun violence by just making sure that the ‘bad guys’ don’t have guns. Gun violence isn’t caused by guys, bad or otherwise. Gun violence is…caused…by…guns. I mean,you just can’t do to someone’s head with a baseball bat what you can do to their head with a gun. I once accidentally whacked my brother on the side of his head with a Louisville Slugger and he suffered from double vision for a couple of days. He wouldn’t have suffered at all if I had blown his head off with my 1911 Colt pistol – he would have been dead.
I don’t think it would be so terrible if Gabby Giffords stood up and said that she just doesn’t like guns.Who’s going to blame her for saying that?
As promised, here’s the first chapter of my new book. I’m going to (hopefully) do a chapter a week and when it is finished put it on Amazon as an e-book. Now if Medium would live up to their nonsense and let users download the text to a droid, It will go there as well. In the meantime, you’re stuck with a pdf.
I started paying attention to the gun debate after Sandy Hook, and several appearances on local television affiliates resulted in an invitation to write a weekly column on gun violence for Huffington Post. But rather than just join the crowd and write the usual laments about gun violence, I decided to fashion as much of my writing as possible on looking at the arguments being made to reduce gun violence, with the hopes that my 50-year experience in the gun business could serve as a guide for understanding how some of those arguments (and the research behind the arguments) might benefit from a somewhat more nuanced understanding about guns and how we use guns.
I am not saying that my views on this subject (or any other subject) are necessarily the last word. But I try in everything I write to distinguish between facts and opinions, and I trust that readers will keep that difference in mind as well.