My civil asset forfeiture story

Yesterday evening, while enjoying a plate of carnitas at Chimi's in Tulsa, I listened to State Senator Kyle Loveless (R-OKC) describe his bill to reform civil asset forfeiture laws in Oklahoma.  Senate Bill 838 would put a stop to Oklahoma law enforcement agencies seizing and keeping people's property without going to the trouble of convicting -- or even charging -- the property owners with a crime.  If you are unfamiliar with the practice of civil asset forfeiture, then you should become educated. 

My education came hard and fast when I took on my one and only forfeiture case four years ago. 

Police arrested and charged a man with manufacturing a controlled dangerous substance.  At the time of the arrest, the police also seized a pickup and a new Harley-Davidson motorcycle that were parked in front of the house where the arrest occurred.  Also seized were two rifles and two handguns, which were found inside the house.  

The district attorney filed a Petition to Forfeit Property Seized During Arrest for Controlled Dangerous Substance.  As is the practice in asset forfeiture cases, the property items themselves were listed in the case caption as the "Defendants."  The property owner(s) were not named.  (Inanimate objects tend to put up less of a fight.)

I was hired to represent the motorcycle -- sort of.  The motorcycle was actually titled in the names of the suspected drug dealer and his elderly mother.  The mother's guardian hired me to defend against the forfeiture of the motorcycle.  The other inanimate objects were on their own.

I learned that the motorcycle had been purchased by the mother at the urging of her precious little boy.  She made the down payment, signed the note to the bank, paid almost all of the installment payments, and paid all of the insurance premiums.  Nonetheless, she was about to lose the motorcycle because, according to the Petition:

found in close proximity of Manufacturing of Methamphetamine . . and believed to have been utilized in exchange for, and to transport, or were otherwise utilized in connection with said controlled dangerous substances.

But what the Petition did NOT allege was that any controlled dangerous substance was actually found.  All that was found was "drug paraphernalia," including some scales.  Nothing was found on the motorcycle, nor was there any evidence that the motorcycle had been used to transport any controlled dangerous substances.  

I filed an answer to the Petition, explaining that the mother was the one who purchased the motorcycle, and that the bank was the effective owner, since the loan balance was more than the resale value of the motorcycle.  Even if the motorcycle had been used "in exchange for" or "to transport" drugs, it is unlikely that Mom was aware of it, since she had Alzheimer's and was house-bound.

I thought the filed answer would be enough to shake the motorcycle loose from the district attorney's grasp, but it was not.  He pressed ahead.  This means that he was taking the position that he could take my client's motorcycle simply because it was parked in front of a house in which the police found some scales.  Sound reasonable?

The law he was relying upon provides:

All monies, coin and currency found in close proximity to any amount of forfeitable substances, to forfeitable drug manufacturing or distribution paraphernalia or to forfeitable records of the importation, manufacture or distribution of substances, which are rebuttably presumed to be forfeitable under the Uniform Controlled Dangerous Substances Act. The burden of proof is upon claimants of the property to rebut this presumption . . .

As bad as this law is, notice that it applies only to money -- not property in general, such as a motorcycle.  Also, what is "close proximity"?  Is a motorcycle parked in the driveway in close proximity of the heinous scales found inside?

Another portion of the law requires that the district attorney give notice of the forfeiture petition to any known lien-holder.  But even though I identified the bank and included the loan number in my answer, the district attorney refused to give notice to the bank.  (Bank lawyers put up more a fight than inanimate objects.)

We had a hearing.  Once I convinced the judge that the motorcycle was effectively owned by the bank, the district attorney cut bait.  He voluntarily released the motorcycle from the forfeiture petition, but still refused to concede that he was in the wrong.  He insisted to the court that he could still take the motorcycle if he wanted to.  I had the motorcycle, so I quit arguing.

The pickup and the other items were still forfeited.  The owner had a public defender, but since the forfeiture was a civil action, the public defender would not lift a finger to help save the property.  The owner was unrepresented and overwhelmed.  

Sen. Loveless is being vilified all across the state by sheriffs and district attorneys for trying to reform this system.  According to them, there is nothing to see here, so move along.  

Return of the Wasps

The wasps are back. This is a horror show that gets replayed every fall when a new generation of wasps emerge from their nests and start buzzing outside my 5th-story office window. “Horror show” might sound like an exaggeration, but try to imagine this scenario.

You are working at your desk when movement at the corner of your vision causes you to glance up at your office window. You notice a couple of wasps clumsily flitting about on the other side of the glass. You return to your work.

More movement. . . and tapping. You look up and see a dozen wasps, a few of which are repeatedly bumping into the glass. [tap . . tap . . tap] Your ears immediately become attuned to this sound. Can a certain fury now be detected in the darting movements of the wasps, or is this impression caused by the number of wasps now assembled? No matter. They are on the OUTSIDE of the glass. You are on the 5th floor and so the windows do not open, nor are there any other openings. You return to your work.

The sound of wings. You look up to see eleven wasps on the outside of the glass . . . and one on the inside. The ones on the outside seem to want in, and the one on the inside seems to want out. But this is impossible. How can a wasp pass through solid glass? What numinous abilities do these wasps possess? You ponder the question, but then convince yourself that the appearance of this one wasp is a fluke. It must have gotten inside the building by some ordinary means and then it flew down the hall and into your office. He seems preoccupied with the glass, so there is no cause for concern. You can kill him later. You return to your work.

The harmonious sound of multiple sets of wings. You look up to see nine wasps outside of the glass and three on the inside. Two of the three are tapping against the glass, wanting out, but the third is flying a diagonal path across your office airspace. His thoughts and motivations are his own. Now is the time for panic felt deep, coupled with irrational speculations as to entomology and the supernatural. Work is abandoned.

This has been my experience for the past five years. The mystery as to how the wasps get inside disturbs me almost as much as the wasps themselves. The building’s super has theorized that they get in through the light canisters in the ceiling, but this makes no sense to me. Why would light canisters have a direct avenue to the outside? If so, why can’t the openings be plugged? The super has made multiple attempts to combat the wasps over the years, including filling the building with deadly poisons (perfectly safe for us worker drones, of course), but the wasps seem unfazed. The super has now surrendered – the building is the wasps’ domain. We are expected to live and work by their good graces.

When the wasps return, the transition period can be difficult, but I am soon given over to acceptance and submission. The wasps fly about the room, alight on the spout of my water bottle, and crawl on my desk. But my clients, who visit my office and encounter the wasps for the first time, are less staid in their reaction. It is distracting to try to discuss their cases with them while their eyes track the movements of the wasps in the room. They flinch, duck, and sometimes vocally express their displeasure with the wasps. Acceptance takes time, I suppose.

Cruz in Bartlesville

I just now left Wesleyan University, where Ted Cruz held a campaign rally.  It was an impressive turnout of well over 1,000 people.  The senator spoke with energy and really connected with the crowd.  I appreciated much of what he had to say, but he lost me each time he spoke on defense and foreign policy matters.

I most disappointed in the demagoguery he employed when expressing his opposition to the Iranian nuclear agreement.  He began by pledging to tear up the agreement as one of his first acts in office.  That got the crowd on their feet.  He then said that if the deal is implemented, the U.S. will become the world's leading financier of terrorism.  Cruz has recently received criticism from the press and even Republican party leaders for making this claim elsewhere, so repeating it in front of the Bartlesville crowd was his way of being bold. 

He explained the reasoning behind his statement in much the same way he explained it here to Sean Hannity: 

“Under the Obama nuclear deal, over $100 billion will flow to Iran. Iran is the world’s leading state sponsor of terrorism, so much of that money will end up in the hands of Hamas, Hezbollah, and the Houthis, and other radical Islamic terrorists. And if this deal goes through, the Obama administration will become quite literally the world’s leading financier of radical Islamic terrorism.”

(At the campaign rally, I believe that he identified the U.S., rather than the Obama administration, as the world's leading financier of radical Islamic terrorism.)  

He then broke it down, by stating, "Here are the facts."  Among these "facts" was that over $100 billion will flow to Iran.  This is misleading, at best.  Cruz is knowingly giving the impression that Iran will be paid that much money by the U.S. or U.S. partners.  In fact, that money is already Iranian money, but it is locked up in suspended accounts.  As part of the deal, Iran will be permitted to have access to their own money.  Keep in mind that Iran is a sovereign country.  It is not a defeated enemy, nor is it a country against whom the United States has made a declaration of war.

The next Cruz "fact" is that once Iran receives those billions, it will send them to Hamas and other terrorist organizations.  This goes beyond being misleading.  Cruz is merely speculating as to how Iran will use those funds, and it is not speculation base upon reason.  The Iranian economy is in shambles, right now, and the Iranian electorate is demanding that the government act to relieve the economic pressures at home.  If the government were to send over a $100 billion to Hamas, the government would be ousted by the people.  Yes, Iran supports Hamas and money is fungible, so freeing Iranian bank accounts in the U.S. could facilitate that support.  But Cruz is claiming much more than this.

The next Cruz "fact" is that, "Hamas will then use that money to kill Americans, Israelis, and others." Hamas is a terrorist organization that has been responsible for many civilian deaths, including some Americans, but America is not their stated enemy, nor do they target Americans.  I too would like to see Hamas starved of funds, but there is not a straight line to be drawn from the negotiated Iranian nuclear agreement to American civilian deaths by Hamas.

Cruz went even further and stated that it appears that President Obama, "wants Iran to have a nuclear bomb."  This claim is absurd on its face.  If Obama truly wanted Iran to have a nuclear bomb, then his best course of action would be to not reach an agreement of any kind.  Iran would then be free to operate as they wish -- not limits on centrifuges or enrichment (other those already existing under the Nuclear Nonproliferation Treaty), and no inspections.  

I like how Senator Cruz manages to disquiet entrenched and settled opinion, but only when he does so using the truth.

Cruz also pledged to "rebuild the U.S. military."  Huh?  Where did the military go?  Defense spending still accounts for 54% of all federal discretionary spending.  The U.S. spends more on its military than then next nine countries combined.  I thought we wanted less government.

I mistakenly thought Cruz was was not going to take questions, so I left as soon as he concluded his remarks and did not get the opportunity to ask him any of the questions I had prepared.  Here they are: 

“By what standard and legal authority do you believe the president may authorize a drone strike on a human being?”

“In his recent foreign policy speech in California, Jeb Bush advocated a no-fly zone in Syria, enforced by the U.S. military.  He also advocated U.S. troops being embedded with Iraqi security forces inside Iraq.  What is your position?”

“Identify the federal programs or departments that you would like to eliminate entirely, and the amount of savings you believe would result from such eliminations.”

“You co-sponsored the ‘Freedom Act,’ which reformed portions of the ‘Patriot Act.’  The Freedom Act placed limits on the NSA’s ability to access our phone records, but still permits the NSA to gain court authorized access based on a showing of less than probable cause.  Why do you support such authorization, and how does that standard comport with the Fourth Amendment?”

“You have identified former U.N. ambassador John Bolton as someone you look to for foreign policy advice.  Do you think John Bolton gave good advice to George W. Bush when he urged war upon Iraq for the purpose of finding Saddam’s weapons of mass destruction?  Do you agree with Bolton’s statement in his recent NYT’s op-ed, that only a military attack upon Iran ‘can accomplish what is required’?” 

USPS is in the Red

Doug Bandow's latest essay on the United States Postal Service is relevant to my blog post on the same in December. 

BIA, NEPA, BMP (UPDATE)

In November, I blogged about the impact on mineral producers in Osage County, Oklahoma from a new mandate issued by the Bureau of Indian Affairs, requiring an environmental assessment as a precondition to any future drilling activity.  I made mention of a federal class action lawsuit that precipitated the mandate.  Since then, the lawsuit has not advanced an inch, with the judge still pondering numerous Motions to Dismiss, filed by the mineral producers.

There is an article in today's Tulsa World describing the overall situation and the impact on the oil economy in Osage County, which is well on its way to being devastating.  But Gentner Drummond, the Plaintiffs' attorney, has a different term for it: "a godsend."  According to Mr. Drummond, this is because “exploration and production costs are saved during this period of reduced oil prices.”

The implication is that the Osage Nation and the oil producers lack sufficient knowledge and wisdom to adroitly respond to movements in the price of oil, so God must send a class action plaintiffs' attorney to save the day.