Federal Judge Declares ‘Policing for Profit’ Unconstitutional

Anybody who has watched at least one episode of Law & Order knows that in America, anyone accused of a crime is considered “innocent until proven guilty.” That’s the way it should be, at least. When a person is accused of a crime, the burden of proof belongs to the accuser.

But what most people don’t realize is that police routinely use a constitutionally dubious form of legal jiu-jitsu called “civil asset forfeiture” to flip this basic principle of fairness on its head. With civil asset forfeiture, police literally accuse your stuff of a crime, and you as the owner have to prove that your stuff is innocent.

Here’s an example:  Beginning in 2006, under the guise of looking for criminal activity, the police in Tenaha, Texas stopped, searched, and often seized property from Blacks and Latinos traveling through town with no suspicion of criminal activity.

 

 

The police threatened that if the travelers did notturn over their cash and other valuables, theywould be arrested on money laundering charges and, in some instances, have their children taken by Child Protective Services.  If they turned over the cash, they would be let go.  Unsurprisingly, many victims simply turned over their money.

the ACLU settled a class action lawsuit, against officials in the East Texas town of Tenaha and Shelby County over the rampant practice of stopping and searching drivers, almost always Black or Latino, and often seizing their cash and other valuable property. The money seized by officers during these stops went directly into department coffers. It was highway robbery, targeting those who could least afford to challenge the officers’ abuse of power, under the guise of a so-called “drug interdiction” program and made possible by Texas’s permissive civil asset forfeiture laws.

Hundreds, if not more than a thousand, people have been stopped under the interdiction program. From 2006 to 2008, police seized approximately $3 million from at least 140 people as part of the program. None of the ACLU’s clients were ever arrested or charged with a crime after being stopped and shaken down.

Law enforcement officials

used the seized assets to enrich their offices and themselves and justified their actions via Texas’s permissive “civil asset forfeiture” statute.  Those people who wanted to recover their money needed to hire lawyers to challenge the seizures, a process that was expensive and not practical for many.  Several individuals affected by this practice joined a class-action lawsuit against Tenaha and several city and county officials, challenging these illegal stops and seizures.

The ACLU joined the case, Morrow v. City of Teneha, et al., in July 2012.

Officers who are defendants in the case testified that there were no limits on the searches and seizures conducted under the interdiction program. One of the defendants, Barry Washington, testified that he considered the ethnicity and religion of the motorists to be factors relevant to establishing reasonable suspicion of criminal activity. Under oath, when asked what indicators of criminal activity might be, Washington testified:

Well, there could be several things. There could even be indicators on the vehicle. The number one thing is you have two guys stopped, and these two guys are from New York. They’re two Puerto Ricans. They’re driving a car that has a Baptist Church symbol on the back, says First Baptist Church of New York.

The plaintiffs in the ACLU’s lawsuit lost hundreds or even thousands of dollars to the defendant officers. If they refused to part with their money, officers threatened to arrest them on false money laundering charges and other serious felonies. The consequences for parents of color were even worse: officers threatened mothers like Jennifer Boatwright that if they did not part with their cash and valuables, their children would be taken away from them and put in foster care. This was not an empty threat; when Dale Agostini, a successful restaurant owner, refused to hand over $50,000 in business earnings he was carrying to buy new restaurant equipment, police seized both his money and his 16-month-old son. When Agostini pleaded to keep his son or at least kiss him goodbye, the officers refused and simply continued counting the money they had seized from him.

 

 

The attention paid to Tenaha has led to an effort by Texas lawmakers to tighten the state’s forfeiture laws. A bill sponsored by state Sen. John Whitmire, D-Houston, would bar authorities from using the kind of waivers Daniels, Henderson and Busbee were told to sign.

“To have law enforcement and the district attorney essentially be crooks, in my judgment, should infuriate and does infuriate everyone,” Whitmire said. His bill has passed the Senate, where he is the longest-serving member, and is currently before the House of Representatives.

While Tenaha represents some of the most egregious abuses in racial profiling and civil asset forfeiture, the facts are far from unique. The ACLU is investigating similar abuses in states across the nation. In the meantime, the settlement in Tenaha should send a message to law enforcement departments across the nation: officers should focus on protecting the communities they serve, not on policing for profit.

In 2015, the ACLU of New Mexico, in collaboration with the Institute for Justice, the Drug Policy Alliance, and the Rio Grande Foundation, helped pass a bill that abolished civil asset forfeiture, requiring police to obtain a criminal conviction in court before they can take a person’s property. The bill also requires that any forfeited assets must go into a state general fund to reduce the profit motive inherent in this law enforcement practice. The bill passed unanimously, and New Mexico now has the strongest protections against civil asset forfeiture in the nation.

This year Wyoming lawmakers, citing a story of civil forfeiture, have now banned the roadside waivers that police used to wrongly take Phil Parhamovich’s $91,800.   Phil Parhamovich had been waiting for this moment for a long time. The 50-year-old had spent years restoring and selling houses, cars, and musical instruments, often clocking 12-hour workdays, to save up more than $91,000. And now it was all going to pay off: He would buy a music studio in Madison, Wisconsin, where Nirvana and the Smashing Pumpkins recorded songs — not just fulfilling a dream of owning a monument to grunge rock, but also giving him a space to work on his own career as a musician.

Then came the police stop this past March. By the time it was over, police in Wyoming would take all of Parhamovich’s money — the full $91,800. Parhamovich, who has no criminal record, was not accused of or charged with a serious crime; he only got a $25 ticket for improperly wearing his seat belt and a warning for “lane use.”

But Wyoming law enforcement officers found and eventually seized the $91,800 in cash, as it was hidden in a speaker cabinet — by getting Parhamovich, under what he claims was duress, to sign away his interest in the money through a waiver.