• Your drug war at work: St. Paul, Minnesota cops stomp a man’s head, then fire a flash grenade at his disabled mother curing a cocaine raid. She suffered third-degree burns. They found three grams of pot and a legal handgun. Taxpayers, not the cops, will pay the two a $400,000 settlement.
• Man attempts to become the walking embodiment of New York Times trend stories.
• LDS elders get swept up in a SWAT raid while at the home of two drug suspects they were counseling.
• Last night, Reason’s Nick Gillespie debate former DEA administrator Asa Hutchinson on drug legalization. You can watch here.
• The federal courts continue to shield even egregious prosecutorial misconduct from any real accountability. Smart lawyerly people: I haven’t read the 11th Circuit opinion yet, but given that absolute immunity is judge-made law, wouldn’t the Hyde Amendment, which is statutory law, take priority in this case?
• Headline of the day.
• Striking photos from the Munich subway system.
• Naomi Klein: People who oppose corporate welfare are just shilling for corporations. Or something like that.
• The photo is from a series of raids on backyard marijuana gardens in Santa Rosa, California. Best line from the article: “O’Leary, the sheriff’s lieutenant, said the show of force by authorities and their tactics were deliberate, selected in part because there is a heavy gang presence and lots of children in the neighborhood.” Ah, so there are children nearby. Well then let’s make the raids as volatile as possible!

Over at Huffington Post, I look at that question in light of recent election results.

The article is almost optimistic. Longtime readers may find that confusing. But I promise, I really did write it.

• More evidence that the public is nearing a tipping point in the war on drugs.
• This will surprise all of you. The Omaha police union is defending the officer who tackled a man out walking his dog, then shot the dog.
• Chicago Mayor Rahm Emanuel says the fact that City Hall reporters illegally recorded journalists without their permission is “much ado about nothing.”
• America! F*ck yeah!
• This New York Times review of Guy Fieri’s restaurant is burning up the Internet at the moment. On the one hand, it kind of makes me want to try the place. On the other hand, I’m not putting anything called “Donkey Sauce” into my mouth.
• Headline of the day.
• “He’ll push to loosen marijuana penalties, legalize undocumented immigrants and pursue a less aggressive American foreign policy.” Guess who?
• Man uses garden hose to spray fire at neighbor’s house. Police tell him to stop. He does. But when firefighters don’t arrive minutes later, he gets frustrated and starts spraying the fire again. So they Tase him.
• Finally, via Gawker:

It’s almost like we went to bed Tuesday night and woke up in an alternate, slightly saner universe.

In light of this week’s milestone victories for common sense in Colorado and Washington, here’s Milton Friedman—one of my personal heroes—writing an open letter to Drug Czar William Bennett in the Wall Street Journal.

In Oliver Cromwell’s eloquent words, “I beseech you, in the bowels of Christ, think it possible you may be mistaken” about the course you and President Bush urge us to adopt to fight drugs. The path you propose of more police, more jails, use of the military in foreign countries, harsh penalties for drug users, and a whole panoply of repressive measures can only make a bad situation worse. The drug war cannot be won by those tactics without undermining the human liberty and individual freedom that you and I cherish.

You are not mistaken in believing that drugs are a scourge that is devastating our society. You are not mistaken in believing that drugs are tearing asunder our social fabric, ruining the lives of many young people, and imposing heavy costs on some of the most disadvantaged among us. You are not mistaken in believing that the majority of the public share your concerns. In short, you are not mistaken in the end you seek to achieve.

Your mistake is failing to recognize that the very measures you favor are a major source of the evils you deplore. Of course the problem is demand, but it is not only demand, it is demand that must operate through repressed and illegal channels. Illegality creates obscene profits that finance the murderous tactics of the drug lords; illegality leads to the corruption of law enforcement officials; illegality monopolizes the efforts of honest law forces so that they are starved for resources to fight the simpler crimes of robbery, theft and assault.

Drugs are a tragedy for addicts. But criminalizing their use converts that tragedy into a disaster for society, for users and non-users alike. Our experience with the prohibition of drugs is a replay of our experience with the prohibition of alcoholic beverages.

I append excerpts from a column that I wrote in 1972 on “Prohibition and Drugs.” The major problem then was heroin from Marseilles; today, it is cocaine from Latin America. Today, also, the problem is far more serious than it was 17 years ago: more addicts, more innocent victims; more drug pushers, more law enforcement officials; more money spent to enforce prohibition, more money spent to circumvent prohibition.

Had drugs been decriminalized 17 years ago, “crack” would never have been invented (it was invented because the high cost of illegal drugs made it profitable to provide a cheaper version) and there would today be far fewer addicts. The lives of thousands, perhaps hundreds of thousands of innocent victims would have been saved, and not only in the U.S. The ghettos of our major cities would not be drug-and-crime-infested no-man’s lands. Fewer people would be in jails, and fewer jails would have been built.

Columbia, Bolivia and Peru would not be suffering from narco-terror, and we would not be distorting our foreign policy because of narco-terror. Hell would not, in the words with which Billy Sunday welcomed Prohibition, “be forever for rent,” but it would be a lot emptier.

Decriminalizing drugs is even more urgent now than in 1972, but we must recognize that the harm done in the interim cannot be wiped out, certainly not immediately. Postponing decriminalization will only make matters worse, and make the problem appear even more intractable.

Alcohol and tobacco cause many more deaths in users than do drugs. Decriminalization would not prevent us from treating drugs as we now treat alcohol and tobacco: prohibiting sales of drugs to minors, outlawing the advertising of drugs and similar measures. Such measures could be enforced, while outright prohibition cannot be. Moreover, if even a small fraction of the money we now spend on trying to enforce drug prohibition were devoted to treatment and rehabilitation, in an atmosphere of compassion not punishment, the reduction in drug usage and in the harm done to the users could be dramatic.

This plea comes from the bottom of my heart. Every friend of freedom, and I know you are one, must be as revolted as I am by the prospect of turning the United States into an armed camp, by the vision of jails filled with casual drug users and of an army of enforcers empowered to invade the liberty of citizens on slight evidence. A country in which shooting down unidentified planes “on suspicion” can be seriously considered as a drug-war tactic is not the kind of United States that either you or I want to hand on to future generations.

Friedman wrote that 22 years ago.

In writing my book over the last several months, I’ve been waist-deep in the drug war propaganda of the early 1970s, and then of the 1980s and 1990s: the government dissemination of flat-out lies, the ceaseless efforts by politicians (ably abetted by a media always eager to pounce on sensationalism) to degrade and dehumanize drug offenders, the relentless martial rhetoric and calls to arms. There were the insane court decisions that shredded the Fourth Amendment. I’ve decided my favorite is United States v. Montoya de Herandez, in which the Supreme Court ruled that customs agents can seize someone coming in on an international flight, hold her incommunicado, then detain her until government agents can watch her defecate in front of them. There were the deeply cynical policies pushed by politicians, like the no-knock raid, which was never asked for police officials or recommended by criminologists, but was an idea dreamed up by Nelson Rockefeller aides (then later adopted by Nixon in the 1968 campaign) as a way to appeal white fears about black crime. There was a time when it was railed against on the floor of Congress (yes, really) and in the Supreme Court (yes, really) as a constitutional abomination, as an affront to the founding principles of the Castle Doctrine and the right to be let alone. When Congress first imposed the policy on Washington, D.C., the city’s police chief refused to use it (yes, really!). Today, it’s such an ingrained part of law enforcement, you’d be hard pressed to find a narcotics cop who could imagine ever doing his job without it. And of course, there are the scores and scores of heart-wrenching stories of death and destruction wrought by all of this madness.

Anyway, all of this was fresh in my head as I watched the election results come in Tuesday night. Whether or not Obama respects the wishes of voters in Washington and Colorado is really only relevant in the short term. I’m now convinced that we are finally winning the long game. I mean Jesus, medical marijuana just barely lost in Arkansas. I guess what I’m getting at here is that spending the last several months reading and writing about just how insane things were at the height of the drug war made me particularly aware of just how magnificent Tuesday night was. The tide is turning. It isn’t often easy to find reasons for optimism when you cover these issues day in and day out. Seeing outright legalization pass in two fairly large states—there’s no other way to interpret that as a sign that we are slowly returning to sanity. This would have been unthinkable 10 or 15 or 20 or 25 years ago.

Friedman’s was always the voice of reason on this issue. But 22 years ago it was a relatively lonely voice, particularly on the right (William Buckley was good on pot). That’s no longer the case. Yes, some of the most obstinate opposition still comes form the right, although as you’ve seen on this site,  it also comes from left-of-center paternalists and editorial boards. And most politicians of all stripes are, typically, a good 10 years behind the public on all of this. But the culture warriors are dying off. The coalition for sensible drug policy is broad, diverse, and has been gathering strength and momentum with each election.

The public is turning. Tuesday was historic. Enjoy it.

The Boston Globe today editorializes against medical marijuana and physician-assisted suicide today, both of which are on the ballot in Massachusetts. Why? Because neither ballot measure gives state bureaucrats sufficient control over over the lives of people who live in Massachusetts.

From the marijuana editorial:

With any other legal drug, patients would expect straight answers — they’d assume, almost unconsciously, that the FDA was protecting them. There’s no such backstop for medical marijuana. Even the wisest physicians wouldn’t have enough data to make definitive judgments . . .

Certainly, any regimen for medical marijuana that’s finally adopted should ensure that only those who demonstrably need the pain relief are getting it.

But in the end, Question 3 isn’t the right answer to a complicated policy issue. There are simply too many inherent problems in asking state officials to oversee a legalized system of growing and distributing a drug that hasn’t been subjected to the federal approval process.

Question 3’s heart is in the right place, and its architects have made a solid effort to learn from the mistakes of California and Colorado. But ultimately, the only truly safe way to legalize marijuana will be through the FDA, with doctors providing prescriptions and licensed pharmacists dispensing the medication.

In the meantime, let the patients suffer, the black markets prosper, and the raids continue. I mean, God forbid we pass a law that gives your average rube the tiniest bit more power to make his own decisions about what he puts into this own body. I mean, what if this law were responsible for someone using marijuana to get high?

And from the physician-assisted suicide editorial:

Reasonable people can disagree passionately about Question 2, but a yes vote would not serve the larger interests of the state. Rather than bring Massachusetts closer to an agreed-upon set of procedures for approaching the end of life, it would be a flashpoint and distraction — the maximum amount of moral conflict for a very modest gain . . .

Instead, Massachusetts should commit itself to a rigorous exploration of end-of-life issues, with the goal of bringing the medical community, insurers, religious groups, and state policy makers into agreement on how best to help individuals handle terminal illnesses and die on their own terms . . .

Physician-assisted suicide should be the last option on the table, to be explored in a thorough legislative process only after the state guarantees that all its patients have access to all the alternatives, including palliative care.

” . . . would not serve the larger interests of the state.” Doesn’t get much clearer than that, does it?

That last bit of emphasis is mine. Interesting what happens when you take these two editorials together. We can’t trust doctors and terminally ill patients to come to a decision about allowing a patient to peacefully, painlessly end his own life, because all of the experts, politicians, and elites haven’t yet decided what’s best for the patient. And we can’t let that same patient relieve his pain with marijuana, because the experts aren’t yet in agreement about the benefits of the drug (in part because the same bureaucratic structure refuses to allow the drug to be used for medical research), and in any case, because the proposed law doesn’t give nearly enough power to government to keep the drug away from people. (The Globe also endorses restricting access to prescription painkillers, by the way.)

The message the Globe editorial board is sending to people with chronic pain and terminal illness is pretty clear: Government power is far more important than your pain. So just fucking suffer.

I have a piece up at Huffington Post looking at this week’s drug dog cases heard by the Supreme Court.

Much of it will be familiar if you’ve read this site over the last year or so. But I also consider whether the lack of any real criminal defense experience among any of the current justices may affect they way they consider these kinds of cases

(Hint: I think it does. And not in a good way.)

• The preliminary hearing is underway in the case of Matthew Stewart, the Ogden, Utah man who shot a police raid team as they broke into his home. Stewart had six marijuana plants inside.
• Bubbles likes mail.
• Sweden wants your trash.
• Amazing tales of asset forfeiture abuse at the Bal Harbour, Florida police department.
• Headline of the day.
• Today’s lesson in in why you avoid calling the cops.
• Another exoneration in a shaken baby case.

Blogging will continue to be light over the next few weeks. I’m in the homestretch of finishing up by book manuscript.

• Newsweek continues the long, proud newsweekly tradition of unskeptical drug war cheerleading.
• Local news investigation finds that Atlanta cops have shot 100 dogs since 2010. That number is fairly meaningless without more detail. The notable takeaway is that only one police department in the entire Atlanta metro area gives cops any training on how to deal with dogs, and that department only started this year.
• Speaking of which . . .
• Beautiful photo of New York City shortly after Sandy.
• But for video, Chicago edition.
• Federal judge rules that police can install hidden cameras on private property without a warrant.

A couple years ago, I wrote a column arguing that the legacy media isn’t liberal so much as statist. Case in point, yesterday’s lead editorial in USA Today, which denounces the various state ballot initiatives to legalize marijuana.

It isn’t a very convincing or well-argued editorial. (They aren’t necessarily the same.) This part in particular jumped out at me:

Marijuana is still illegal under federal law. Those who can grow or sell pot legally under state law can be, and have been, busted by the feds. Although the Obama administration ordered a hands-off policy in 2009 for medical marijuana operations in compliance with state laws, there’s no sign that federal drug enforcers would wink at full-blown legalization.

Emphasis mine. The bold passage is of course utter crap. It is factually, provably untrue.  The fact that the USA Today editorial board reiterates the lie tells us two things. First, they’re simply taking the Obama administration at its word, despite abundant evidence that not only has the administration not taken a “hands-off” approach, but it has been more aggressive at shutting down pot dispensaries than President Bush. (Up to four times worse.)

That means they’re either unaware of said abundant evidence, or they are aware of it and have chosen to ignore it. In either case, what does that say about how much credibility we ought to put into what the USA Today editorial board thinks about marijuana?

• Headline of the day.
• “ . . . a mere 19 percent of millennials think that government spending is the way to improve the economy.” There is still hope for America!
• Britain will sleep safer tonight knowing these monsters are off the streets.
• Pot raid in Detroit = triple puppycide. One dog was fenced in the backyard. According to witnesses, police chased the other two around the house until they had killed them.
• More problems with drug dogs, this time at the border.
• Admitted pot smoker named “fittest man of all time.”
• Better dead than high: Chris Christie edition.

In this week’s issue of Huffington, they’ve published an updated version of my March article on Terrance Huff, drug dog searches, and asset forfeiture.

If you aren’t familiar, Huffington is the tablet magazine spinoff of Huffington Post, focusing on long-form journalism. If you have a tablet computer, I’d encourage you to check it out. One of the main complaints I hear about the Huffington Post site is its clutter and busyness. The magazine is very clean. No ads, no extras.

Anyway, while researching my book I recently came across the passage below from The New York Times Magazine. It has almost on-the-nose relevance to the issues at play in Huff’s case.

See if you can guess when it was published. Answer in the comments.

 . . . a number of judges [have begun] questioning police testimony that relie[s] on such legal passwords as “in plain sight” and “furtive gesture.”

“The difficulty arises,” New York Criminal Court Judge Irving Younger wrote last year, “when one stands back from the particular case and looks at a series of cases. It then becomes apparent that policemen are committing perjury at least in some of them, and perhaps in nearly all of them . . . Spend a few hours in the New York City Criminal Court nowadays, and you will hear case after case in which a policeman testifies that the defendant dropped the narcotics on the ground, whereupon the policeman arrested him. Usually the very language of the testimony is identical from one case to another. This is known among defense lawyers and prosecutors as “dropsey” testimony. The judge has no reason to disbelieve it in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in every case was the defendant unlucky enough to drop his narcotics at the feed of the policeman. It follows that in in at least some of these cases the police are lying.”

In California, where many drug arrests are made during highway patrols, Judge Stanley Mosk of the State Supreme Court recently questioned the police reliance on furtive gestures in justifying arrests.

“The furtive gesture,” Mosk wrote, “has on occasion been little short of subterfuge in order to conduct a search on the basis of mere suspicion or intuition.” In so doing, he said, policy imply guilty significance to gestures that are no more illegal than reaching for one’s driver’s license or turning off a car radio.

Here’s the source. (Via Mike Riggs.)

MORE: Over at Hit & Run, Riggs has a correction and explanation for the $1.5 trillion figure.

• The Salt Lake Deseret News runs an editorial on SWAT raids.
• When occupational licensing bullshit meets anti-immigration horseshit.
• Man raided, dog shot, “small amount of narcotics” found. No big deal.
• Strong lager is the new heroin. Worse yet, someone is making a profit!
• The self-perpetuating police state: Asset forfeiture funds used to purchase surveillance cameras.
• NYC police team takes a detour on the way to a drug raid, pulls over an unarmed man, kills him.

This St. Louis Post-Dispatch columnist appears to be upset that some people are criticizing his local law enforcement professionals for possibly profiling, making illegal traffic stops, and performing illegal searches—all in an effort to seize property from low level drug offenders.

You’d think a journalist would see a possible story here—an opportunity to do some reporting. Maybe he could actually look into Terrance Huff’s allegations instead of mocking them. Maybe he could use his column to see if these sorts of stops have happened to other people. Maybe, you know, at least pretend that he’s holding his local public officials accountable. Maybe he could investigate why a cop with a history like Michael Reichert’s is still on the police force. Maybe look into how these drug dogs are actually used, and whether their “alerts” should really be enough to justify a police officer rummaging through personal belongings.

Maybe that’s asking too much of Pat Gauen. But if he takes his job as a journalist seriously, you’d think he’d do some reporting. Instead, he wrote a column about something he saw on TV, then gave his local public officials a forum to slag a guy whose rights may have been violated.

And here I thought it was we Internet journalists who just sit in our basements opining about stuff, while the newspaper generation goes out and does all the real reporting.

• Interesting article on Wikipedia’s reluctance to let go of accepted but false historical narratives.
• Police raid on child porn suspect ends in gunfire, wounded suspect, and wounded officer. Use of the word “stormed” makes me suspect they didn’t announce themselves. You don’t have to sympathize with the suspect (if the charges are true, I certainly don’t) to understand why this is such a dumb tactic. For example, look at the interrior wallof a Redditor who (claims he) lives next to the suspect. 
• Schrödinger’s cat’s lives.
• Mother Jones tries to link an alleged rise in mass shootings to increased gun ownership. Michael Siegel lets all the air out of that claim here. It’s also worth pointing out that Mother Jones is wrong not just on the analysis, but on the facts. Gun ownership is actually down. As is the overall crime rate. As is support for gun control. Which is to say I doubt there’s a link between guns and crime at all—positive or negative.
• Suspect that Baltimore police claim died from choking on drugs while in custody actually died of blunt force trauma.
• Fun gallery of hyperphotos from Slate.
• Another isolated incident.
• Probably the most outrageous thing you’ll read today: Sarasota, Florida sheriff tries to trick pain patients into signing away their Fourth Amendment rights.
• Some judges are finally started to question police officer claims of superhuman ability to sniff out marijuana.

I just did my first segment on HuffPost, along with one-time Agitator guest blogger Alyona Minkovski and friend-of-the-Agitator Jack Cole, one of the co-founders of Law Enforcement Against Prohibition.

The topic was terrorism and the drug war.

You can watch here.

Eapen Thampy, Americans for Forfeiture Reform

Thanks to the hard work of Americans for Forfeiture Reform policy analyst Scott Meiner, AFR has been asked to submit an amicus brief in an asset forfeiture case that is being appealed to the 11th Circuit Court of Appeals. Below is a brief video I’ve made describing the case (yes, I know the video quality isn’t great; we haven’t had the money for a HD camera yet):

Meiner describes the Terrence Durr seizure and litigation in his post, “A Peculiar Idea of Proof“:

United States District Judge Clay D. Land has ordered the forfeiture of $21,175 seized from two ex-convicts by Deputy Drew Crane, of the Harris County, Georgia, Sheriff’s Office.

Neither of the men were convicted, arrested, or charged. No drugs or drug paraphernalia were reported on the men from whom the currency was seized. The claimant of the currency, Terrance Durr, has a 1996 felony drug conviction and a subsequent parole violation. Durr also has documented gainful employment–including an 8 year work history as a draft technician with Adam’s Beverage, an Anheuser Busch distributor.

The government presented no specific cognizable evidence of any drug transaction (or intended drug transaction) linking the currency to any specific illicit behavior. Durr presented evidence of why he had a substantial amount of cash on his person. The court found Durr’s evidence, and reasoning, unpersuasive.

…

What the ruling appears to boil down to is

1. Durr is an ex-con;
2. Durr had a fairly large amount of currency;
3. The police wanted his currency;
4. The police found his currency;
5. Police recorded a positive K9 alert on his currency and on his companion’s vehicle;
6. The officer said that the vehicle smelled of alcohol and marijuana;
7. Durr cannot prove that his money was not intended, or derived from, something to do with drugs to the satisfaction of the court; and
8. Thus, the government has “proved” that Durr’s cash constitutes proceeds traceable to an exchange for a controlled substance.

This is utter nonsense.

Durr may have intended to use the money for narcotics. Or perhaps he was going to do something else. We do not know. Nobody else knows either–except maybe Terrance Durr.

Durr presented evidence that he intended to travel to Atlanta, GA to negotiate with a bank on the imminent foreclosure of a dilapidated rental property that he owned. Prosecutors easily poked holes in the sensibility of his plan. However, they failed to offer evidence that the money was drug related–unless we are to assume that the means, a criminal record, and unreliable evidence meet the burden. Following this standard of proof would add a lot of forfeiture victims.

There are infinite possibilities as to how he got the money and to what he intended to do with it–whether they be licit or illicit.   But reasonable jurisprudence ought to tether forfeiture to a showing of substantial connection between specific articulated criminal acts and proof beyond a reasonable doubt.

AFR’s amicus brief will likely focus on the insufficiency of the nexus issue (that is to say, the complete government’s inability to establish a nexus between any crime and the seized cash and Judge Land’s breathtaking leaps of logic to justify the forfeiture).

Please donate to support AFR’s efforts on this front!

Scott Meiner, Americans for Forfeiture Reform

Recent tales of asset forfeiture abuse in Tennessee sparked my curiosity as to how Tennessee law enforcement departments are handling (or mishandling) seized property. I am looking for credible accounts (relevant to asset forfeiture) of misappropriation of funds, stolen drugs, improper accounting, et cetera… I’ve concentrated my search on smaller departments with the thought that a couple of bad apples in Memphis do not (statistically) imply a great deal. However, I welcome any articles or reports contributors suggest. Blatant malfeasance in small departments strikes us as more descriptive of the problem and more supportive of the argument that permitting law enforcement to self-appropriate the fruits of seizures abrogates the power of the purse (castrating the electorate’s power to compel responsive government).

Contact @ scott[at]forfeiturereform.com

Initial findings:

3rd Judicial District Drug Task Force: Pervasive accounting deficiencies.

Scott Meiner, Americans for Forfeiture Reform

Nita Ghei has a great Op-Ed at the Washington Times on the new authority given to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF or BATFE) to seize and administratively forfeit property allegedly involved in Controlled Substance Act offenses. The Op-Ed is spot on except a clarification might be useful. Ghei’s Op-Ed could be misread as implying that without the rule change, BATFE lacks power to seize and administratively forfeit property. That is not the case. BATFE already enjoys broad power to seize and administratively forfeit. However, it currently has to to tie the seizure to some specific offense (within its authority)-even if there is no charge or conviction against a person. In practice, expanding BATFE authority to seize and administratively forfeit for controlled substance offenses is granting BATFE authority to use fill-in-the-blank catch-alls for seizures and forfeitures.

Courts often accept that unexplained property possession is drug related-even when there is no direct evidence of drugs. Bulk currency is the obvious example but it could be anything. In theory, that would (and should) be the same with controlled substance act violations. In practice, it is not.

The Column:

The Obama administration is making it easier for bureaucrats to take away guns without offering the accused any realistic due process. In a final rule published last week, the Justice Department granted the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) authority to “seize and administratively forfeit property involved in controlled-substance abuses.” That means government can grab firearms and other property from someone who has never been convicted or even charged with any crime.

It’s a dangerous extension of the civil-forfeiture doctrine, a surreal legal fiction in which the seized property — not a person — is put on trial. This allows prosecutors to dispense with pesky constitutional rights, which conveniently don’t apply to inanimate objects. In this looking-glass world, the owner is effectively guilty until proved innocent and has the burden of proving otherwise. Anyone falsely accused will never see his property again unless he succeeds in an expensive uphill legal battle.

Such seizures are common in drug cases, which sometimes can ensnare people who have done nothing wrong. James Lieto found out about civil forfeiture the hard way when the FBI seized $392,000 from his business because the money was being carried by an armored-car firm he had hired that had fallen under a federal investigation. As the Wall Street Journal reported, Mr. Lieto was never accused of any crime, yet he spent thousands in legal fees to get his money back.

Law enforcement agencies love civil forfeiture because it’s extremely lucrative. The Department of Justice’s Assets Forfeiture Fund had $2.8 billion in booty in 2011, according to a January audit. Seizing guns from purported criminals is nothing new; Justice destroyed or kept 11,355 guns last year, returning just 396 to innocent owners. The new ATF rule undoubtedly is designed to ramp up the gun-grabbing because, as the rule justification claims, “The nexus between drug trafficking and firearm violence is well established.”

The main problem is that civil forfeiture creates a perverse profit motive, leaving bureaucrats with strong incentives to abuse a process that doesn’t sufficiently protect those who may be wrongly accused. Criminal forfeiture is more appropriate because it’s tied to a conviction in a court with the option of a jury trial and evidence beyond a reasonable doubt. Innocents like Mr. Lieto have to fight against the might of the U.S. government with a watered-down standard that stacks the legal deck so prosecutors can get a quick win.

The rule extending civil-forfeiture power to the ATF recognizes this dynamic, stating with perhaps unconscious cynicism that an uncontested civil forfeiture “can be perfected for minimal cost” compared to the “hundreds or thousands of dollars” and “years” needed for judicial forfeiture. Nowhere is there any recognition of the burden placed on innocent citizens stripped of their property, or of the erosion of their civil liberties. In fact, the rule argues that, because in the past the ATF could turn over requests for civil forfeiture to the Drug Enforcement Administration, there has been no change in “individual rights.”

Instead of expanding the profit motive in policing, Attorney General Eric H. Holder Jr. should be working to eliminate it.” Nita Ghei, “GHEI: ATF’s latest gun grab Agency reduces due process for seizing firearms,” The Washington Times, 6 Sept. 2012

The entire speech is worth listening to, but for those interested in Posner’s statement on marijuana you could start listening at about the 54th minute:

-Eapen Thampy

Scott Alexander Meiner, Americans for Forfeiture Reform

Michael Simard prevailed on a civil asset forfeiture and Article III case or controversy standing question before the United States Court of Appeals for the Ninth Circuit. The federal government argued, among other things, that a possessor of currency who denied knowledge of, or interest in, possessed currency, at the scene of an investigatory stop and seizure, conceded Article III case or controversy standing to subsequently claim ownership and/or possessor interest in the currency. For purposes of ownership interest, at this point, the appellate court saw otherwise. The appellate court reversed the district court and found (while implicitly rejecting the government’s position in regards to ownership interest):

” The district court erred in granting the motion to strike by applying the standard of proof for a claimant asserting a possessory, rather than an ownership, interest in property. In a civil forfeiture proceeding, “[a]t the motion to dismiss stage, a claimant’s unequivocal assertion of an ownership interest in the property is sufficient by itself to establish standing.” USA v. Michael Simard, et al., No. 11-15528 (9th Cir. Aug. 27, 2012)(unpublished).

Parties seeking to claim property facing federal in rem (against the thing) forfeiture actions carry the burden of establishing their own constitutional standing at all stages of litigation. Without Article III case or controversy standing, federal courts lack jurisdiction to hear the claim.

The government’s argument, if successful, threatened to further escalate incentivization of coercive seizure tactics while reducing access to the courts-eliminating it for some. Many parties who suffered currency seizures would effectively be left with no option but to petition the agency for remission or mitigation-a plea for the agency and agents (who often havefinancial and professional incentives to say no) to be merciful.

Mr. Simard and his attorneys, Ronald N Richards and Louis Palazzo, deserve congratulations on their victory. The matter has been remanded to the district court where the matter will be further litigated. Among possible issues to be discussed in further litigation include the government’s contentions:

• Asking for a consent to search on the pretense of a “current threat assessment and homeland security issues” is not coercive [It should be noted that Simard is Canadian. The U.S. Government's role in sending Canadian Maher Arar to his native Syria for a year of torture is better known in Canada than it is in the U.S.]

• Simard’s vehicle being ”cluttered with several snacks” [while on a road trip] was indicative of a courier smuggling drugs or drug proceeds.

• The use of a rental car was indicative of a courier smuggling drugs or drug proceeds.

• The presence of an ”atlas on the front right passenger seat” was indicative of a courier smuggling drugs or drug proceeds.

• The presence of a “black backpack on the right front floor board [which] would hold insufficient clothing for the road trip” was indicative of a courier smuggling drugs or drug proceeds. [This was was prior to officers finding further luggage-presumably in his trunk where a good number of people keep luggage.]

• The presence of multiple duplicate electronic devices was indicative of a courier smuggling drugs or drug proceeds.

• Simard was no longer detained after officers told him that he could go but then came back and starting asking more questions, secured a signature to consent to search his rental, and seized the currency in his possession.

• That a positive canine sniff on bulk currency was (and is) a reliable indicator of recent exposure to illegal controlled substances and thus a reliable indicator that the currency was either intended to be used to purchase illegal drugs or constitutes proceeds of illegal drug sales.

-Eapen Thampy

Jason Zepps hosted a community sound-off on this afternoon’s “Shadow Convention” coverage of the War on Drugs by Huffington Post Live. I wanted to point this segment out as it contains an account of another marijuana SWAT raid by the infamous Columbia Police Department. Leah Maurer narrates at 11:05; I am providing a rough transcription because I can’t embed the video, so you should click through and listen:

…My husband and I were involved in a home invasion by ten armed men in a SWAT team style raid on our house…we had no prior record…this was in Missouri, where we used to live… Only someone who’s lived through that can speak to the horror that you have to go through and having to have your civil liberties violated in that way by this overarching force like Walter referenced earlier the way that police forces have become so empowered and people have begun to fear them and it’s because of things like this when yo uhave three men that are three times my size holding machine guns at me when I have a harmless plant growing in my basement…

…I believe that they came into the house, and they found what they were looking for, and that after that all they continued to look for was money. I think they were trying to find a lot of money, which we had none…they ripped our whole house apart looking for that, because what they were looking for was pretty obvious, the grow was pretty obvious…

…We relocated 2000 miles away from them because after having our house drug through like that, not only did that happen but our faces were all over the media in this tiny little city in Missouri, we lost friends over it, my children were treated differently because of it, it was a pretty horrific experience and we just knew we had to get out. My husband was arrested because of it and is now a felon and is now serving probation…

…We were two people who completely had our liberties taken from us that day…

-Eapen Thampy

In the Washington Times, “Caravan for Peace crosses U.S. to highlight the failed War on Drugs“, excerpt:

This  August in conjunction with the Mexican Movement for Peace with Justice and Dignity, a high profile Caravan of Peace is crossing the U.S., starting in San Diego/Los Angeles area, heading east along the U.S.-Mexico border and then swinging north to Chicago, and cross to Cleveland, New York, Baltimore, and Washington, D.C. to heighten the awareness of the failed “War on Drugs.”

The 6,000-mile journey through 20 cities is to honor lives lost due to the failed prohibition policies, culminating in an international day of action in Washington, D.C.

These days it is almost impossible to listen to the national news without reading about the rapidly escalating drug-related violence in Mexico, most particularly the areas of Mexico that share a common border with the United States.

The deadly mayhem and the greed that fuels it recognizes no borders, often making the American side of these drug war zones just an extension of their battlefield. Both sides of the border are tired of law enforcement’s failed efforts to put an end to the bloodshed and the breakdown of society in general.

So weary in fact, that renowned Mexican poet Javier Sicilia has become the primary spokesperson for the Mexican Movement for Peace with Justice  & Dignity (MPJD). Also joining MPJD on the Caravan of Peace will be a broad bi-national coalition of 100 organizations.

U.S.-based organizations and foundations including the Latin American Working Group, Washington Office on Latin America, The RFK Center, regional leaders of the Brady Campaign, Heeding God’s Call, Presente.org, LCLAA, NALAAC, Law Enforcement Against Prohibition (LEAP), Fellowship of Reconciliation, Veterans for Peace, Institute for Policy Studies, Drug Policy Alliance, and many others, who realize a new approach is required.

To illustrate the gravity of the problem, Sicilia points out that more than 60,000 people have been killed in drug violence in Mexico in the last few years. More than 10,000 people have been disappeared and over 160,000 displaced.

“Our purpose is to honor our victims, to make their names and faces visible,” Sicilia said. “We will travel across the United States to raise awareness of the unbearable pain and loss caused by the drug war – and of the enormous shared responsibility for protecting families and communities in both our countries.”

Link via Law Enforcement Against Prohibition executive director Neill Franklin, who adds:

Eapen Thampy, Americans for Forfeiture Reform

Sarah Stillman has an excellent article on the use of confidential informants in drug cases in the United States this week in the New Yorker:

Informants are the foot soldiers in the government’s war on drugs. By some estimates, up to eighty per cent of all drug cases in America involve them, often in active roles like Hoffman’s. For police departments facing budget woes, untrained C.I.s provide an inexpensive way to outsource the work of undercover officers. “The system makes it cheap and easy to use informants, as opposed to other, less risky but more cumbersome approaches,” says Alexandra Natapoff, a professor at Loyola Law School in Los Angeles and a leading expert on informants. “There are fewer procedures in place and fewer institutional checks on their use.” Often, deploying informants involves no paperwork and no institutional oversight, let alone lawyers, judges, or public scrutiny; their use is necessarily shrouded in secrecy.

“They can get us into the places we can’t go,” says Brian Sallee, a police officer who is the president of B.B.S. Narcotics Enforcement Training and Consulting, a firm that instructs officers around the country in drug-bust procedures. “Without them, narcotics operations would practically cease to function.”

Every day, offenders are sent out to perform high-risk police operations with few legal protections. Some are juveniles, occasionally as young as fourteen or fifteen. Some operate through the haze of addiction; others, like Hoffman, are enrolled in state-mandated treatment programs that prohibit their association with illegal drugs of any kind. Many have been given false assurances by the police, used without regard for their safety, and treated as disposable pawns of the criminal-justice system.

In Vancouver, Washington, Jeremy McLean was roped into being a confidential informant after selling a friend eight methadone pills. Fourteen undercover stings later, Jeremy would become the murder victim of a heroin trafficker he’d helped set up:

Mitchell McLean has come to see his son’s death as the result of an equally cynical and utilitarian calculation. “The cops, they get federal funding by the number of arrests they make—to get the money, you need the numbers,” he explained, alluding to, among other things, asset-forfeiture laws that allow police departments to keep a hefty portion of cash and other resources seized during drug busts. “It’s a commercial enterprise,” he went on, citing a view shared by many legal scholars and policy critics. “That’s how they pay for their vans, for their prosecutors—they get money from the war on drugs. They put zero dent in the supply. They just focus on small-town, small-time arrests.” He continued, “I understand using C.I.s to get information on who is a mid-level dealer, or to go after the big guys. That’s the information that I, as a taxpayer, would love to see them do—cases that have some significance. I still remember the big busts from the eighties and nineties, where they’d nail a heroin kingpin.”

Read the whole thing.