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State Law Breakers

By KEVIN CARSON | CounterPunch | November 5, 2013

I just read that the parents of an autistic high school student arrested in a drug sting operation in Temecula, California last December have filed suit against the school district. The parents were “initially happy their son had made his first and only friend last year at school,” but became suspicious when his “school friend” kept making excuses for not coming over. The “friend,” actually Riverside County Sheriff’s Deputy Daniel Zipperstein, “pressured their lonely and vulnerable son with more than 60 text messages over about three weeks into buying half a joint from a homeless man.”

The very existence of “sting operations,” by which law enforcement personnel solicit illegal activity — in other words, perform acts which are illegal on their faces in the course of their official duties — speaks volumes about the nature of the state and its laws. When the first professional police forces were created in London and New York in the early 19th century, they were regarded as simply hired functionaries who got paid to perform the same “posse comitatus” functions (preserved in the archaic practice of “citizen’s arrest”) within the competency of all citizens. The proposition that professional police be granted special status over and above that of their fellow citizens would never have been tolerated.

I’ve never understood the logic by which someone in uniform can commit an act that’s defined as illegal by statute, in the course of a sting operation, without themselves breaking the law. If it’s illegal for a citizen to offer drugs or sexual acts for sale, or to solicit their sale from others, how is it legal for a cop to offer to buy or sell drugs from a citizen?

The answer, of course, is that the state cannot operate on the same logic as its citizens. I once told a coworker that, when it came to drug and sex work sting operations, cops should be subject to the same anti-solicitation laws they’re enforcing on us. Her response: “But then how would they catch people who do that stuff?”

Good question. Obviously, they couldn’t. The state simply can’t function unless it gives its own functionaries, with a wink and a nudge, an exemption from the laws that everyone else is supposed to obey.

The state couldn’t enforce laws against drugs, sex work, or any other consensual activity if it were literally bound by laws like the due process guarantees in the Bill of Rights. Imagine how the Drug War would fare if the Fourth Amendment were enforced literally, without any of the “reasonable expectation of privacy” or “probable cause” or “good faith” lacunae the courts have read into it — if cops actually had to have a warrant specifying the place and what they were looking for before they could set foot on your property? Imagine if civil forfeiture were treated as a violation of the Fifth Amendment, and the state couldn’t take your possessions without first charging you with a crime and persuading a jury to convict you. Under those terms, it wouldn’t matter if the substantive restrictions on drugs were as harsh as those in Singapore — they would be dead letters in practice because they were unenforceable.

Civil forfeiture was first introduced in the revenue collecting arms of government, because it was understood from the beginning that a literal interpretation of the common law prohibition on seizure of property without due process of law would render the tax laws unenforceable. Going through the ordinary criminal law process to collect from tax evaders would cost more than the revenue was worth.

Civil forfeiture by an administrative law body, based on a preponderance of the evidence, was originally a form of prerogative law in England. Prerogative courts like Star Chamber derived their procedural rules from the Roman civil law, as it was codified under Justinian. The proliferation of prerogative courts under the Stuarts was among the things that led to both Charles I and James II losing their thrones. But even after the accession of William and Mary, it was understood that customs and revenue were an exception to the common law’s “universal” due process requirements.

It was customs officials, operating under Admiralty law, who rubbed American colonials the wrong way and helped bring on the American Revolution. But even after the ratification of the Constitution and Bill of Rights, it was quickly established in case law that the prohibition against seizing property without a jury trial didn’t apply to customs and revenue — because it couldn’t.

So in the end, it doesn’t matter what the law says, or even how it explicitly restrains the state on paper. If government needs an unwritten exemption from the law to do what it wants, It will get it.

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November 5, 2013 Posted by | Civil Liberties, Corruption, Timeless or most popular | , , , , , , , , | Leave a comment

LAWS TO PENALIZE DRUG LORDS BEING TURNED ON THE INNOCENT

By Sherwood Ross | August 6, 2013

State “civil-forfeiture”(CF) laws aimed at drug kingpins are being twisted to confiscate the property of people “never charged with a crime,” The New Yorker magazine (August 12) asserts.

Example: a Philadelphia couple fighting a home eviction after their son sold a small amount of marijuana to an informant.

What’s more, a high proportion of the victims appear to be African-Americans and Latinos, the magazine says.

Example: Tenaha, Texas, where victims of CF actions were motorists who had been pulled over for routine traffic stops, “and the targets were disproportionately black and Latino,” The New Yorker quotes one defense attorney as stating.

Under laws once enacted to penalize drug dealers and their ilk, the authorities using CF “are routinely targeting the workaday homes, cars, cash savings, and other belongings” of the innocent, writes magazine reporter Sarah Stillman.

“In general, you needn’t be found guilty to have your assets claimed by law enforcement; in some states, suspicion on par with ‘probable cause’ is sufficient. Nor must you be charged with a crime or even be accused of one,” Stillman adds.

“Unlike criminal forfeiture, which requires that a person be convicted of an offense before his or her property is confiscated, civil forfeiture is a lawsuit filed directly against a possession, regardless of its owner’s guilt or innocence.”

Owners who wish to contest CF often find that the cost of hiring a lawyer far exceeds the value of their seized goods, the magazine reports. “There’s this myth that they’re cracking down on drug cartels and kingpins,” says Lee McGrath, of the Institute for Justice, of Arlington, Va. In fact, the victims “aren’t entitled to a public defender and can’t afford a lawyer and the only rational response is to walk away from your property, because of the infeasibility of getting your money back.”

Since in many states law enforcement authorities can use CF revenue as they like, the temptation of easy money collides with ethical values. Reporter Stillman writes, in some Texas counties, more than 40 percent of law-enforcement budgets come from forfeiture” so that a system “that proved successful at wringing profits from drug cartels and white-collar fraudsters has given rise to corruption and violations of civil liberties.”

“What stands out to me is the nature of how pervasive and dependent police really are on civil-asset forfeiture—its their bread and butter—and, therefore, how difficult it is to engage in systemic reform,” says Vanita Gupta, a deputy legal director of the ACLU.

Jennifer Boatwright, one of the 140 CF plaintiffs in a suit against Tenaha, Tex., said the county district attorney threatened to put her in jail and her son into child protective services, if she did not sign over $6,000 in her car. “Where are we?” Stillman quotes her as saying. “Is this some kind of foreign country where they’re selling people’s kids off?”

(No, Ms. Boatwright: it’s worse than that. This is some kind of country where the president is ordering illegal drone strikes in foreign countries that are killing children by the score.)

Sherwood Ross can be reached at sherwood.ross@gmail.com

August 6, 2013 Posted by | Civil Liberties, Corruption | , , , | 1 Comment

Settlement Means No More Highway Robbery in Tenaha, Texas

By Elora Mukherjee, Staff Attorney, ACLU Racial Justice Program | August 9, 2012

On Friday, the ACLU settled a class action lawsuit, pending court approval, 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.

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.

Thankfully, pending court approval of the ACLU’s settlement, police will now be required to observe rigorous rules that will govern traffic stops in Tenaha and Shelby County. All stops will now be videotaped, and the officer must state the reason for the stop and the basis for suspecting criminal activity. Motorists pulled over during a traffic stop must be advised orally and in writing that they can refuse a search. In addition, officers are no longer using dogs in conducting traffic stops. No property may be seized during a search unless the officer first gives the driver a reason for why it should be taken. All property improperly taken must be returned within 30 business days. And any asset forfeiture revenue seized during a traffic stop must be donated to non-profit organizations or used for the audio and video equipment or training required by the settlement.

To the best of our knowledge, this settlement is unprecedented in not only strictly monitoring traffic stops for racial profiling and other abuses, but also removing the incentives that can lead law enforcement to engage in highway robbery.

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.

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August 13, 2012 Posted by | Civil Liberties, Ethnic Cleansing, Racism, Zionism, Subjugation - Torture, Timeless or most popular | , , , , , | Leave a comment