Congress is launching a new campaign to save America from burnt
flags. Both the House and Senate Judiciary Committees are charging
forward with a constitutional amendment to allow flag
burners to be punished — as if this is the most important legislation
Congress could consider.

Yet, at the same time it wraps itself in the flag, Congress continues
criminally negligent in defending the Bill of Rights. Federal, state,
and local law enforcement are confiscating property
from citizens without any evidence of wrongdoing, without a trial, and
without the slightest concern for due process.

Nowadays, a person has a right to his property, unless and until some
government employee makes an accusation against him; then the government
can take the title. Federal seizures of private property have
skyrocketed in the last two decades. Federal agents have gone overboard:
a September 1992 Justice Department newsletter noted, “Like children in
a candy shop, the law enforcement community chose all manner and method
of seizing and forfeiting property, gorging ourselves in an effort which
soon came to resemble one designed to raise revenues.” Just last year
the Justice Department confiscated 42,454 cars, boats, houses, stacks of
cash, and other items of private property — booty valued at
$604,514,733.

Hearsay evidence is all that is required: A mere rumor or scrap of
gossip can justify government seizure of a person’s most valuable
belongings. Last December, the Drug Enforcement Agency
confiscated $19,000 from a professional basketball player who was
stopped and searched while driving in Ohio; a drug-sniffing dog alerted
to the money a state highway patrol officer found in the car. (The DEA
was brought in because state law did not allow the highway patrol to
directly confiscate the money; forfeiture routinely involves collusion
between multiple law enforcement
agencies to evade restrictions on their power). However, studies have
shown that up to 70 percent of all currency is tainted with some type of
drug residue. But such taints are sufficient pretext for government
agents to seize the wallets of anyone carrying more than a few hundred
dollars.

Victims of government confiscation have scant hope of justice. A
Washington, D.C., policeman arrested Carolyn Mefford in 1993 and seized
$3,709 from the Kentucky woman who was carrying a protest sign in a
Washington park. After Mefford was released from a mental hospital three
months later, she sought to get her money back. But the policeman who
arrested her stole the money from a police storage area and, after the
theft became known, committed suicide. Lawyers for D.C. government
successfully argued in small claims court that the city owes Mefford
nothing, since stealing was not part of the lawman’s job description.

Asset forfeiture abuses have been a national scandal for almost a
decade. A federal appeals court complained in 1992, “We continue to be
enormously troubled by the government’s increasing
and virtually unchecked use of the civil forfeiture statutes and the
disregard for due process that is buried in those statutes.” Yet,
because many congressmen fear taking any action that might
offend law enforcement agencies — the primary profiteers of the abuses
— the outrages continue.

Unfortunately, the Supreme Court has done little to curb these
abuses. The Court decreed in January that innocent owners have no right
to information on how to recover cash or other property wrongfully
seized by government agents. Justice Anthony Kennedy, writing for a
unanimous court, declared that “the Constitution does not demand that
the owners be given help on retrieving their money or property.” Justice
Kennedy stressed that the police had “lawfully seized” the cash at issue
from a California couple during the search of their home. (The
homeowners were not accused of violating any law and had no criminal
records.) But all this means is that the cops saw the money, they took
it, and since they were law enforcement, the seizure was automatically
lawful. According to the Supreme Court, a list of what is confiscated is
all that the victim is entitled to.

Earlier this month, the Supreme Court ruled that police officers do
not even need to get a warrant from a judge before confiscating a car
suspected of having been used to deliver narcotics. In the case of
Florida vs. Tyvessel White, Bay County, police were allowed to
confiscate White’s car more than two months after the alleged crime had
been committed — even though the police
made no effort to charge him with that crime. It would be difficult to
craft a better license-to-steal for law enforcement.

Forfeiture is increasingly corrupting law enforcement. The Justice
Department announced in 1996 that local and state law enforcement
agencies would be permitted to use money they received from forfeiture
funds to pay police salaries. The decision was harshly criticized by
some law enforcement officials who believe it would spur “bounty
hunting” forfeitures — policemen devoting their time to seizing private
property rather than protecting private citizens. Scandals have occurred
across the country after discoveries that seized money was pocketed by
cops.

House Judiciary chairman Henry Hyde is sponsoring a bill to trim some
of the worst abuses of forfeiture; Hyde has an array of conservative and
liberal co-sponsors. Hopefully Hyde will stick to his bill this time —
and at least begin the process of reform. In the last Congress, Hyde
abandoned his own forfeiture reform bill after the Justice Department
protested that it would reduce lawmen’s power to seize property. Hyde
then obligingly championed a Justice Department-written bill to expand
government’s confiscatory power. Hyde later again took up his own bill
but made little or no effort to shepherd it into law. Forfeiture reform
supporters were dumbfounded at Hyde’s flip-flop and many questioned
whether the congressman had the courage to carry forfeiture reform to
the end.

The House of Representatives is expected to soon vote on forfeiture
reform. No amount of flag-waving can compensate for congressmen’s
failure to protect citizens from the rapacity of law
enforcement. Hopefully the forfeiture reform effort heralds a brave new
era in which congressmen actually begin noticing how government abuses
private citizens.


James Bovard is the author of Freedom in Chains: The Rise of the
State & the Demise of the Citizen (St. Martin’s Press, 1999). To see
first chapter of Freedom in Chains and get further information on his
books, point your browser here.

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