Police and prosecutors have been too happy to trample the rights of law-abiding Americans by abusing the asset forfeiture process. But Nevada authorities’ zeal to steal from unsuspecting citizens for their agencies’ gain compelled them in at least one instance to abuse the justice system itself.
Last month, Senior U.S. District Judge Larry Hicks ordered federal prosecutors to return to a Hawaii man $167,000 that was illegally seized by Elko County sheriff’s deputies in a January 2013 traffic stop, and the judge blasted the U.S. attorney’s office for deliberately withholding evidence that the stop was improper. The case is much more than a reminder of the need for forfeiture reform. It is a clarion call for authorities who stomp on the Constitution to be held accountable for willfully violating their oaths to defend it.
Asset forfeiture laws were enacted to help authorities prevent criminals from keeping the proceeds of their offenses and provide restitution to victims. But federal, state and local police have warped the law’s application to the point that they now can take anything from anyone if they merely suspect that assets were used or might be used in the commission of a crime — and they can do this without so much as writing a traffic citation, let alone making an arrest and obtaining a conviction. Officers can keep seized cash and property for their departments to fund equipment and training. The financial incentive to make such seizures has rightly been condemned by civil libertarians as policing for profit.
As reported by the Review-Journal’s Jeff German, Straughn Gorman was victimized by this racket while driving a motor home west on Interstate 80. He was stopped by the Nevada Highway Patrol for driving too slow in the fast lane. Troopers asked to search the motor home, but Mr. Gorman refused. He was allowed to continue his trip without a citation.
Troopers subsequently arranged to have Elko County deputies stop Mr. Gorman down the highway and search the motor home with a drug-sniffing dog. The search turned up no drugs, but lots of cash. Police seized the money on the theory that he was going to buy drugs with it, and took his laptop computer and the motor home as well — without arresting Mr. Gorman or giving him so much as a ticket.
However, in the court papers filed to defend the asset seizure, prosecutors did not mention the first traffic stop, which provided troopers with no probable cause to search the motor home. The second stop was a result of Mr. Gorman’s refusal to consent to a search during the first stop. So police violated Mr. Gorman’s Fourth Amendment rights, then prosecutors tried to hide that violation from judicial review.
“The court expects and relies upon the United States attorney’s office to be candid and forthcoming with material information. … That did not occur here,” Judge Hicks wrote.
Asset forfeiture laws turn the Bill of Rights upside down by presuming property guilty until proved innocent and by shifting the burden of proof from the prosecution to the defense. But that imbalance isn’t quite rigged to the satisfaction of law enforcement. They had to try to hide pertinent facts from the court.
“We’re following the letter of the law,” Nevada U.S. Attorney Daniel Bodgen said of civil forfeiture in general. If that were the case, Mr. Bogden, you would have prevailed in Judge Hicks’ courtroom, not had your lunch handed to you. You are most definitely not following the law, and Judge Hicks would be perfectly justified in seeking sanctions against your office and your attorneys, including discipline from the bar. We hope he does.
The Justice Department has limited asset seizures in recent months as more such abuses have been made public, but there’s no telling how many years-old cases similar to Mr. Gorman’s are out there. Bills to reform the process are before Congress. The Nevada Legislature had a chance to abolish asset forfeiture altogether, but inexplicably watered down strict limits originally contained in Senate Bill 138. Lawmakers should revisit the issue in 2017.
Bravo to Judge Hicks for squashing the kind of injustice that has no place in a free society.