One of America's leading authorities on technology and telecom policy, Motley is a writer, television and radio commentator, political and policy strategist, lecturer, debater, activist, and policy advisor to The Heartland Institute.
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Yet another ongoing government authoritarian problem is the rampant abuse of civil forfeiture. Which is where federal, state and local Leviathans seize personal property of all sorts. Often when someone is merely suspected of – not charged with – a crime. Often when the tie between the property and any criminal activity is at best tangential.
These people often never get their property back – even if charges are never filed. Because the laws are written by government to rig the system – for government. In a criminal case, you are innocent until proven guilty. In a civil forfeiture case, this fundamental freedom tenet is turned on its head. The burden of proof is on the property owner – they must convince the government that they obtained the government-seized property lawfully. And often even that isn’t enough. From 1998:
Police stopped 49-year-old Ethel Hylton at Houston’s Hobby Airport and told her she was under arrest because a drug dog had scratched at her luggage. Agents searched her bags and strip-searched her, but they found no drugs.
They did find $39,110 in cash, money she had received from an insurance settlement and her life savings; accumulated through over 20 years of work as a hotel housekeeper and hospital janitor.
Ethel Hylton completely documented where she got the money and was never charged with a crime. But the police kept her money anyway. Nearly four years later, she is still trying to get her money back.
Trying to get your property back often costs a lot of money – going to court ain’t cheap. And you’re handicapped – because a lot of what you have is being held by government. And you’re going up against an over-funded entity that doesn’t care about the cost of defending its seizure. Because it isn’t spending its money – it’s spending ours. If it loses, no big deal. If it wins – it profits off your property. Heads it wins – tails we lose.
And property seizure is big money for government. Let’s look at just the federal Justice Department – and its Audit of the Assets Forfeiture Fund and Seized Asset Deposit Fund Annual Financial Statements Fiscal Year 2013.
Total assets, which present as of a specific time the amounts of future economic benefits owned or managed by the AFF/SADF, increased in FY 2013 to $6,388.0 million from $5,970.3 million in FY 2012, an increase of 7.0 percent. If seized assets, which are not yet owned by the government, are not included, the adjusted assets of the Fund increased to $4,952.7 million FY 2013 from $4,433.8 million in FY 2012, an increase of 11.7 percent.
This is attributable to realizing a stable level of forfeited assets in FY 2013 from FY 2012, thus indicating a strong current and future potential stream of assets flowing into the AFF.
“$6,388.0 million” is $6.388 billion. That’s a lot of coin. And did you get that last sentence? Seized property has become a budget line item. Revenue on which the government is counting going forward – regardless of what actual future crimes will actually yield in future takings. That’s a dangerous prescription – for more and more at-best-questionable seizures.
Like the one which Texas’ Jerry Shults is currently suffering. Shults is a Vietnam veteran – and a very successful entrepreneur. With interests in real estate management, rental hunting-fishing lodges, a Fort Worth theater – and ownership of thirteen Gas Pipe smoke shops.
In a complaint filed in federal court… prosecutors say employees of Shults’ Gas Pipe on Maple Avenue in Dallas began manufacturing substances known as K2 and Spice in a room there by early 2014….
K2 and Spice were legal. Gas Pipe sold them as “herbal incense.” But in 2012, President Barack Obama signed a law designating them synthetic cannabis – and outlawing them. Shults’ store was allegedly breaking this new federal law.
Want real weed? Which has been breaking federal law for decades? Head to Colorado. Or Washington state. Or Washington, D.C. Or…. These states (and the District) recently legalized it – and the Feds aren’t bothering them.
Shults opened his first Gas Pipe in 1970. Gas Pipe has for for forty-four years sold LOTS of stuff – most of which has absolutely nothing to do with any of this. Shults has spent the last half century earning and accruing assets and capital – much of it with other businesses that have nothing to do with Gas Pipe.
So how is this cavalcade of property seizures even remotely justified? Shults is out around $16 million – including about $3 million in pension funds for Gas Pipe employees, millions more in decades-old corporate investments, personal savings and retirement accounts and personal automobiles.
The Feds even took four commercial aircraft and a fishing boat Shults has for his rental hunting-fishing lodges – in Alaska. Taking the fruit-from-an-allegedly-poison-tree argument to absurd geographical lengths. And the Feds have placed liens on all eleven Texas Gas Pipes (the two in New Mexico were spared).
Taking a half century’s worth of stuff – because one part of a broad portfolio was allegedly doing something the government just two years ago deemed illegal – is overkill on stilts. Even taller stilts – this massive government grab took place in June, and as of this writing the government hasn’t yet actually charged Shults with anything. They just still have all his stuff.
Look, I’m a retired musician – but I’ve never done any drugs. I actually don’t think pot should be legalized (decriminalized, perhaps).
This isn’t about my thoughts on fake weed. Or real weed. Or incense. This is about the egregious property seizure overreaches we’ve seen – with Shults, and for decades prior.
In defense of free speech – ensconced in our First Amendment – Voltaire said:
I do not agree with what you have to say, but I’ll defend to the death your right to say it.
I may not be overly fond of some items Mr. Shults sells (I really don’t like incense) – but I will certainly stand up against the incredible government abuses he is currently having to endure.
We all should.