Texan Challenges Civil Forfeiture Law

Police can keep your cash, car and other property, regardless of whether you've been convicted of – let alone charged with – a crime.

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It was the BMW's missing license plate that led the troopers to the guns, drugs and cash inside the car.

The driver, stopped on I-45 outside Conroe, might have just gotten a citation and been sent on his way that March day in 2011 had he not fibbed to the cop about his criminal record. When the trooper asked 32-year-old Joshua Lee-Michael Watson if he'd ever been arrested, Watson said no. But a quick database check told the trooper otherwise: Watson was in fact on probation for a misdemeanor property theft the year before.

Joshua Lee-Michael Watson was acquitted on criminal charges, but prosecutors still had leverage in civil court.
Courtesy of Montgomery County Sheriff's Office
Joshua Lee-Michael Watson was acquitted on criminal charges, but prosecutors still had leverage in civil court.
Law enforcement seized a cache of guns, money...
Courtesy of Montgomery County District Attorney's Office
Law enforcement seized a cache of guns, money...

Suspicions aroused, the trooper asked Watson if he could search the silver 2004 BMW. The trooper radioed the nearest constable's office and requested a K-9 unit. The resulting search yielded the following: $33,027 in cash (wrapped in tinfoil and stuffed in a plastic bag); an AK-47 assault rifle with a hundred-round drum magazine; an AR-15 assault rifle with a 30-round magazine; a loaded stockless pump-action shotgun; a loaded .40-caliber pistol; a .45-caliber pistol; and a .22-caliber rifle. Officers also found two plastic bags full of bullets; police and private investigator badges; and a black bag — with the word "POLICE" written in white on the sides — containing gear labeled SWAT but really just made out of plastic. The search also turned up an assortment of morphine and steroid pills. Dude should've just sprung for a license plate.

Watson was arrested and charged in Montgomery County District Court with money laundering, felony possession and misdemeanor unlawful carrying of a weapon. He was facing 30 years in prison.

At Watson's June 2012 trial, his attorney provided an explanation for everything. The guns? Properly registered, and Watson had just been at the firing range. The pills? They were prescribed to him for pain resulting from a car accident and to his mother for pain resulting from cancer eating the bones in her face. The bulk of the cash was a settlement resulting from a lawsuit over that same car accident, and Watson just didn't trust banks. Besides, there's nothing illegal about having cash. The badges and faux-SWAT gear might have seemed a bit odd, sure, but there was no evidence that he had used them to impersonate an officer.

The jury acquitted on all counts in about three and a half hours.

Watson was a free man, but prosecutors weren't giving up so quickly. If the state couldn't get Watson, it could at least go after the seized items.

At the same time prosecutors had filed charges against Watson in criminal court, they filed charges against "$33,027.00 U.S. Currency and Miscellaneous Personal Property" in civil court. This procedure, called civil forfeiture, allows the state to seize a person's property regardless of whether that person has been convicted of — let alone charged with — a crime. After the property is seized, the state may then file a lawsuit against it. Unlike in criminal court, where prosecutors must prove a defendant's guilt beyond reasonable doubt, the burden of proof in civil forfeiture is based on the preponderance of evidence.

If the state prevails, law enforcement gets to keep the cash and, in some cases, auction off the loot. Critics say this gives authorities a profit motive — a true incentive to abuse a law that by its very nature already turns the Constitution on its head.

In April 2012, lawyers in a Harris County civil forfeiture case figured that, instead of just griping about the law, they'd challenge it. In April 2012, they argued the law's constitutionality before the 14th Court of Appeals. While they wait on a ruling, prosecutors throughout Texas are suing stacks of cash, and, the lawyers say, officers are policing for profit.
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Here's one reason the civil forfeiture law in Texas is troubling: A person doesn't have to be charged with or even convicted of a crime to lose his money or property forever.

The law was implemented in 1989; prior to that time, according to a 2009 report by the Senate Committee on Criminal Justice, "Law enforcement had to return much of the seized property to the criminal actor and, as a result, the State was basically rewarding criminals by allowing them to keep that which they had garnered from their criminal activities."

And while the law allows a person to assert an "innocent owner" defense, the situation is not comparable to a criminal case, in which the burden of proof falls on the state to prove that a crime occurred. In a civil forfeiture innocent owner defense, the burden falls on the owner of the seized property to prove that the property isn't contraband. (The Senate Committee's report took issue with the burden-shifting, calling it "an unfair advantage," and recommended that the burden fall on the state.)

Prosecutors can clog the process during discovery proceedings, requiring owners to produce ancient financial documents and countless other personal records not even associated with the property. The hope seems to be that the owners will just give up and go away.

Charles "Brad" Frye is one Houston attorney who handles civil forfeiture cases, if only because they really seem to piss him off.

Pointing to what he considers the law's inherently flawed logic, he says, "Contraband can only be property that's associated with a crime, right? Well, the state doesn't have to prove beyond a reasonable doubt that there was a crime."

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4 comments
PenHead
PenHead

why would you write an article about challenging civil forfeiture laws and concentrate on deframating a man's character because of some domestic dispute he had in the past? Zaher El-Ali was just trying to make an honest buck by selling his car, he didn't break any laws and the cops still seized his property. Zaher El-Ali couldn't even afford a lawyer and I'm thankful that someone stood up for him and the unfortunate circumstances that fell in his lap. Craig Malisow youre a piece of shit -- quit your job and go work for the crooked fucking cops!

marcy
marcy

As this article also points out the police confuse "unusual" with suspicious.  For example, if I were found to be carrying around 500 gift cards totaling $100,000 in apparent face value the police would consider that to be "unusual" and demand an explanation even though there should be no need for someone to explain why they are in possession of $100K of gift cards, a $100k bank account or $100k in cash.  

 

It is certainly unusual to be have any of those but it would also be unusual to pull over a woman with one leg, one arm and red hair.  That shouldn't demand an explanation either.

 

Drive around with a dozen semi-auto rifles, your prescriptions and $50k in cash in your trunk and it would be an almost certainty that the police would seize it all if they found it, they need nothing more than their belief that by golly someone with a lot of guns and cash MUST be up to something criminal.

 

Profiling of another sort.

 

marcy
marcy

The police have been turned into pirates, it's bad policy to not only let the state take it but actually let the police agency that seized it keep it.  Pirate booty isn't what the police should be after.

TOLDYA
TOLDYA like.author.displayName 1 Like

Montgomery County = Facism the end

 
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