Montana Viewpoint: Ill-gotten gains and the Constitution

Jim Elliott

As a young man I remember seeing highway signs in the South that said, “Warning, Speed Trap Ahead”. These were not put up by the highway departments, they were paid for by the Automobile Association.

Typically, and quite legally, the speed limit would suddenly change from 60 to 25, which would be accomplished by a speed limit sign mostly hidden behind a bush and a motorcycle cop completely hidden behind a billboard waiting for the next out-of-town driver to shake down.

In this way, the local law enforcement department got a little spending money and you got a ticket. But at least you got charged with something.

In more modern times, federal, state and local law enforcement developed a nifty fund-raising technique called “Civil Forfeiture,” whereby they took money – lots of it, sometimes – from your wallet or seized your car, home or other assets based on the assumption that you may have committed a crime – or might be about to.

You did not have to get a ticket, you did not have to be charged with a crime, let alone found guilty of one, and if you wanted to get your assets back, you had to hire a lawyer to sue the police. It was ostensibly promoted to help fight “The War on Drugs”, but it still flaunted the Constitution.

This is now outlawed in 24 states including Montana, which passed Rep. Kelly McCarthy’s (D-Billings) HB 463 by a wide and bipartisan margin in 2015.

However, a few days ago, U. S. Attorney General Jeff Sessions, thumbing his nose at states’ rights and the Constitution, reinstituted a federal program that overrides state law. Assets may now be seized by local law enforcement agencies under a Justice Department program which basically charges a 20 percent money laundering fee. Local law enforcement can now seize property under federal, not state, jurisdiction, send it in to the U. S. Department of Justice, which takes its cut, and returns 80 percent of the money to the locals.

Pretty slick, huh?

The Fifth Amendment to the U. S. Constitution – which Attorney General Sessions publicly swore to uphold and possibly may even have read – states in part, “No person shall be…deprived of life, liberty, or property, without due process of law….”

Maybe Sessions just considers that as the legendary fine print, but it’s a cornerstone of our legal system and known as the Due Process clause. That means that if any kind of government is going to seize any kind of property from any kind of citizen it has to go through the tedious technicality of getting permission from a court of law. But, like anything, there are ways to get around that.

In civil forfeiture, the law enforcement agency files a complaint, not against the individual whose property they are seizing, but against the property itself, which has no rights. Thus, there are lawsuits entitled, “United States v. Approximately 64,695 Pounds of Shark Fins” and “State of Texas v. $6,037,” which last is the amount that the Texas town of Tehana shook out of the pockets of a couple who were driving through Tehana on their way to buy a car with the cash.

And there’s an item from the July 19, 2017 e-edition of Governing magazine: “In 2016, Oklahoma police stopped a Christian band manager for a broken tail light and ended up seizing $53,000 in concert revenue and charity donations to an orphanage.”

Fortunately, the reaction against Sessions’ move has been bipartisan. It’s good that Republican and Democratic senators and representatives have finally found something they can agree on, but it’s not good that it had to be provided by the highest law enforcement official in the United States, Attorney General Jeff Sessions, who just doesn’t understand that it’s unconstitutional.