04/09/10 – Scott Bullock – The Scott Horton Show

For Antiwar.com and Chaos Radio 95.9 in Austin, Texas, I'm Scott Horton.
This is Antiwar Radio.
Alright, next guest is Scott Bullock.
He's from the Institute for Justice.
And he helped write, with a few co-authors here, this new study, Policing for Profit.
The Abuse of Civil Asset Forfeiture.
Welcome to the show, Scott.
How are you doing?
Great being here.
Thanks.
Well, I appreciate you joining us today.
So, first of all, before we get into the subject matter here, let's talk a little bit about the Institute for Justice.
Can you tell us about it?
Sure.
The Institute for Justice is a non-profit public interest law firm located just right outside of Washington, D.C.
But we have chapters in four states, including in Texas, thankfully.
And we fight a number of different constitutional battles.
We basically take on people's cases who are being deprived of their constitutional rights, and such things as private property and economic liberty and free speech.
And our goal is not only to win for those individual clients, but to try to set broader precedents that will change the law toward greater protection for individual liberty and toward curbing government abuses of power.
Right on.
Well, can you give us some examples of some cases that you've done, I don't know, recently, other than on the asset forfeiture topic here?
Sure.
Well, one of the areas that I've been very involved in and the Institute has been very involved in over the past several years is our fight against the abuse of eminent domain.
That is where the government uses eminent domain power, one of the most serious powers that the government has at its disposal, the ability to throw you out of your home, out of your business, off of your land.
And the constitutional application of that power is for what it says in the Constitution, public uses, things that are owned or used by the public, like a public building or a road or something along those lines.
But in recent years, as very many of your listeners are aware, government has been using this power in conjunction with private developers and private businesses to take the land, oftentimes of modest homeowners and small business owners, to give to developers to put in high-end condominiums, chain stores and office complexes and that sort of thing.
It's a power that's been horribly abused, and we've been fighting back against that.
We did the Kelo case before the U.S. Supreme Court that, even though that was a 5-4 loss, led to a lot of changes in the law, thankfully, in the direction of greater protections for private property owners, and we're still fighting those battles throughout the country.
And we see the abuse of civil forfeiture laws as another example of the undermining of private property rights, and that's one of the reasons why we decided to get involved in this area through the issuance of this report and the follow-up steps we're going to take for that.
On the subject of eminent domain, I think it's important to note that a lot of times people from a left, progressive or liberal mindset would tend to think of property rights in terms of the right of Home Depot to be a greedy corporation and keep all their profits, that kind of thing.
But property rights as such, and as apparently you guys determined to protect it, means the rights of people to keep, say, the small dairy queen that a guy has run his franchise his whole life, and this is his deal, and then the city comes, takes his property, and gives it to Home Depot.
That's where the property rights are being violated.
When you talk about eminent domain, even for roads and stuff like that, it's almost always poor black people who have to move in order for the freeway to come through.
I mean, public use is really no greater of a justification than private use, although the corruption in the private swapping out one private owner for another, obviously, is pretty apparent there.
But it's the property rights of the very weakest in this society that are at risk and that are being violated in both of these things, in eminent domain and certainly in asset forfeiture.
No question about it.
Both of these abuses disproportionately affect folks of fewer means, oftentimes minority groups, those who don't have the power to fight back against these abuses.
So yes, property rights are really for everyone, not just for the big corporations.
And the real problem with this is when government gets involved, especially in the eminent domain context.
I mean, Home Depot and some of the other organizations and companies that we've fought, like Pfizer and like Nissan, they've got a lot of power, they've got a lot of money, but only the government can forcibly remove you from your home.
And so the real problem with this is when these private interests team up with the government to abuse eminent domain power or other cases that we've been involved in.
So all of our cases are against state governments or local governments or the federal government.
Well, and I think I found a good segue here into the civil forfeiture question.
When you talk about eminent domain, it's funny, a lot of people think it's eminent domain.
Like, hey, the freeway is coming through here, out of the way, you know?
That's right.
But it's eminent domain, and it goes back to the very premise of American government, which is that the people en masse collectively own everything and create the government.
And that all this property ultimately is subject to the will of the people through their legislatures, the courts, the executive, before it's subject to the individual rights of the people.
As you said, it's right there in the Constitution.
If the government wants to take your land, as long as it's for a road or a courthouse, they can do so.
And so I just wonder, well, I guess without getting too far into the philosophy of it, I wonder whether that exact premise is what opens the door to this civil asset forfeiture, that ultimately you don't own your house.
You have to pay your property taxes long after you've paid off the bank.
You have to pay your property taxes forever, or they can take it and sell it to somebody else.
It really belongs to the government before it belongs to you.
Is that how the asset forfeiture – is that part of this, or is it a separate theory of law altogether, or what?
Yeah, I mean, we are getting into a little bit of the philosophy of property rights and that sort of thing, and what – from an original perspective as to how much government power we should have.
Well, I'm interested really in what the law says.
Is the law derived from that same principle?
That's right, and what we're trying to do as lawyers and constitutional lawyers, what we strive to do is at the very least impose the limits that are on government that are in the Constitution.
And no question that eminent domain power, for instance, was limited in the Constitution.
The Constitution does recognize it, and it kind of implicitly acknowledges that government has this power, but they say that if you're going to take property, you have to pay people for it, and there's a whole question as to what is just compensation, as it says in the Constitution.
But government can only take your property in the first instance if it is for a public use.
And at the very least, those restrictions have to be respected to have any type of regime that respects individual property rights and tries to limit government power.
There's a lot of other protections in the Constitution for property as well.
It should not be taken away from you without due process of law, and that is, I think, where civil forfeiture laws really undermine that concept in a very significant way.
And it really demonstrates that property rights, unfortunately, are oftentimes given second-class status under the Constitution.
And the attitude seems to be, well, we're just taking away somebody's property.
Therefore, important constitutional rights should not be enforced against these powers.
Well, so I guess I've got zero legal training here.
I'm not sure if I didn't phrase my question clearly or whether it's really just an irrelevancy.
It's not really the same thing.
But what I'm wondering is, does the idea of eminent domain, as in it belongs to the government first, is that where the power to seize assets, other than building a highway or a Home Depot there, in terms of what we're talking about here with the drug war and policing for profit, is that the same kind of legal theory at play or not?
It actually comes from a different historical angle, because forfeiture has been around for a long time.
But it doesn't come from the same type of doctrine that gave rise to eminent domain power.
What this really arose from in America, at least, was – and I don't want to get too much into the weeds on the history of this – but it was recognized even in the early days of the country because the government wanted to enforce certain customs laws.
And it involved maritime activity, things on the high seas.
And because oftentimes the government could not get jurisdiction over people, because the people might have been in England or on the ocean, they said, well, we're going to allow the government to go after certain types of property, maybe property that did not pay the customs taxes or the excise taxes which were in existence at that time.
So it was this kind of narrow, historically based power that arose from what the government saw as the need to enforce these customs laws.
And so it was rarely used outside of that area, except when government got into things like prohibition and got into things like the drug war.
So in essence, the technicalitarians are right that this is some kind of weird Admiralty law with the gold fringe flag and all that?
Well, not that path.
I'm not sure about all those ideas.
But it is based upon these old doctrines that arose under maritime law.
Well, seriously though, it's a difference between – or is it a difference between an Article I court and an Article III court?
I don't know.
I have no familiarity with that.
I'm not sure as to what the exact origins of that are.
Because if you get a parking ticket, you supposedly get a hearing, but it's a hearing that's under the executive branches.
It's in an executive branch office or something, sort of like the FISA court is inside the Justice Department building.
It's not really part of the judicial system.
It's part of the executive.
That's more of a problem with the modern administrative state that arose after the New Deal.
But the important point for purposes of the discussion of civil forfeiture is the fact that under this power, government actually files actions against property itself.
So the government can file a lawsuit against cash, against a home, against your car.
And the property owners are kind of out on the sidelines here, and all of the burdens are placed upon them to try to get their property back, which is exactly the opposite of what the criminal justice system is supposed to be based on, which is the government has to sue individuals directly, has to bring charges against individuals directly.
And those folks have to be convicted in a court of law.
And the premise, the fundamental premise of innocent until proven guilty applies.
That principle is turned on its head when it comes to civil forfeiture laws.
And that's why the power can be so easily abused.
Well, it's really strange too, because I guess if it was criminal forfeiture, then they would have to abide by the Fifth and the Fourteenth Amendments that say they cannot deprive you of property without due process of law.
And all the other protections that come into play when you're involved in criminal proceedings too.
Remember this, under civil forfeiture laws, it is a civil proceeding.
So therefore, most constitutional rights do not apply, and that's been the way the law has been interpreted.
So it really puts property owners at an extreme disadvantage when they are faced with the application of these laws, and they don't have things like the right to an attorney, the right to a jury trial, and all the other things that oftentimes apply when you're in the criminal context.
All right, so if I understand this right, cops bust in the door, the son has a joint, and they seize father's house, bank account, stock options, vehicles, and now he has to hire a lawyer.
The burden of proof is on him to sue the government and civil court to prove that his property is innocent of the crime.
In fact, I guess in the hypothetical, the kid doesn't even necessarily have to have a joint, right?
Just the cops say so.
And so now the burden of proof is on the dad to get all of this stuff back.
Yeah, the burden then switches in most states to the property owner to try to win their property back and to try to claim that they had no knowledge of what the illegal activity or – and this is the law in many places, including Texas – that they should not have known.
So it's almost this burden that's placed upon you to kind of prove a negative, that you either knew or should have known that this action was going on.
Maybe you turned away from it.
And unless you can show those two important aspects, then the government can successfully forfeit your car, your home.
And oftentimes the way these laws are applied today is they forfeit cash.
Unfortunately in the country today, you are almost automatically suspected of wrongdoing if you are carrying what a police officer might consider to be a larger than normal amount of cash.
Now that could be $700, it could be $1,200, it could be $2,000.
Yeah, but then the money just goes off into the general fund to pay off the national debt or something, right?
Oh, under civil forfeiture?
Yeah.
Well, that was a joke.
Yeah, absolutely.
The cops get to buy new machine guns with the money.
Yeah, exactly.
And that's where the title of our report comes from.
Unfortunately, in over 40 states and at the federal level, police and prosecutors get to keep all or most of the property and proceeds that they're out there collecting, which gives them, of course, a direct financial incentive to go out and take as much property as possible.
And that's what's led to a lot of the abuses of these laws.
Yeah, but I think you're overlooking the upside of this, which is that they've really taken the pretty face off of what is essentially a gang of thieves, writ large.
They're not pretending any longer that their job is anything but stealing our stuff.
The police simply are predators out to get us, right?
Well, listen, it is a power that has been horribly abused.
It is in desperate need of reform.
But unfortunately, it's a power that a lot of people aren't even aware of.
It's something that strikes people as just fundamentally wrong once they hear about it.
And it's explained to them similar to the way that people, when they learned about eminent domain abuse, people couldn't believe.
Wait a minute, you can take somebody's home and give it to Costco?
What?
I thought that happened in China.
I thought that happened in places that didn't respect private property rights.
So once people are made aware of this, and that's what this report aims at doing, and we can get a copy of the report on our website at ij.org, learn about this power.
Hopefully the laws will be changed.
We're going to be doing litigation.
We're going to be doing legislative initiatives, grassroots activism to try to educate the population about this, and hopefully it will lead to changes in a wide variety of areas.
It's Scott Bullock from the Institute for Justice.
That's ij.org.
Wow, you guys must have got that URL quick when they opened up them URL box.
Yeah, we were pretty speedy.
Now, funny story, and you may have heard this one.
I read an article about a guy who, back in I think 1971, was sitting on the Michigan Supreme Court, and they ruled that, well, if we're taking a neighborhood from the poor black people who live there, and we turn it over to a giant auto company, which I think the punchline is they never did build the factory there.
All they did was pave over everybody's house in that neighborhood, and then nothing ever came of it.
But anyway, they ruled that if you do so, well, gee, the increase to the tax base that the politicians and cops will be receiving, that amounts to a public use.
So that's your swap out somebody's house for a Costco.
That's the loophole in calling it a public use is, well, but they'll make so much sales tax revenue that it'll benefit us, never mind the fact that they always give them a sales tax abatement for 50 years or something in order to get them to move there in the first place.
And so it gives the lie to the whole process.
But the other punchline is that this same judge was still sitting on the Michigan Supreme Court and ruled in a case that he had been wrong before.
And, man, he wished he hadn't have done that, because that Michigan Supreme Court case was cited as precedent all around this country and has institutionalized the idea that the local city council can steal whatever they want from whoever they want and give it to whoever they want.
Well, the good news about that, that was called the Poletown case.
I know exactly what you're talking about.
That was back in the early 1980s where they destroyed a whole neighborhood, gave the neighborhood then to General Motors.
Well, in the lead up to the Supreme Court decision, the Kelo case, the Michigan Supreme Court had a chance to reconsider that.
And, thankfully, and I think it shows that the law is changing toward greater protections for property owners in this area, the Michigan Supreme Court unanimously overturned the Poletown decision saying, we got it wrong.
The eminent domain cannot be used just to increase our tax revenue or try to improve the economy.
And, thankfully, that's been happening in many other states now in the wake of the Kelo decision, which really woke up a lot of people to government's abuse of this and said, God, we've got to put a stop to this.
So, thankfully, the Michigan Supreme Court corrected course after that appalling decision back in the early 1980s.
Yeah, kind of too little too late, though, because, as you say, the Kelo decision is the one where the U.S. Supreme Court said, yeah, go ahead.
Yeah, that's right.
That's right.
And most of the time what happens once the Supreme Court rules on something, then all the state courts line up and people just kind of fall in line.
And the exact opposite happened.
And after Kelo, there's been this enormous backlash to it.
And a lot of states have passed laws to protect property owners.
Several haven't done as much as they should, but a lot of states have put these protections in place.
A lot of state Supreme Courts, like Michigan's and others, have stepped up and started issuing more favorable rulings toward property owners.
And people are just really mad about it.
And when they hear about it, they rally to try to put a stop to it.
And we've been working with citizens throughout the country to try to put the brakes on this.
All right.
Now, back to the civil forfeiture and the drug war really is what this is all about more than anything else, I guess.
I'm sure they expand their uses of it as much as they can into different areas.
But primarily this is about the war on drugs in this country.
And I was wondering if you could do me a favor and just shock the hell out of the audience with some numbers here.
Because I guess if you don't know anybody whose house got seized for no reason, it's not like 2020 cares about this and talks about it on Friday night or whenever that shows on these days.
So is it really the case that this is a problem, that innocent people are getting their property stolen in the name of a pot seed or something?
Well, read the report.
And I think if listeners read the report, they'll see that this is a very real problem that has really been continuing on in the past even decade when there were some reforms that were tried back in the early 2000s.
But it really didn't slow down the use of civil forfeiture at all.
The federal government right now in its forfeiture fund for the first time has over a billion dollars that is sitting there waiting to be used for law enforcement purposes that's been forfeited from property owners throughout the country.
One study shows that at the federal level at least 80% of the people whose property have been forfeited have never been convicted of any type of criminal activity.
Because remember, in civil forfeiture, you don't have to be convicted of a crime in order to lose your property.
So it's really a shocking amount of forfeiture that goes on, and there have been shocking abuses throughout the country.
And when the laws try to be changed, especially when this profit incentive has been attacked, law enforcement is very adamant about not taking away the amount of money they're able to make from this.
So it's all the more reason why these laws have to be changed.
You know, somebody in the comments section, when he heard me talking earlier in the week about how you were going to be on the show today, he said, Hey, come on, man, all this asset forfeiture is helping keep suburbanites like me's taxes down.
Well, yeah, you know, I mean, I think that's one of the ways that police try to justify this.
We're paying for our own activities, but we really don't want to have cops and prosecutors being paid on commission.
You know, they're supposed to be about doing justice, not about trying to go out and make as much money as possible.
You know, that's thought that should not be the motivation.
And besides, they get their tanks free from the Pentagon anyway.
Yeah.
And well, you know, there's a lot of grants that are available to this.
I mean, if we're going to have forfeiture, it should at least go into the general revenue account of the state.
And then elected officials can decide how the money is going to be, how that money is going to be spent.
It should, of course, be kept with people.
But, you know, if we're going to have this type of system, the elected officials should be deciding how this how this money is spent.
All right.
So could you say how many thousands of people a year get their property seized in this manner in this country?
Well, besides that, I mean, one of the things that the report documents is the lack of documentation in so many states on forfeiture laws.
Only 29 states require states to report how much forfeiture is going on right now in several states.
There's very little accountability.
There's very little information that's available.
And so, you know, folks are out there, law enforcement folks are out there being able to take this property away.
And people just don't even know, well, what do you see and what it's being used for?
Where is it going to?
Because a lot of states just don't require those numbers to be kept.
So it's really we try to get the best information we could in this report.
The numbers are already pretty shocking.
But the one thing we do know is that it's an undercount of how much of this is actually going on.
Tell me real quick about this guy, this Texan fighting to regain his truck.
Yes, we just filed a lawsuit in Houston this week on behalf of a man who sold a truck to to a person.
He sold it to him on credit.
So the person we represent, still the owner of the truck, the guy hadn't paid for it yet.
The man named Ali has kept the title, kept the registration.
Well, unfortunately, the driver of the truck was pulled over for driving while intoxicated.
He was intoxicated.
He pled guilty.
He went to jail.
But the government seized this man's truck and filed a forfeiture action against it.
And the name of the case is State of Texas v.
1, 2004 Chevrolet Silverado.
Again, the action is against the property itself.
And we're using this case to try to better protect innocent property owners like our client, Mr. Ali, in this case, and also to end this perverse financial incentive that's at the heart of these laws in Texas.
Ninety percent of the property and proceeds goes right back to police and prosecutors.
And this lawsuit aims to stop that as well.
And this case will be playing out down in Harris County over the next several months.
So hopefully this lawsuit is the first step toward changing the law.
You know, I met a D.A. from Harris County, and she said it was everybody but her, of course, an assistant D.A.
And the slogan was, well, if they're really innocent, they'll get out on appeal.
That's how they do things down there.
All right.
Thanks very much.
Scott Bullock from IJ, the Institute for Justice.
Appreciate it.
Thank you.