A Response to the Toledo Blade – Reform Asset Forfeiture

I write in response to the October 16, 2015 editorial entitled, “Reform Asset Forfeiture.” The editorial discussed two proposed pieces of legislation working their way through the Ohio and Michigan legislatures. The goal of the legislation is to limit asset forfeiture to instances only after the “owner” has been convicted of a crime, and even after conviction, to further raise the burden of proving forfeitability to clear and convincing from its current standard of a preponderance of the evidence.

I have worked on more than 100 asset forfeiture cases over the last several years – both as a federal agent and as a Special Assistant U.S. Attorney in one of the country’s busiest districts. It is frustrating to work in a field of the law that very few understand and many others distort. Most anti-forfeiture articles point to stories of supposed abuse by police agencies in the misuse of the seized assets, or the alleged lack of due process. The former is exaggerated and the latter is just plain wrong.
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Jesus was not a Businessman

An article was brought to my attention today, which originally ran April 13, 2015 in the New York Times. The article reports on Gravity, a payment processing company in Seattle. Apparently, Gravity’s co-founder, Dan Price, decided to raise the minimum starting wage at Gravity to $70,000 per year. He intends to raise wages over a three year period.

As you can imagine customers, commentators, and employees had something to say about the move. And not everyone was happy about it. When asked why he decided to make this change, Price discussed the income inequality between employers and executives. To his credit, Price has reduced his $1M per year salary to $70,000, something most do-gooders would not even begin to consider.

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Civil Asset Forfeiture 101

I came across an article today at ZeroHedge.com entitled, “Land of the Unfree – Police and Prosecutors Fight Aggressively to Retain Barbaric Right of Civil Asset Forfeiture.” Like most articles on the topic, it is replete with misstatements of the law, conflation of state and federal laws, and an ignorance of history. But before I get into the article, let me first tell you what civil asset forfeiture (“CAF”) is.

CAF is a legal mechanism by which property is seized by a governmental agency (I’m going to confine my comments to Federal law) on the basis that the property is proceeds of a criminal activity, or was used to facilitate the criminal activity. Let me give two examples to demonstrate the difference. If a crook steals your credit card info and uses it to buy a diamond bracelet, that bracelet is “proceeds” of the act of stealing and using your credit card information (See, 18 U.S.C. 1029). If a drug smuggler hollows out portions of his car in order to conceal illegal narcotics, that car is “involved in” the offense because it facilitates the smuggling. (See, 21 U.S.C. 841).  The statutes used by the federal government to seize property in this way are 18 U.S.C. 981 and 21 U.S.C. 851. (Customs and Border Protection also seizes property for customs violations pursuant to 19 U.S.C. 1595a.) The forfeiture statutes have very specific processes for seizing and forfeiting property. It is not just a matter of an agent wanting to drive a nice car, so he takes one from some innocent, unsuspecting citizen without cause. That doesn’t happen. Do federal agents get it wrong on occasion? Sure. Accidents happen. But mistakes are rare given the scope of the program.

Now, to the article. Rather spend a paragraph on each thing the author (Mike Krieger) gets wrong, I’ll bullet-point them and provide a brief explanation of how he’s wrong. Here we go…

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Is Hillary Qualified?

This week, Hillary Clinton announced her candidacy for the Presidency. She has been labeled by many as the presumptive Democrat nominee. But I’ve always been struck by the question of “why?” Why is Hillary so seemingly beloved by Democrats? What is it that she’s done to warrant their affections? What are her qualifications?

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Hobby Lobby And Contraception

It seems the older I get, the less tolerant I become of the things that irritate me.  One of those things that has become a flashpoint for me is baseless rhetoric.  You know what I’m talking about…Republicans are Nazis…Liberals want a communist utopia, etc, etc.  Election years are terrible for this sort of stuff, but a close second is when the US Supreme Court rules on a controversial issue. Depending on what side you fall, the decision is either a cause for celebration or mourning. Today, if my Facebook feed is any indication, is one of those days.

Let me recap it for you. The Supreme Court issued its decision in Burwell v. Hobby Lobby, Slip Op. No. 13-354 (June 30, 2014), which decided whether a closely-held corporation could opt out of a government mandate regarding the provision of certain birth control drugs on the grounds of the religious beliefs of the corporation’s owner. In this case, Hobby Lobby is a family-owned business whose owners are devoutly religious. Among other beliefs, they oppose abortion. At issue was whether Hobby Lobby should be compelled to provide four methods of contraception (Hobby Lobby will continue to provide the other 16 drugs that prevent fertilization in the first place), which prevent the implantation of an already fertilized egg.  Hobby Lobby’s owners argued that their beliefs are that life begins at fertilization and that if they are forced to provide four certain contraceptives, they would be indirectly supporting the killing of a living being, which they refused to do.

The Court held that the Religious Freedom and Restoration Act prevented the Department of Health and Human Services (the agency responsible for promulgating the rules for Obamacare) from requiring a “closely held corporation” from violating the religious beliefs of its owners. The Court said that owners of closely held corporations would otherwise be left with the choice of violating their religious beliefs, or forgoing engaging in a business enterprise. The Court also held that the definition of “persons” under the RFRA includes corporations for two reasons: (1) the statute specifically states as much; and (2) “person” has included corporations for decades and there was no intent by Congress to depart from that definition. But more specifically, corporations have been held to “exercise religion” for at least 50 years via prior Court decisions. So the notion that this case is somehow an anomaly or a departure from existing law is unsupported by the facts.

Now that I’ve given a down and dirty recap of the case, let me get back to the topic of rhetoric. According to some on social media and the traditional media, this case represents an “assault on women’s reproductive rights;” “the most tragic display of jurisprudence in history;” or the “privatization of personal sexual choices.”  Each of these assertions, however, is complete and total nonsense.

This decision is a narrow one. It applies only to closely-held corporations which are most often in the form of general partnerships, sole proprietorships and LLC’s.  It does not apply to public corporations or those owned by investment groups.It does not “set women back.” This decision does not take away a right that previously existed, nor does it require corporations to get involved in your sex life. The particular drugs challenged by Hobby Lobby are not the types of birth control that women use for other conditions. These drugs prevent implantation of a fertilized egg, which the owners consider abortion. Of course, someone will drag out the proverbial victim of rape or incest, but those instances are exceedingly rare. And if a woman is found in that terrible circumstance, there are numerous ways to obtain the pregnancy ending drugs at reduced cost or free. The overwhelming majority of abortions (approximately 98%) are ones of convenience. Maybe you might argue that there are good reasons for ending the pregnancy, but that’s not the point of this post. The point is to say that the rhetoric surrounding this decision is completely overblown.

Most of the comments I’ve seen are from individuals that I have no doubt, have not even bothered to read the Court’s opinion; have complete lack of knowledge about the history of corporate personhood; and ignore the economic realities surrounding the ease of acquiring birth control in many different forms. Unfortunately, many of the people espousing these uninformed comments are the same people who regularly complain about the partisanship in politics today. They’ll whine about work not getting done in Congress, but then accuse Republicans of obstructionism, racism, ageism, and cronyism, all the while ignoring the same failings by Democrat politicians. I just wish people started thinking about the “beliefs” they have; why they have them; and whether one belief contradicts another. I also wish people would start being honest about what they really think. Stop telling me you want to work together when what you really mean is that you’ll work together so long as we do what you want.

It’s a bit of a ramble, I know. You’ll get over it.

It’s Not The Guns.

A twenty-something year old guy stabbed three people to death and fatally shot three more over the weekend in a small town near Santa Barbara, California. As one might expect in the immediate aftermath of gun violence, many were calling for tighter gun-control laws. Unfortunately, this is where most discussions begin and end. Occasionally there will be stories about mental health and the lack of mechanisms in place to identify and properly treat those who might become the next Adam Lanza or Elliot Rodgers. But by and large, the discussion centers on control and regulation. What is also apparent is that many who espouse these anti-gun views are people who have little to no experience with guns or killing, or maybe not killing exactly, but the mindset needed to kill.

“The mindset need to kill? What do you mean by that?”

There is a long history on men in combat who refused to fire their weapons. The problem is as old as warfare. During the American Civil War, it is estimated that less than 10% of soldiers fired their weapons at enemy soldiers.  In World War II the number ticks up to 15-20%. In Vietnam the percentage ticks slightly higher. But until the 1970’s our training did not fully equip a soldier to kill the enemy, strange as that may sound.

Most people have been so inundated with images of soldiers killing bad guys, usually without hesitation and, in many cases, with a bit of pleasure. But this is far from reality. It’s difficult to explain to someone who has never been trained to kill, or to shoot to kill. Today, modern military and law enforcement training includes simulations that are intended to desensitize individuals to the act of killing another human being. Those simulations involve life-like targets, some are 3-dimensional, others are digital, and most training isn’t complete without live fire simulations using guns and rounds that look, feel and sound like real weapons. The training also regularly includes one-on-one (or two or three) physical combat where one enemy pulls a weapon, requiring the trainee to react.

Going through months of this sort of training changes your mind. It conditions you; makes you think differently about what it means to kill someone. I had (and continue to have) nights where I dream of killing. Every place you go, you survey the room, the exits, the people. “If something breaks bad, who can I take and who can’t I…How do I get out of here in a hurry?” And you never sit with your back to the door. You can’t. Something might happen and you’ll need to do something.

People who have never gone through this sort of training, can’t truly understand what it feels like. But some people, a growing number, have become just as desensitized to killing. I used to scoff at the notion that violent t.v., movies and video games had any impact on how a person ultimately acts in real life. But there have been more than a thousand (yeah, more than 1,000) studies that tell me I was wrong. In particular, when violent media is regularly viewed by children and teenagers, the effects on their brains can be permanently damaging. Of course, there is no study that categorically proves a direct causal link between violent media and violent youth, but the numbers are not encouraging.

Over the last twenty years, teenage boys (who, unsurprisingly, are most likely to engage in violent media of all kinds) have been increasingly responsible for various forms of violence, especially gun violence. The Columbine, Aurora, Newtown, and Isla Vista shooters are examples. All of them were avidly engaged in violent media. Of course, not all teenage boys who play Grand Theft Auto are going to kill their classmates, but as Pat Brown, a criminal profiler, once wrote, “Violent video games can be a part of this picture as they lend to the loss of empathy that is a hallmark of psychopathy and young children viewing repetitive violence and participating in “killing” via video games are living in an unhealthy psychological environment. Furthermore, teenagers who are already psychopathic and then spend a great deal of time with violent video games are being inspired to act out their psychopathy in a similarly violent manner.”

I don’t mean to say that violent media is the only issue not addressed. There are cultural issues to deal with. One need only look at the FBI’s crime statistics to see troubling trends concerning the commission of violent crimes. My overriding point (which I know I haven’t articulated all that well), is that violent crime is a far more complicated matter than simply “getting rid of guns.”


Nuance Is Dead

I should have known. The signs were all there, but I just couldn’t believe it was true. I was wrong. Nuance is dead.

Ideologies are no longer plotted along a spectrum of ideas; instead they appear only at opposing ends. Apparently, there is no longer a “gray area” in any area of religion, philosophy, or politics, and this is a terrible thing. Pick your cause or belief.

Abortion, you are either “pro” or “anti.” You are not allowed to say that you generally oppose abortion, but accept it in cases of rape, incest or where the mother’s life is at risk. No, no, no. You are either for abortion or against it. You must decide whether it is okay to abort right up until that fetus pops out of its mother’s vagina, or you oppose even the use of condoms because they interfere with the procreative activity God intended. There is no middle ground.

You either want all guns removed from society or you want every man, woman and child to carry one wherever he goes. You cannot support the private ownership of guns for law-abiding citizens, while opposing ownership by felons, the mentally handicapped, or children. No, no, no. Either guns exist for the sole purpose of killing children, or they are a necessity to defend against a totalitarian government, a would-be robber, or to settle disputes among men whose honor has been called into question. You’re a fool to say that any other position has merit.

Republicans hate the poor and love the rich, and Democrats love the poor and high taxes. Republicans want to lift people up without dependency on government, and Democrats keep people poor by encouraging dependency. Either or, all or nothing. As far as one is concerned, the other’s positions are without merit.

In society today, two people of opposing views find it nearly impossible to see the merit of their opponent’s positions. Now, if both positions came to be as a result of study, debate, and rigorous criticism, then perhaps it is valid that there is no merit to your opponent’s positions. That does happen. But, in most cases, the person espousing a particular position could not tell you why his position is correct, only that it is, in fact, correct. Let me give a few examples:

I recently saw a photo on-line that showed a label for some sort of seed product. It is unclear what the label was actually for, because the photo (intentionally) lacked that information. The label had this warning saying that the product was “made with poison.” It was also clear that the label was for some sort of seed because it also stated that it was for “cultivation, not consumption.” Now, the image was shared by someone opposed to genetically modified organisms (GMO), and the purpose of the image was to inflame others who oppose GMOs by showing that GMOs contain poison. What the image lacked was context. In fact, there was no evidence that the product was actually a GMO product. Most seeds used for cultivation (i.e., planting crops) are coated in a fungicide to prevent fungus from growing on the seeds during transport and storage, but they are not GMO. But facts like this are unimportant to people with a mission. If your mission is to create the impression that GMOs are poisonous, then showing a label for seeds with “poison” on the label goes a long way. And most readers won’t bother to research the issue themselves because they don’t have the time or don’t care. If it reinforces your current position, what does it matter that the facts oppose you.
Perhaps a different example will help. As a formerly religious person, I have embraced the logical position of agnosticism, but I have a friend who is an atheist. Whenever we have talked about religion or science, she has largely been unable to talk details because she doesn’t have any. She went to a religious college like I did, but wasn’t religious herself. She believes in evolution, but can tell you practically nothing about it. If you want to talk about evolution in a critical way, not even to say that it’s bunk, she cannot keep up, but she’ll certainly mock you for questioning it.

My friend and the anti-GMO activist are examples of the disappearance of thoughtfulness, which gives rise to nuance. Nuance requires that you consider the various arguments and positions within an issue, but most people are unwilling, too lazy, or incapable of doing so. They will simply say that “if I don’t believe in God, I must believe in evolution.” Or that “I don’t want to consume poisons, and someone tells me that GMO is poison, therefore I am anti-GMO.” What’s especially sad is that these are often intelligent people who certainly have the ability to come to more nuanced positions, but for whatever reason, don’t. It’s sad, but true.

Our country has always been a leader, in part, because we could see both the bigger picture and the brush strokes. You might say we could see both the forest and the trees. But the trees are disappearing, the strokes vanishing. We need to encourage criticism, not look on it with disdain.