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United States News Title: Veteran Loses Over $60,000 to Police, Despite Lack of Criminal Charges Mark Brewer is a decorated Air Force veteran who fought in the global war on terror. But last month, he became a casualty in the drug war. In late March, the U.S. 8th Circuit Court of Appeals ruled that the federal government could take more than $60,000 of Brewer’s cash with civil forfeiture, even though he was never charged with a crime. The decision lets many Midwestern states continue to take property from people who have done nothing wrong. A former military police officer and weapons specialist, Brewer earned several medals during his service in the Air Force, before he was medically discharged in 2008. Brewer said he developed Posttraumatic Stress Disorder after a deployment in Afghanistan. In November 2011, Brewer was driving on Interstate 80 in Nebraska, when Douglas County Sheriff’s Deputy Dave Wintle pulled Brewer over for crossing traffic lanes without signaling. During the stop, Wintle performed a criminal background check, which “revealed no major violations.” After gaining Brewer’s consent, Wintle walked around the car with a canine unit; the dog alerted to the trunk. When he searched the trunk, Wintle found two backpacks that had a “strong odor of raw marijuana” and $63,530 in cash. Brewer said he was travelling to Los Angles to visit his uncle and planned to use the money as a down payment for a house. According to Brewer, he had been saving that cash during his military service and from disability payments. Wintle did not believe his story, so Brewer’s cash was seized and his car was towed. At the Douglas County Sheriff’s Office, a later search “located disability documents, old paystubs and tax returns in the vehicle, along with two articles entitled ‘How to Make Wicked Hash’ and ‘How to Make Weed Oil Without Blowing Yourself Up.’” But deputies never found any drugs in the car. Nor did the government ever charge Brewer with a crime. Deputy Wintle didn’t even issue Brewer a traffic citation—the basis for the stop. Yet for the 8th Circuit, those facts were irrelevant. Instead of requiring the presence of actual drugs in the car, the court held that the government could rely on “circumstantial evidence” to prove “that a substantial connection exists between the seized currency and drug activity.” For the court, since deputies found Brewer’s cash bundled in plastic bags and found cannabis-related articles in the car, and since police smelled marijuana, these were sufficient to take the $63,530. Brewer also asserted that forfeiting his cash would be an “excessive fine” in violation of the Eighth Amendment. Federal law allows property owners to “reduce or eliminate” a civil forfeiture if they first show that it would be “grossly disproportional to the offense.” If that has been established, then courts “shall compare the forfeiture to the gravity of the offense giving rise to the forfeiture.” For Brewer, he argued that taking over $60,000 would be “an excessive fine because no drugs were found in the vehicle and he was never charged with any crime resulting from the traffic stop.” The 8th Circuit did not agree. With legal reasoning reminiscent of Catch-22, the court ruled that Brewer “failed to make a prima facie showing of gross disproportionality,” since he “presented no evidence regarding the amount of the fine in relation to the crime it is designed to punish,” even though Brewer had not been charged with any crime that he could be punished with. (Adding to the absurdity, Brewer was not even the defendant in the forfeiture case. His cash was. In civil forfeiture cases, the government sues the property, not its owner.) Moreover, the seizure appears to have circumvented Nebraska law. Even though a Nebraska deputy seized the cash, after the seizure, the Sheriff’s Office turned the case over to the Drug Enforcement Administration to begin federal forfeiture proceedings. Under a program called equitable sharing, police can transfer seized property to a federal agency and take property under federal law. This allows law enforcement to bypass tougher restrictions set by state law. A 2010 report by the Institute for Justice found that Nebraska is one of just three states that impose the same high evidentiary standard (beyond a reasonable doubt) on the government in both criminal prosecutions and civil forfeiture proceedings. But for federal forfeiture cases, prosecutors need only show that the property was more likely than not used in connection with a crime—a much easier burden to meet. Moreover, equitable sharing lets local and state law enforcement to keep up to 80 percent of the proceeds of forfeited property; Nebraska state law allows 75 percent. Douglas County, Neb. is particularly aggressive in pursuing forfeiture. According to The Washington Post, without obtaining warrants or indictments, the Douglas County Sheriff’s Office seized and kept $11.5 million in equitable sharing funds since 9/11, one of the highest totals in the nation. The 8th Circuit’s decision ensures that law enforcement can continue to wield civil forfeiture with impunity. Nor is the ruling limited to Nebraska. This court case will be the “law of the circuit” for Arkansas, Iowa, Minnesota, Missouri and North and South Dakota as well, creating even more barriers for Americans to fight back against unjust seizures in court. Hat tip to IJ’s Short Circuit newsletter and podcast. 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#11. To: Deckard (#0)
Yet for the 8th Circuit, those facts were irrelevant. “Nothing was your own except the few cubic centimetres inside your skull. ” ― George Orwell, 1984
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