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Asset Forfeiture: Texas DA Seeks to Use Seized Funds to Defend Herself in Lawsuit Over Unlawful Seizure of Same Funds

The Texas district attorney accused of participating in an egregious asset forfeiture scheme in the East Texas town of Tenaha now wants to use the very cash seized to pay for her legal defense in a federal civil rights lawsuit filed by victims of the practice. The ACLU of Texas, which, along with the national ACLU, is representing the plaintiffs in the case, filed a brief last Friday with the Texas Attorney General's office seeking to block her from doing so.

Lynda Russell is the district attorney in Shelby County, where Tenaha is located. She is accused of participating in a scheme where Tenaha police pulled over mostly African-American motorists without cause, asked them if they were carrying cash, and if they were, threaten them with being immediately jailed for money laundering or other serious crimes unless they signed over their money to authorities.

Representing a number of victims, attorneys from the ACLU of Texas and the ACLU Racial Justice Project filed a civil lawsuit in federal court in June 2008. According to the suit, more than 140 people, almost all of whom were African-American, turned over their assets to police without cause and under duress between June 2006 and June 2008. If a federal judge agrees that assets were in fact illegally seized, they should be returned to their rightful owners, whose civil rights were violated.

In one case, a mixed race couple, Jennifer Boatwright and Ronald Henderson, were stopped by a Tenaha police officer in April 2007. According to the lawsuit, they were stopped without cause, detained for some time without cause, and asked if they were carrying any cash. When they admitted they had slightly more than $6,000, a district attorney's investigator then seized it, threatening them with arrest for money laundering and the loss of their children if they refused to sign off. There was never any evidence they had committed a crime, and they were never charged with a crime.

The town mayor, the DA, the DA's investigator, the town marshal, and a town constable are all named in the lawsuit. While they claim to have acted legally under Texas asset forfeiture law, the lawsuit argues that "although they were taken under color of state law, their actions constitute abuse of authority." The suit argues that the racially discriminatory pattern of stops and searches violated both the Fourth Amendment proscription of warrantless searches and the Fourteenth Amendment's due process clause.

While either the county or the state would normally be expected to pony up for the DA's legal expenses for a lawsuit filed as a result of her performance of her duties, neither has done so. That's why Russell -- with a tin ear for irony -- requested that she be allowed to use the allegedly illegally seized money stolen from motorists. She has asked the state attorney general's office for an opinion on whether using the funds for her defense violates the state's asset forfeiture law.

"It would be completely inappropriate for the district attorney to use assets which are the very subject of litigation charging her with participating in allegedly illegal activity to defend herself against these charges," said Lisa Graybill, legal director at the ACLU of Texas. "Texas has a long history of having its law enforcement officials unconstitutionally target racial minorities in the flawed and failed war on drugs and it is of paramount importance that those officials be held accountable."

"The government must account for the misconduct of officials who operate in its name," said Vanita Gupta, staff attorney with the ACLU Racial Justice Program, who represented African-American residents of Tulia, TX in high-profile litigation challenging their wrongful convictions on drug charges. "The state of Texas has seen egregious examples of racial profiling that result from poor oversight of criminal justice officials."

The ACLU of Texas is using the Tenaha case to push for asset forfeiture reform in the Lone Star State. One such bill stalled in the state legislature this year. "The misuse of asset forfeiture laws by local officials is exacerbated by inadequate oversight," said Matt Simpson, policy strategist for the group. "The legislature must squarely address these reported civil rights violations via reform of forfeiture laws that strengthen protection against unconstitutional conduct and racial profiling."

Asset Forfeiture: Texas DA Seeks to Use Seized Funds to Defend Herself in Lawsuit Over Unlawful Seizure of Same Funds; ACLU Objects

The Texas district attorney accused of participating in an egregious asset forfeiture scheme in the East Texas town of Tenaha now wants to use the very cash seized to pay for her legal defense in a federal civil rights lawsuit filed by victims of the practice. The ACLU of Texas, which, along with the national ACLU, is representing the plaintiffs in the case, filed a brief last Friday with the Texas Attorney General's office seeking to block her from doing so. Lynda Russell is the district attorney in Shelby County, where Tenaha is located. She is accused of participating in a scheme where Tenaha police pulled over mostly African-American motorists without cause, asked them if they were carrying cash, and if they were, threaten them with being immediately jailed for money laundering or other serious crimes unless they signed over their money to authorities. Representing a number of victims, attorneys from the ACLU of Texas and the ACLU Racial Justice Project filed a civil lawsuit in federal court in June 2008. According to the suit, more than 140 people, almost all of whom were African-American, turned over their assets to police without cause and under duress between June 2006 and June 2008. If a federal judge agrees that assets were in fact illegally seized, they should be returned to their rightful owners, whose civil rights were violated. In one case, a mixed race couple, Jennifer Boatwright and Ronald Henderson, were stopped by a Tenaha police officer in April 2007. According to the lawsuit, they were stopped without cause, detained for some time without cause, and asked if they were carrying any cash. When they admitted they had slightly more than $6,000, a district attorney's investigator then seized it, threatening them with arrest for money laundering and the loss of their children if they refused to sign off. There was never any evidence they had committed a crime, and they were never charged with a crime. The town mayor, the DA, the DA's investigator, the town marshal, and a town constable are all named in the lawsuit. While they claim to have acted legally under Texas asset forfeiture law, the lawsuit argues that "although they were taken under color of state law, their actions constitute abuse of authority." The suit argues that the racially discriminatory pattern of stops and searches violated both the Fourth Amendment proscription of warrantless searches and the Fourteenth Amendment's due process clause. While either the county or the state would normally be expected to pony up for the DA's legal expenses for a lawsuit filed as a result of her performance of her duties, neither has done so. That's why Russell—with a tin ear for irony—requested that she be allowed to use the allegedly illegally seized money stolen from motorists. She has asked the state attorney general's office for an opinion on whether using the funds for her defense violates the state's asset forfeiture law. "It would be completely inappropriate for the district attorney to use assets which are the very subject of litigation charging her with participating in allegedly illegal activity to defend herself against these charges," said Lisa Graybill, legal director at the ACLU of Texas. "Texas has a long history of having its law enforcement officials unconstitutionally target racial minorities in the flawed and failed war on drugs and it is of paramount importance that those officials be held accountable." "The government must account for the misconduct of officials who operate in its name," said Vanita Gupta, staff attorney with the ACLU Racial Justice Program, who represented African-American residents of Tulia, TX in high-profile litigation challenging their wrongful convictions on drug charges. "The state of Texas has seen egregious examples of racial profiling that result from poor oversight of criminal justice officials." The ACLU of Texas is using the Tenaha case to push for asset forfeiture reform in the Lone Star State. One such bill stalled in the state legislature this year. "The misuse of asset forfeiture laws by local officials is exacerbated by inadequate oversight," said Matt Simpson, policy strategist for the group. "The legislature must squarely address these reported civil rights violations via reform of forfeiture laws that strengthen protection against unconstitutional conduct and racial profiling."
Location: 
Tenaha, TX
United States

Law Enforcement: PATRIOT Act "Sneak and Peek" Searches Targeted Drug Offenders, Not Terrorists

The Bush administration sold the PATRIOT Act's expansion of law enforcement powers, including "sneak and peek" searches in which the target of the search is not notified that his home has been searched, as necessary to defend the citizens of the US from terrorist attacks, but that's not how federal law enforcement has used its sweeping new powers.

According to a July report from the Administrative Office of the US Courts (thanks to Ryan Grim at the Huffington Post), of 763 sneak and peek search warrants issued last year, only three were issued in relation to alleged terrorist offenses, or less than one-half of 1% of all such black-bag clandestine searches. Nearly two-thirds (62%) were issued to investigate drug trafficking offenses.

The report also includes figures on existing warrants that were extended last year. When new and extended warrant figures are combined, the total number of warrants was 1,291, with 843, or 65%, for drug investigations. Only five of all new or extended sneak and peek warrants were for terrorism investigations. Of 21 criminal offense categories for which warrants were issued or extended, terrorism ranked 19th, exceeding only conspiracy and bribery.

As Grim noted, Sen. Russ Feingold (D-WI), a leading critic of the PATRIOT Act, challenged Assistant Attorney General David Kris about why powers supposedly needed to fight terrorism were instead being used for common criminal cases.

"This authority here on the sneak-and-peek side, on the criminal side, is not meant for intelligence," said Kris. "It's for criminal cases. So I guess it's not surprising to me that it applies in drug cases."

"As I recall it was in something called the USA PATRIOT Act," Feingold retorted, "which was passed in a rush after an attack on 9/11 that had to do with terrorism. It didn't have to do with regular, run-of-the-mill criminal cases. Let me tell you why I'm concerned about these numbers: That's not how this was sold to the American people. It was sold as stated on DoJ's website in 2005 as being necessary -- quote -- to conduct investigations without tipping off terrorists," he said.

"I think it's quite extraordinary to grant government agents the statutory authority to secretly breaks into Americans' homes in criminal cases, and I think some Americans might be concerned it's been used hundreds of times in just a single year in non-terrorism cases," the Wisconsin progressive continued. "That's why I'm proposing additional safeguards to make sure that this authority is available where necessary, but not in virtually every criminal case."

Anal Cavity Searches: Another Horrible Drug War Atrocity

I hate how easy it is to find new and insane stories of drug war villainy each and every day. Today's episode comes to us by way of Detroit, where a couple young drug cops have become known as the "Booty Boys" due to their thorough approach when searching drug suspects:

Two Detroit cops dogged by accusations of illegal body cavity searches during various traffic stops in 2006 are finally getting their day in court.

A civil trial is under way in which Terence Hopkins of Highland Park says he was groped by the officers known on the streets of southwest Detroit as the "Booty Boys."

Two other men who sued the cops on similar allegations, Elvis Ware and Marcus Wrack, are expected to testify on Hopkins’ behalf. Both men received small settlements from the city.

The officers have been the focus of eight lawsuits claiming such searches filed by 10 men in U.S. District and Wayne County Circuit courts in Detroit.

Two men, Byron Ogletree and Marjjo Clyburn, with similar allegations against the officers, received payouts from the city two years ago of $349,000 each without filing a lawsuit. [Detroit Free Press]

The officers claim it's all just a conspiracy, but it sure sounds like a lot of different people have the same beef with them. I don't know these cops, but I know the drug war, which makes me a sympathetic audience for claims of excessive anal cavity searches.

This is what happens when you tell police their top priority is to catch people in possession of tiny objects. It's bad enough that our stupid drug laws would ever lead people to hide drugs in their butt. But when police actually begin operating under that assumption, that's just a nightmare for everybody.

Now that the cops' faces are in the paper, I wonder how many more victims will come forward. Moreover, I wonder how many more headlines like this it will take to convince the American public that modern drug enforcement is inherently abusive and disgusting. We've created a monster and there's just no limit whatsoever to the perversion that it unleashes on our streets every hour of the day. As long as these laws exist, as long as police are incentivized to do these unbelievable things, no one will be safe.

10 Rules for Dealing with Police

Many of our readers are familiar with the widely-viewed film Busted: The Citizen's Guide to Surviving Police Encounters, produced by the organization Flex Your Rights. The next Flex movie, 10 Rules for Dealing with Police, is set to come out before the end of the year. Filming took place in Baltimore a couple of weeks ago, and it is now in editing. Click here to check out photos; it really is looking pretty nice. narrated by the famous attorney William "Billy" H. Murphy, Jr.
Location: 
Baltimore, MD
United States

Canada: In Marijuana Grow Case, Alberta's Top Court Rules Police Use of Power Recording Device Violates Privacy Rights

In a 2-1 decision last Friday, the Alberta Court of Appeals ruled that Calgary police violated Canadian privacy protections when they persuaded a utility company to attach a device to create a record of electricity usage in a home where they suspected marijuana was being grown. The case is Crown vs. Gomboc.

http://www.stopthedrugwar.org/files/electricmeter.jpg
Daniel James Gomboc was arrested and convicted of marijuana cultivation after Calgary police on another call noticed his home showed signs that a marijuana grow was taking place. After spotting suggestive evidence, Calgary police then went to the utility provider Enmax without a warrant and persuaded it to attach a digital recording amp-meter (DRA) to Gomboc's home. The meter monitored Gomboc's power usage for five days, and police used the results to obtain the search warrant that resulted in his arrest and subsequent conviction.

Gomboc appealed his conviction, arguing that the warrantless use of the DRA violated his privacy rights under the Charter of Rights and Freedoms. The Alberta appeals court agreed, overturning his conviction and ordering a new trial. That new trial will take place without any of the evidence seized under the search warrant based on the DRA information.

"It has been famously said that 'the state has no business in the bedrooms of the nation,'" wrote Justice Peter Martin. "The actual prohibition is much broader: in our society, absent exigent circumstances, the state has no business in the homes of the nation without invitation or judicial authorization."

Martin added that the expectation of privacy extends beyond the simple information-gathering on the timing and amount of electricity used to the behavior of utility companies. "It is also objectively reasonable to expect that the utility would not be co-opted by the police to gather additional information of interest only to police," wrote Martin. "Indeed, I expect that the reasonable, informed citizen would be gravely concerned, and would object to the state being allowed to use a utility to spy on a homeowner in this way."

The decision could be a precedent that will lead to more reversals, Gomboc's attorney, Charlie Stewart, told the Calgary Herald. "It's interesting to think of all the people who have pleaded guilty or been convicted under these circumstances," said Stewart. "It's a question of the legitimacy of the search."

Canada: In Marijuana Grow Case, Alberta's Top Court Rules Police Use of Power Recording Device Violates Privacy Rights

In a 2-1 decision last Friday, the Alberta Court of Appeals ruled that Calgary police violated Canadian privacy protections when they persuaded a utility company to attach a device to create a record of electricity usage in a home where they suspected marijuana was being grown. The case is Crown vs. Gomboc. Daniel James Gomboc was arrested and convicted of marijuana cultivation after Calgary police on another call noticed his home showed signs that a marijuana grow was taking place. After spotting suggestive evidence, Calgary police then went to the utility provider Enmax without a warrant and persuaded it to attach a digital recording amp-meter (DRA) to Gomboc's home. The meter monitored Gomboc's power usage for five days, and police used the results to obtain the search warrant that resulted in his arrest and subsequent conviction. Gomboc appealed his conviction, arguing that the warrantless use of the DRA violated his privacy rights under the Charter of Rights and Freedoms. The Alberta appeals court agreed, overturning his conviction and ordering a new trial. That new trial will take place without any of the evidence seized under the search warrant based on the DRA information. "It has been famously said that 'the state has no business in the bedrooms of the nation,'" wrote Justice Peter Martin. "The actual prohibition is much broader: in our society, absent exigent circumstances, the state has no business in the homes of the nation without invitation or judicial authorization." Martin added that the expectation of privacy extends beyond the simple information-gathering on the timing and amount of electricity used to the behavior of utility companies. "It is also objectively reasonable to expect that the utility would not be co-opted by the police to gather additional information of interest only to police," wrote Martin. "Indeed, I expect that the reasonable, informed citizen would be gravely concerned, and would object to the state being allowed to use a utility to spy on a homeowner in this way." The decision could be a precedent that will lead to more reversals, Gomboc's attorney, Charlie Stewart, told the Calgary Herald. "It's interesting to think of all the people who have pleaded guilty or been convicted under these circumstances," said Stewart. "It's a question of the legitimacy of the search."
Location: 
Calgary, AB
Canada

Marijuana: Hawaii Insurer Denies Woman Transplant Because of Pot Use

Waimea, Hawaii, resident Kimberly Reyes died July 27 at Hilo Medical Center, 10 days after her insurance provider denied the liver transplant she needed because she had tested positive for marijuana in a series of toxicology tests. Reyes was not a registered medical marijuana user, but her family told the Honolulu Advertiser she had used it to deal with nausea, pain, and disorientation caused by the hepatitis that killed her.

Reyes' attorney, Ted Herhold of San Francisco, told the Observer that the diagnostic test results were the sole basis for Hawaii Medical Service Association's (HMSA) denial of transplant coverage. Reyes' husband Robin, and her mother, Noni Kuhns, said the decision was based on failure to comply with HMSA's policy forbidding drug use, but that neither HMSA nor her doctors had told her just what that policy was.

"Just because someone takes a hit off of a joint doesn't mean that it should be the end of their life -- this is not a reason to deny life," said Kuhns.

HMSA has refused to comment or provide its policies on drug use and transplant approval.

Denial of transplants to marijuana users has happened before. Last year, Seattle-area musician Timothy Garon died after being refused a transplant because of doctor-recommended medical marijuana use. In 2003, Oregon resident Dave Myers was removed from a transplant list merely for Marinol, a prescription medicine related to marijuana.

Hemp: Industry Group Seeks "Beer Summit" on Capitol Hill Following Seizure of Legal Demonstration Fibers

press release from Vote Hemp

Hemp Seizure in Capitol Underscores Confusion Over Cannabis
Hemp Industry Seeks Beer Summit with Capitol Police

WASHINGTON, DC -- Vote Hemp legislative assistant Ben Droz was shocked when Capitol Police seized his samples of industrial hemp fiber that he needed for a scheduled presentation to congressional staffers. Police refused to release the fiber after the search, while saying they knew it had no drug value and was "just hemp." The group of officers decided they needed to confiscate all the hemp seeds because no food was allowed, but the hemp fiber was also seized even though it is not food. "I just want to throw this out," said one officer, who ultimately did.

Mr. Droz explained to police that the items were being used to illustrate the environmental properties of hemp. "This is just another example of the confusion between Industrial Hemp, an important crop for farmers across the country, and marijuana, a distant cousin also from the Cannabis family." The United States is the only developed country that does not recognize the distinction between the two varieties. Mr. Droz admits, "I gave up the hemp to police, fearing arrest at the time, and now feel compelled to raise this issue so it does not happen again because I carry hemp every time I visit the US Capitol."

"The fact that this level of confusion among law enforcement still exists today is exactly why federal policy on hemp needs to change," says Vote Hemp President Eric Steenstra. "We hope for the return of Vote Hemp's property, an apology, and perhaps, a Capitol Hill beer summit or Congressional hearings to discuss our differences with the Drug Enforcement Administration (DEA)."

Hemp products have been subject to confusion in the past. In 2002, the DEA attempted to ban imports on hemp foods, despite the growing recognition of its value to farmers and consumers. Vote Hemp, the Hemp Industries Association, and several US and Canadian companies, successfully challenged the DEA in a lawsuit calling the ban unwarranted and illegal. Since this ban was lifted, the hemp industry has grown substantially every year. Last year alone, grocery store sales of hemp food products grew over 40%.

Since 2005, the Industrial Hemp Farming Act (H.R. 1866) and its predecessors have waiting for a hearing in the House, but it's been tabled the entire time. The bill has a dozen bipartisan cosponsors, and allows states like Oregon (as of Jan. 2010), Maine, Vermont, North Dakota, Montana (and many others) to grow hemp based on State laws. Sixteen states have already passed legislation, and many, like the ones listed above, are simply waiting for the federal ban to be lifted once again. Mr. Droz has been working with Vote Hemp in order to raise congressional awareness about this marginalized issue.

The growing market proves the case of hemp. Food sales have grown every year since the ban was lifted. Other parts of the hemp plant, such as those confiscated from Droz, can be used to make any number of consumer products, while all jobs generate from the industry could be as green collar jobs.

Despite a growing global industry, US farmers are still unable to grow hemp. All hemp in the US must be imported from other countries to be either processed or sold here.

"It's ironic that the very items I was using to clear up confusion, became the subject of contraband and were confiscated," Mr. Droz commented after the incident.

Law Enforcement: New York Man Wins Settlement in Forced Body Cavity Search Suit

New York's Albany County and Albany Medical Center Hospital will pay $125,000 to a New York man who was first strip-searched and then hospitalized and sedated against his will while hospital employees at police direction inserted a camera in his rectum in search of contraband. That is according to the out of court settlement agreed to over the weekend to end a federal lawsuit brought by the victim.

The victim, Tunde Clement, was arrested at the Albany bus terminal in March 2006 when he stepped off a bus from New York City. Sheriff's investigators suspected the ex-convict was carrying drugs, but found none in his backpack. He was then handcuffed, taken to the police station, and strip-searched. Again, no drugs were found. Then police took him to Albany Med, where doctors forcibly sedated him against his will.

While under sedation, doctors inserted a camera in his rectum and scanned his digestive system with X-rays. They also induced vomiting and took blood and urine samples to test for drugs and alcohol. They found nothing. After 10 hours in custody, Clement was charged with resisting arrest and released on his own recognizance. An Albany judge later threw out that charge.

Sheriff's investigators never obtained a search warrant for the procedure, nor did hospital officials require them to produce one. Normally, people under arrest cannot be forcibly sedated without a court order unless they are in imminent danger. Although hospital records indicate Clement was behaving normally and showed no signs of any medical emergency, hospital officials and police considered their desire to search his body "a medical emergency."

Clement subsequently filed a federal lawsuit against Albany Med and several doctors and nurses and against Albany County, Sheriff James Campbell, Inspector John Burke, who heads the dope squad that arrested Clement, and eight investigators assigned to the unit. He claimed his civil rights were violated and that he was the victim of assault and battery when officials and doctors strapped him down and injected him with sedatives against his will.

Now, the county and the medical center will pay for their misdeeds. Or, more precisely, local taxpayers will. Perhaps that will inspire local taxpayers to demand that law enforcement shape up and that medical personnel not be willing accessories to abusive law enforcement practices.

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