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Sheriffs' Group Call on Congress to Act Against Cartels, DE Legal Pot Bill Advances, More... (3/16/23)

The Texas Senate has approved a bill raising fentanyl penalties, a Delaware Senate committee advances a pair of marijuana legalization and regulation bills, and more.

Fentanyl. Texas is the latest state to experiment with charging sellers with murder if an overdose happens. (Creative Commons)
Marijuana Policy

Delaware Senate Committee Approves Marijuana Legalization, Regulation Bills. Marijuana legalization is one step closer after the Senate Health and Social Services Committee approved a pair of House bills that would legalize marijuana ( House Bill 1) and regulate legal marijuana commerce (House Bill 2). Last year,a similarly bifurcated legalization effort came up short, with the House failing to pass the regulation bill and Gov. John Carney (D) vetoed the legalization bill. But this year, House bill sponsor Rep. Ed Osienski (D) says he is "optimistic" and feels "pretty good" about being able to override any veto. Meanwhile, HB 1 now heads for a Senate floor vote, while HB 2 must first get past the Senate Finance  Committee.

Drug Policy

Texas Senate Approves Bill to Increase Fentanyl Penalties. The Senate on Wednesday approved Senate Bill 645, which would open the door for prosecutors to charge people who make and sell fentanyl with murder. The bill does so by classifying fentanyl overdoses as "poisonings." The bill would also make delivery of less than one gram of fentanyl a third-degree felony. It is currently a lower-level state jail felony. If someone dies because of that delivery, it becomes a second-degree felony. State jail felonies have a maximum sentence of two years, third-degree felonies garner up to 10 years, and second-degree felonies can earn up to 20 years. The bill now heads to the House.

Foreign Policy

National Sheriff's Association Calls on Congress to Take Immediate Action Against Mexican Cartels. In the wake of the killing of two US citizens in Matamoros, Mexico, last weekend and the ongoing fentanyl overdose crisis, an association representing some 3,000 county sheriffs is calling on Congress to act now against Mexican drug cartels. "The nation’s sheriffs strongly support the American people’s continued demand that our federal government use whatever means appropriate to combat these deadly cartels," Sheriff Jim Skinner, chair of the National Sheriffs’ Association Government Affairs Committee, said in a statement. The group is calling on Congress to use its authority to create a "comprehensive system of further manpower and other tools that prevent any illicit drugs from being produced, smuggled and sold on American streets." Some members of Congress have been calling for more action, including designated the cartels as foreign terrorist organization and even calling for US military action inside Mexico. 

This Week's Corrupt Cops Stories

An East Texas police chief breaks bad, and there's trouble on the task forces. Let's get to it:

In Payne Springs, Texas, the Payne Springs police chief and a town police officer were arrested last Thursday for dealing drugs seized by the Payne Springs Police Department. Chief April Dawn Meadows and Reserve Officer Jonathan Paul Hutchinson went down after Henderson County Sheriff's Office investigators got a tip that they were peddling seized dope. The tip came from a snitch who had been making controlled buys for Hutchinson when Hutchinson still worked as a narcotics investigator for the sheriff's office. Deputies found drugs when they executed search warrants at the pair's homes. They both face charges of delivery of a controlled substance and money laundering. Hutchison and Meadows’ bond amounts are $1.5 million for each charge.

In Jacksonville, Florida, a former Nassau County Sheriff’s Office sergeant was arrested last Friday for stealing drugs and money seized during investigations and selling the drugs to someone who ended up ratting him out. James Hickox, 37, was part of a DEA task force. He and another, as yet unidentified (but also a task force member who has been arrested) officer, were in on the scheme. When federal agents raided his home last Friday, they found "large quantities" of cocaine, MDMA, and fentanyl, as well as nearly $200,000 in cash. When they reviewed his bank records, they found he routinely deposited thousands of dollars a day at multiple ATMS over a three-year period. He is charged with possession of cocaine, MDMA, and fentanyl with intent to distribute.

In Harrisburg, Pennsylvania, the former commander of the Lancaster County Drug Task Force pleaded guilty last Thursday to stealing nearly $171,000 in seized drug money between 2015 and 2020. John Burkhart admitted that he stole seized cash, failed to deposit funds, and falsified deposit records during the civil asset forfeiture process in criminal cases investigated by the Lancaster County Drug Task Force. Burkhart stole seized cash from the Lancaster County Drug Task Force safe over which he had nearly exclusive control and recorded false deposit amounts before they could be recorded by the treasurer, skimming thousands of dollars from 2015 through 2020. He pleaded guilty to theft by deception and theft by failure to make required disposition of funds. 

Chronicle Book Review: "Shielded: How the Police Became Untouchable"

Shielded: How the Police Became Unaccountable by Joanna Schwartz (2023: Viking Press, 308 pp., $30 HB)

As Donald Trump laid out his fascistoid law and order platform last month, he vowed to bring back stop-and-frisk, railed against "radical Marxist prosecutors," warned of civil rights investigations of "radical leftist prosecutors" for alleged race-based policing, and promised the death penalty for drug dealers, among other fearsome fulminations. But the first bullet point of his manifesto regarded cops: Not only would he fund record hiring levels; he would also "increase vital liability protection for America's law enforcement."

With that pledge, the not-yet-indicted former president played to longstanding but unproven concerns that citizens' ability to seek civil redress for police mistreatment under civil rights laws would force police officers into bankruptcy if they were found liable for heat-of-the-moment lapses. Equally to be feared -- and equally unproven -- is the notion that being able to hold police liable will inhibit them from fully exercising their crime-fighting powers and protecting public safety.

Not to worry, officer! As UCLA law professor Joanna Schwarz makes clear in Shielded, her new book on (the lack of) police accountability, cops get away with murder. And rape. And torture. And beatings. And various other forms of street-tough thuggery. Schwartz has spent years researching how our legal system protects police at all costs through the accretion over decades of Supreme Court decisions interpreted by a non-representative federal bench with cases tried by juries filled with people who have never had a bad encounter with police. (In federal civil cases, felons cannot be jurors, and the voir dire process eliminates potential jurors with negative perceptions of law enforcement.)

Over the course of decades, the Supreme Court first opened the door to civil rights litigation to address police violation of constitutional rights, then, in case after case, effectively pushed it back until it is now barely open a crack. It is no accident that this has occurred under a Supreme Court that has been sliding to the right for the last 50 years and is now the most reactionary court in a century. One technique is to require plaintiffs to show sufficient evidence of patterns of police misconduct before they are allowed to undertake discovery, the process by which both sides in a case are allowed to see and seek relevant evidence. In the case of rogue police departments, this would be records of officer infractions, incident reports, and the like. But under current Supreme Court precedent, federal judges summarily dismiss cases before discovery because plaintiffs have not produced the evidence they have not yet been allowed to seek. That's a hell of a Catch-22.

Another huge hurdle in front of people seeking redress for police misconduct is qualified immunity, a notion constructed out of thin air by the Supreme Court in 1967 and turned into another Catch-22 by the Supreme Court in 1982. Qualified immunity is a defense to civil rights claims that is granted if the law the cop violated is not "clearly established," and if qualified immunity applies, plaintiffs cannot collect monetary damages. Under the 1982 decision, the federal courts find that qualified immunity applies unless the plaintiff can show a previous case with the exact same facts has been decided in federal court.

But Schwartz shows that the Supreme Court is only one of the "shields" protecting police. At the institutional level, police Internal Affairs bureaus generally do not punish nor track misbehavior. At the municipal level, budgets anticipate having to pay out damages for police behavior, with the taxpayers—not the miscreant officers—paying up. At the state level, legislators pass laws that further protect police. And there are more obstacles that Schwartz elucidates, from the makeup of the federal judiciary and federal juries to financial disincentives for attorneys to spend their careers litigating civil rights cases where they could spend thousands of hours preparing cases only to have them settled and end up being paid a pittance for their efforts.

This is not a book about the war on drugs, but the war on drugs is implicated throughout.  Many, many of the encounters between police and citizens that result in civil rights violation complaints arise from the prosecution of the drug war, and many, many of the victims are drug users or suspected drug users.

Schwartz lucidly and cogently explores the mountain of obstacles people seeking justice for police mistreatment face, as well as the obstacles facing people who want to remake the system into something nearer to common notions of justice. Given the current makeup of the Supreme Court and the stalemated state of play in Congress, relief is unlikely to come from the federal government. The problem seems intractable.

But Schwartz sees opportunities for positive change at the state and local levels, and she cites Colorado's 2020 passage of a bill ending qualified immunity, requiring officers found to have operated in bad faith to pay something out of their own pockets (as opposed to being indemnified by the city or state, which pays the judgement), and allows plaintiff attorneys to recover their fees when they prevail.

This is an important, eye-opening work. If you are concerned about who will guard us from the guardians (and how), it is indispensable.

Great Plains MedMJ Bills Filed, Biden Criticized Over Call for Harsh Fentanyl Penalties, More... (2/9/23)

An Arkansas Republican files a bill to put marijuana legalization before the voters in 2024, harm reductionists and drug reformers criticize the president's call for stronger criminal penalties around fentanyl, and more.

Nebraska and neighboring Kansas are both working to enact medical marijuana laws this year. (Creative Commons)
Marijuana Policy

Arkansas Republican Files Bill to Put Marijuana Legalization on 2024 Ballot. State Sen. Joshua Bryant (R-Rogers) filed a bill Wednesday to put a constitutional amendment to legalize marijuana on the 2024 general election ballot. The bill, SJR13, would legalize marijuana for adults and allow "craft or home growing" of pot plants. The move comes after a 2022 constitutional amendment to legalize marijuana was defeated at the polls by a margin of 56 percent to 44 percent.

Medical Marijuana

Kansas Senators File Medical Marijuana Bill. The Senate Federal and State Affairs Committee has filed a medical marijuana bill, Senate Bill 135. The measure would set up a system of licensed dispensaries from which patients could obtain a 30-day supply of marijuana, but only in the form of concentrates, topicals, or edibles—smoking or vaping would not be allowed. Patients suffering from a specified list of 21 medical conditions would be eligible. Patients would have to register with the state, but people who have a doctor's recommendation but have not registered would face only a fine for possession of up to 1.5 ounces of marijuana. Similar legislation passed the House in 2021, only to die in the Senate.

Nebraska Medical Marijuana Bill Gets Hearing. The single-chamber legislature's Judiciary Committee held a hearing on a medical marijuana, bill from Sen. Anna Wishart (D), Legislative Bill 588. The committee heard testimony from experts and advocates who relayed information about the plant's therapeutic value, as well as from Wishart herself, the state's most prominent medical marijuana advocate. Wishart has led so far unsuccessful efforts to put the effort directly before voters as a ballot initiative. "My goal is that no family has to flee our state to get access to medical cannabis for themselves or a loved one," Wishart said in her opening remarks. "This bill is not going to fail because of lack of compromise or thoughtfulness on the part of all of the senators and the stakeholders that have worked on this. If this bill fails, it will fail like it has in the past because of political pressure from a few people in our state who wield their power to stamp out the will of the people."

Drug Policy

Drug Reformers, Harm Reductionists Criticize Biden's State of the Union Call for Harsher Fentanyl Penalties. Harm reductionists and drug reformers took issue with one part of President Biden's plan to address the fentanyl crisis—his call for "strong penalties to crack down on fentanyl trafficking." Such an approach would only make matters worse, advocates said. "When you criminalize things, you create stigma around substances," said Maritza Perez Medina, director of federal affairs at the Drug Policy Alliance. "If people know they’re going to get in trouble for using substances, they’re going to be reluctant to call for help." Harm reduction advocacy group PAIN organizer Harry Cullen said that efforts to suppress fentanyl have led to the emergence of other dangerous substances in the drug supply, such  as the veterinary drug xylazine. "To double down on criminalization is not the way forward," Cullen said. 

This Week's Corrupt Cops Stories

A small-town Pennsylvania police chief was slinging dope, so was an Ohio narcotics detective, and more. Let's get to it:

In Greenburg, Pennsylvania, the Greenburg police chief was arrested January 25 for helping to distribute cocaine, meth, and other drugs. Chief Shawn Denning, 41, allegedly peddled dope for a 16-month period from June 2021 to October 2022 and went down after DEA investigators used an informant to collect evidence against him. Denning repeatedly hooked up the informant with drug suppliers he knew in California and the informant repeatedly successfully scored ounces of cocaine, among other drugs. Denning now faces six federal counts of drug distribution-related charges, and he is no longer the chief. 

In Cleveland, Ohio, a state prison guard was arrested January 30 for smuggling methamphetamine and other drugs into the Lorain Correctional Institution. Guard Daryl Gus, 35, went down after the prison officials tipped the DEA that they had listened to an inmate's phone calls and heard him directing people to deliver drugs to Gus. The DEA then joined the investigation, searching Gus's phone records and financial activities, and finding sufficient evidence to arrest him on a federal charge of conspiring to distribute drugs.

In San Diego, a San Diego sheriff's deputy was arrested last Friday after suspected cocaine was located inside his vehicle on jail property. Deputy Allen Wereski, 48, went down after his coworkers discovered "suspected cocaine" inside his car. He was suspended without pay, as well as being jailed on $25,000 bail for count of bringing a controlled substance to a correctional facility. 

In Columbus, Ohio, a former Columbus narcotics officer was sentenced last Friday to nine years in federal prison for trafficking more than eight kilograms of drugs, including cocaine and fentanyl. Marco Merino, 45, had pleaded guilty a year ago to accepting bribes and conspiracy to distribute fentanyl. Merino and former officer John Kotchkoski dealt drugs together as narcotics detectives. Kotchkoski pleaded guilty in April to a single count of fentanyl trafficking and awaits sentencing. The pair went down after trying to sell eight kilos of fentanyl to a man they thought was a snitch but who was actually an undercover FBI agent.

 

 

Chronicle Book Review: "The Riders Come Out at Night"

The Riders Come Out at Night: Brutality, Corruption, and Cover-Up in Oaklandby Ali Winston & Darwin Bondgraham (2023, Atria Books, 467 pp., $30 HB)

The killing of Tyre Daniels by Memphis police officers who were members of an aggressive anti-crime unit has reignited longstanding public concerns about police brutality and, more broadly, police culture. How is it that American police generate an Eric Garner, a Philandro Castile, a Breonna Taylor, a George Floyd, a Tyre Daniels, another dead person of color and another, on a regular basis?

As the brief list above suggests, and as the massive wave of protests in towns and cities across the land in the wake of the George Floyd killing confirms, thuggish, sometimes murderous cops are not just a Memphis problem. Almost every big city police department has its own legacy of scandalous brutality, much of it linked to the enforcement of drug prohibition. Oakland, California, is no exception.

In the case of the gritty East Bay city, it was the Riders scandal two decades ago that was so outrageous it generated mass protests, a criminal trial of the police involved, and a successful civil lawsuit that resulted in the Oakland Police Department force to operate under the supervision of a federal judge enforcing a consent decree.

In The Riders Come Out at Night, veteran investigative journalists Ali Winston and Darwin Bondgrahm use the Riders scandal as the fulcrum with which they pry open the inner workings of a police department long notorious for corruption and brutality. It's a tale not just of cop acting like criminals but also of a departmental culture more interesting in protecting its own than protecting the citizenry and elected officials more interested in playing "tough on crime" politics than ensuring that the police do not abuse the public.

Like the Memphis SCORPION unit now under the spotlight, the Riders were a specialized crime-fighting unit, celebrated for their aggressive tactics against drug dealers and other scofflaws and held up as an example for incoming rookie officers. A growing pile of police brutality complaints vanished into the police bureaucracy that was supposed to address them, and it took one of those rookie officers, sickened by what he was witnessing from his trainers, to finally bring the scandal into the open.

When it broke, it broke big, with four of the Riders eventually going to trial for the assaults and other crimes they committed (one of them fled and remains a fugitive to this day), only to escape criminal punishment after being vigorously defended by lawyers paid for by the police union. But they and the department could not escape a civil lawsuit filed on behalf of 119 Oakland residents that resulted in a federal consent decree forcing the department into oversight by a federal judge. That was 2003. The department remains under that consent decree to this day because it has been unable or unwilling to make the reforms necessary to satisfy the judge.

Since that 2003 consent decree went into effect, the Oakland PD has suffered renewed scandals on a regular basis, ranging from run of the mill police killings to the killing of four Oakland cops by one man in an incident that laid bare deficiencies in police training to the scandal around Oakland (and other) cops having sex with a troubled teen. And then there was the killing of Oscar Grant at the Fruitvale BART station—not by an Oakland cop but by a BART officer—and the Oakland Police's thuggish response to protests around that killing. And the spying on and attacks on Occupy protestors in 2011.

And on and on. It's as if the Oakland Police is a recidivist organization. The authors describe a culture within the department that has been historically racist, sexist, and anti-worker, dating back to anti-Chinese policing in the late 1800s, the Ku Klux Klan presence in the force in the 1920s, and the violent suppression of strikes in the 1930s. It bashed hippies in the 1960s and terrorized black Oaklanders in the 1980s and 1990s as it prosecuted the war on drugs.

It also generated a decades-long resistance movement, often led by the families of the people the department killed that has managed to impose reforms. And it eventually inspired the consent decree under which the department still labors, but it's always two steps forward, one step back.

As they examine this sordid history, Winston and Bondgraham concede that the department has changed, become less deadly and more transparent, and even occasionally capable of punishing miscreants within the ranks. But they argue that the transformations necessary to civilize policing in Oakland (and elsewhere) are greater than the institution of the police:

Whether policing in Oakland will ever get to the point where most people can agree it has been fundamentally transformed—no longer anything like the institution the Riders thrived in, no longer the force that terrorized Black Oakland after World War II and well into the 2000s—depends very much on whether there are broader societal shifts. So long as Oakland and the rest of America is riven by extreme race and class inequalities and the power of the federal government is not brought to repair the economies of destitute cities and rural areas, and deal with the intergenerational trauma that leads to despair and hopelessness, then it's very likely the police will continue serving more or less the same function they have for well over half a century: containing and repressing the symptoms of broader social problems through violence.

The Riders Come Out at Nightis thoroughly researched, compellingly written, and eye-opening. It is also an achingly timely examination of the role of police in society and how we figure out who will guard us from the guardians. This is a real contribution to the literature of policing in America, and it does not paint a pretty picture. 

This Week's Corrupt Cops Stories

A San Diego deputy has some bad habits, a Florida jail guard was peddling pot brownies to prisoners, and more. Let's get to it:

In Tampa, a Hillsborough County sheriff's detention officer was arrested January 5 for selling marijuana edibles to inmates at the Falkenburg Road Jail. Officer Terry Bradford, Jr., 25, was selling "cannabis-laced edibles" and "other contraband" and was caught with more than a pound of brownies individually packaged for sale. He went down after an inmate snitched him out. He's now been fired, as well as charged with introducing contraband into a detention facility and possession of a controlled substance.

In San Diego, a San Diego County sheriff's deputy was arrested January 7 on a felony warrant for allegedly committing burglaries and possessing drugs. Deputy Cory Richey, a 16-year-veteran of the department, faces 13 counts of burglary and three of drug possession. Authorities said the investigation continues.

In Phoenix, a Maricopa County corrections officer was arrested last Wednesday on suspicion of smuggling fentanyl into the Lower Buckeye Jail. Officer Andres Salazar, 26, was caught with nearly a hundred fentanyl pills in the jail parking lot and is now charged with possession of a narcotic, promoting prison contraband and transport for sale. He is currently on administrative leave.

Asset Forfeiture Shenigans Down in Houston [FEATURE]

Law enforcement officers and prosecutors systematically violate the constitutional rights of innocent property owners and interstate drivers, seizing cash and other valuable items without legitimate probable cause, which deprives individuals of much-needed funds in their possession. Police agencies seize additional property like vehicles, houses, businesses, and other tangible items, then auction these items off by executing a well-planned civil forfeiture lawsuit even if a person who owned the property or properties hadn't been convicted of a crime. State and local governments then split the proceeds with the law enforcement agency that made the seizure.

"In the United States, the basic tenet of the criminal justice system is that one is presumed innocent until proven guilty," wrote Rebecca Vallas and her team at the Center for American Progress. "However, over the past several decades, many thousands of people have had their property seized by the government without being charged with a crime."

That is civil -- as opposed to criminal -- asset forfeiture. Civil forfeiture law only requires prosecutors to prove a mere preponderance of the evidence, a lesser threshold than the beyond a reasonable doubt standard required in criminal cases. In practice, property targeted under civil forfeiture is usually seized unless the property owner hires an attorney to contest the proceeding, but people whose monies or properties have been seized often lack the means to challenge such actions.

Kevin Lawrence, executive director of the Texas Municipal Police Association, said the lower standard allows police to hit criminals in their pocketbooks even if they can't place them behind bars. "Civil asset forfeiture is intended to try and take a bite out of organized criminal syndicates by getting at their profit margin," he told KERA TV. "If we do away with civil asset forfeiture, who benefits the most? It's organized crime."

Documentation of thousands of asset forfeiture cases by the Institute for Justice (IFJ), a Washington, DC-based public interest law firm, challenges Lawrence's line because it found police confiscated small amounts of money from individuals instead of big hitters who are involved with organized crime which means not everyone who has their money taken is into high-level crimes. Many aren't guilty of anything except for having a substantial amount of cash when police erroneously profile them as criminals.

Forfeited assets including cash proceeds are lucrative for government and law enforcement agencies. In 2018 alone, reports IFJ, 42 states, the District of Columbia, and the federal government seized over $3 billion; $500 million was forfeited under state law and the government seized $2.5 billion within the Department of Justice and the Treasury forfeiture program.

IFJ is fighting tooth and nail against alleged abusive practices in Texas by filing a class-action lawsuit last year against the Harris County District Attorney's Office headed by elected Democrat Kim Ogg and Ed Gonzalez the elected Harris County sheriff.

"Texas has some of the worst civil forfeiture laws in the country, and what's driving this is the fact that police and prosecutors get to keep the property they seize. They can use it to buy better equipment, to buy better automobiles, and pay salaries, IFJ attorney Scott Bullock said more than a decade ago. Little has changed since then.

Ovid Ned can attest to Harris County's questionable seizure tactics. On January 31, 2016, Houston Police patrolmen stopped Ned while he was driving a new Jeep Compass in the 10700 Block of Bentley Street in far North Houston. Since Ned didn't have a state driver's license he was arrested on the spot. While conducting an inventory of the vehicle for towing purposes the officers discovered 26.98 grams of hydrocodone inside a pill bottle in the vehicle's glove box. Police confiscated $948.00 tucked in Ned's pants pocket. A charge of possession with intent to deliver hydrocodone was filed against Mr. Ned. As a bonus, the officers seized Ned's cash claiming the funds were the result of illegal narcotic sales.

But while he potentially faced a stiff prison sentence, Ned's luck was as hot as a pair of winning craps dice because a Harris County prosecutor dismissed the drug charge on June 15, 2016. To the prosecutor's surprise, Ned had a valid prescription for the hydrocodone, but in a second go-round, Ned crapped out. Harris County asset forfeiture prosecutors filed a case against his money and managed to grab every red cent without convicting the alleged member of the 5th Ward Circle Street gang of anything.

Houston Police stated in the seizure report they believe the cash was drug money because Ned was a documented gang member with a lengthy criminal history involving narcotics, and they further allege finding three boxes of plastic sandwich bags in the trunk of the vehicle.

Prosecutor Angela Beaver argued that Ned "was selling the pills." Beaver explained how opioid dealers often obtain several prescriptions from pain clinics.

"All they have to do to make the criminal case go away is to produce one of these prescriptions so that the possession is not illegal," Beavers said. "It does not mean the money seized is not contraband."

What Beavers failed to mention is all her office had to do was contact Ned's doctor to verify the authenticity of the prescription. Nor did Beavers show proof that Ned engaged in scouting for doctors to write bogus prescriptions to account for the drugs he possessed at the time he was arrested.

"Taking property without a criminal conviction is a violation of the owners' civil liberties," said IFJ attorney Arif Panju. "There is a principle of being innocent until proven guilty, and forfeiture just takes that and flips it on its head. That raises all sorts of constitutional problems."

The IFJ scored a victory at the US Supreme Court that limits forfeitures in state cases where the value of what is seized outweighs the seriousness of the connected crime.

US Supreme Court Justices Weigh In

US Supreme Court justices realize how civil forfeitures can become excessively punitive and that in such cases the constitutional protections must attach to balance the law. Forfeitures of property without proof of the owner's wrongdoing, merely because it was 'used' in or was an instrumentality of crime has been permitted in England and this country, both before, and, after the adoption of the Fifth and Fourteenth Amendments.

In the case of Leonard vs. Texas, Justice Clarence Thomas questioned: "whether the Court's treatment of the broad modern forfeiture practice can be justified by the narrow historical one."

Leonard vs. Texas entails a story of two men, vehicle driver James Leonard and passenger Nicosa Kane. Police stopped the men in Texas as they headed down an interstate known for heavy drug trafficking. When the officer saw a locked safe in the trunk he questioned the men about the contents of the safe. According to the officer, both men gave conflicting stories about the safe. James told the officer the safe belonged to his mother and that he was to buy a house in Pennsylvania. Once the safe was opened the officers discovered the mother lode, a cool $201,000. A bill of sale for a house was also found in the safe.

The state immediately seized the funds. Leonard's mother, Lisa Olivia Leonard, filed a lawsuit listing herself as the innocent owner of the cash-filled safe. At the trial court hearing, the presiding judge issued a forfeiture order meaning Ms. Leonard lost the cash. She appealed the verdict. Rejecting Leonard's innocent-owner defense the court of appeals, citing the suspicious circumstances of the stop and the contradictory stories between James Leonard and Nicosa Cane, court concluded that the government proved by a preponderance of the evidence that the money in the safe was either the proceeds of a drug sale or intended for such activity.

The US Supreme Court denied Leonard's petition for certiorari on March 6, 2017. No news reports are showing whether Leonard won her money back.

Meanwhile, states like Arkansas and Michigan have passed legislation to require that a person must first be convicted of a crime before forfeiture proceedings can start. Texas state Republicans and Democrats have proposed similar legislation.

Difference Between Criminal Law and Civil Forfeiture Asset Law

The key feature of Texas civil forfeiture law is how it shifts the burden of proof onto the person who had their property seized to prove their property wasn't connected to a crime. Unlike a criminal trial where the evidence is brought against an individual, in civil forfeitures, the government proceeds against the property (or seized cash) as if the property itself assisted in the commission of a crime.

For instance, when it comes to civil law forfeitures the government only needs to meet a lower preponderance of the evidence to snatch away someone's property which means a person can have their property taken without being convicted of a crime.

"Who could afford to have their life savings taken away for more than two years with no hearing and no opportunity to go before a judge?" asked IFJ Senior Attorney Wesley Hottot.

The Harris County District Attorney's Office has declined to comment publicly about the IFJ lawsuit.

Harris County DA Office Dismisses Dope Cases by Corrupt Houston Police Narcotic Officers And Keeps the Seized Tainted Cash

Harris County prosecutors in Houston dismissed numerous drug cases and recommended the reversal of the cases of other defendants arrested by terribly corrupt Houston police narcotic officers Gerald Goines and Stephen Bryant, the narco officers responsible for one of Houston's most scandalous acts of sheer violence when Goines lied to obtain the January 2019 search warrant that led to the shooting deaths of two innocent people, 59-year-old Dennis Tuttle and Tuttle's wife, 58-year-old Rhogena Ann Nicholas. They were gunned down by police after Goines fabricated a search warrant and executed the same warrant at the couple's home.

Goines claimed his informant purchased heroin from the couple when no informant had entered the home and made a drug buy. Five additional officers were shot during the raid as well as what became the sensational, deadly raid on Harding Street in the East End of town. There have been at least three dozen instances in recent years when Goines' Narcotics Squad #15 seized lots of cash, jewelry, and vehicles based on misleading statements and even outright lies to justify narcotic search warrants.

Despite the criminal cases being dropped or dismissed, the Harris County Civil Asset Forfeiture Division still seized the "crime-tainted" cash and property. For example, on July 24, 2018, Andrew Hebert, of 4524 Alvin Street in Houston was strolling over to his 2017 Buick Lacrosse parked in the driveway when police swarmed him like flies. Narcotic officers Goines and Bryant said they saw Hebert make a hand-to-hand dope delivery to an individual. A search of Hebert's residence yielded assorted narcotics and $10, 965.00. Police seized the funds and Hebert had a second seizure of $1,765.00. When news broke about the scandal involving Goines and Bryant's involvement in the death of the East End couple the District Attorney's Office dropped the dope case against Hebert but still, the prosecutors kept his money.

The same thing happened to Christopher White's $2,465 and Andre Thomas's $2,700. Criminal charges were dropped due to Goines's involvement in their narcotics cases, but they never saw the money again. Goines and Bryant are facing a laundry list of federal civil rights criminal charges ranging from obstruction of justice, making false statements, falsifying records, and depriving the deceased victims of their constitutional right to be secure against unreasonable searches. State charges against Goines include first-degree murder. That trial remains pending.

Transporting Cash to Buy a Truck Isn't a Crime

Included in the Institute for Justice class action lawsuit is the case of Ameal Woods and Jordan Davis from Natchez Mississippi, who lost $42, 300 to Harris County Civil Asset Forfeiture Enforcement. Ameal Woods was traveling from Natchez to a suburb outside Houston called Katy, Texas, -- when he happened to encounter a Harris County Sheriff Patrol Sergeant on May 19, 2019. The sergeant pulled Woods over in the 2300 block of I-10 driving a new Nissan Sentra for allegedly "following a tractor-trailer too closely."

The Sergeant allowed Woods to sit in his patrol car while he checked Woods' license and prepared a warning citation. As these transactions took place, the sergeant wrote the following in his offense report: "Mr. Woods was having facial tremors, labored breath, shifting around in his seat, licking his lips and belching, all signs of stress," the officer wrote in his report.

Whether the officer first asked Woods if he was transporting dope or money or if anything out of the ordinary triggered the officer's suspicion remains unclear. In the officer's report, he said that Woods claimed to be carrying $30,000 in his rented vehicle and that his girlfriend Jordan Davis rented the car. Woods said the money was to buy a used tractor-trailer to expand his trucking business back home in Mississippi.

The deputy recovered the money wrapped in separate packages. When asked where he got the funds Woods said his wife gave him part of it, and that a niece loaned him some as well. The deputy also claimed Woods had explained to him that his girlfriend Jordan Davis had given him part of the money from her tax returns.

To verify Woods's story, the deputy sergeant said he called Jordan Davis from his cell phone while sitting on the road with Ameal Woods and that Davis said she hadn't gotten her tax return yet. Ameal Woods denied his girlfriend had talked with the sergeant about her tax return. Once the money was taken, the sergeant gave Woods an incident report number detailing the seizure and Woods was cut loose at the scene.

Ameal Woods recalled seeing no drug dog at the scene. But in a final seizure report submitted to the county by a different deputy, the deputy stated a drug dog made a hit on the money Woods was carrying, which means the dog detected an odor of illegal drugs on the seized money.

National Geographic and several more prominent news media outlets reported in 2009, that a definitive study showed "Nearly nine out of ten bills circulating in the United States are tainted with cocaine." In 1994, the US 9th Circuit Court of Appeals determined that in Los Angeles, out of every four banknotes, on average more than three are tainted by cocaine or another illicit drug.

Questions swirled among the IFJ attorneys as to why it took slightly over two years before the Harris County District Attorney's Office in Houston served Ameal and Jordan with legal notification of the forfeiture.

IFJ attorneys said there is a scheme by Texas lawmen and the District Attorney's Office to take cash from travelers without legit probable cause, particularly if the individuals are African Americans and Mexicans.

Forfeiture Complaints Raise Suspicion

What infuriates the IFJ attorneys was the suspicious composition of the forfeiture complaint by a Harris County Deputy Sheriff identified as Greg Nason, who, according to the lawsuit "was not at the scene when the money was seized from Ameal Woods."

The Attorney's investigation uncovered more peculiar activities. Unsurprisingly, IFJ attorneys identified 113 seizure affidavits rife with errors and misspelled words "written by an officer who was not at the time and place of seizure." At least 80 of those affidavits were written by the same Officer Greg Nason. Just as the discovery of some of the poorly worded sentences wasn't enough, the attorneys noticed 'cut and paste' testimony with different fonts, and erroneous dates and the deputy even referred to tangible cash when the seized property was a vehicle.

Dog Makes Alert on Proceeds Later; Not At The Scene

IFJ attorneys also discovered 92 cases (including the Ameal Woods case) where a drug dog reportedly alerted "after police seized property." The key word is "after" the incident took place, not at the scene. Ameal assured his attorneys that no dog sniffed his money at the scene.

"The government cannot copy-and-paste its way to probable cause," said IFJ. Managing Attorney Arif Panju. "Probable cause means more than simply having a large sum in cash and an after-the-fact dog alert."

Retired Harris County Sheriff Department Narcotic Detective Joe Harris told Drug War Chronicle, "Unless there was an ongoing investigation that hasn't been revealed, what we used to do is if we target a person for carrying lots of money, money suspected to be from selling drugs we would have a dog come to the scene to see if the dog hit on the money. If the dog hits on the money we seize it right then", not later on unless a person is arrested with drugs and carrying money at the same time," Harris said.

Harris went on to explain that when a dog makes a hit on a vehicle this is when to get a warrant to search for narcotics.

Between 2018 and 2020, the Harris County District Attorney Forfeiture Division collected $15.9 million in forfeiture revenue. Over $7.5 million was spent on police salaries and overtime.

Texas Gunslingers Battle for Reform

Harris County prosecutors in Houston unified with their compatriots in law enforcement against proposed laws to restrict civil asset forfeiture over the last few years. Several bills have been filed in the state's legislature by Democrats and Republicans to prevent Texas prosecutors from seizing citizens' money and other assets unless they'd been convicted of a crime.

During one 2019 legislative hearing at the state capitol in Austin, Harris County Civil Forfeiture prosecutor Angela Beaver said criminal charges were filed in all but 5% of Harris County seizure cases in 2018. State Rep. Harold Dutton (D-Houston), who has filed legislation to require convictions for forfeiture. Scoffed at Beavers' numbers.

"I'm going to tell you as a practicing lawyer in Harris County, I don't think you're being honest with this committee," he said.

"Well, we have the stats," she shot back.

But a study of Harris County statistics by the Texas Tribune suggested the prosecutor's numbers were wrong. The Tribune found that during the first six months of 2016, 15 percent of asset seizures did not include criminal charges connected to the stated reason for the seizure -- such as a drug crime -- and nearly 40 percent of seizures did not result in a related conviction or guilty plea.

Proposed Changes to Modify the Way Property is Seized in Texas

To add an extra boost to eliminate civil asset forfeitures against a person's property, although the person hasn't been criminally convicted in a court of law, State Rep. Senfronia Thompson (D-Houston) and then-Republican Senator Konni Burton filed identical bills requiring law enforcement and prosecutors to secure a criminal conviction before property can be legally seized, instead claiming the seized property was more likely than not connected to a crime.

Texas Civil asset forfeiture law needs much reform to equal the playing field for defendants to have a better shot at proving their money or property wasn't intended for criminal activities. The biggest stake in the foray is how prosecutors and law enforcement abuse civil forfeitures to tilt the scales in their favor and undermine the constitutional rights of American citizens.

Democratic State Reps. Harold Dutton and Senfronia Thompson will attempt to re-introduce House Bill 251 in the legislative session beginning in January 2023, to reform Texas civil asset forfeiture Law. Their goal is to make it so that state prosecutors must first convict a person in criminal court to legally seize the individual's property that may or may not be connected to the crime with which they were charged.

Drug War Chronicle contributor and news reporter Clarence Walker can be reached at [email protected]

This Year's Top Ten Domestic Drug Policy Stories [FEATURE]

The good, the bad, and the ugly in US domestic drug policy this year.

Drug overdoses hit a record high in 2022, but may have peaked. (Creative Commons)
1. Overdose Deaths Appear to Have Peaked but Are Still at Horrid Levels

According to Provisional Drug Overdose Death Counts released by the Centers for Disease Control and Prevention (CDC) in December, the nation's fatal drug overdose epidemic has peaked. After reaching a record high of more than 110,000 fatal overdoses in the 12-month period ending in March, that number declined to 107,735 in the 12-month period ending in July, the last month for which data is available. That is a two percent decline from the March high.

While the decline is welcome, drug overdose numbers are still 25 percent higher than they were two years ago and double what they were five years ago. According to the CDC, synthetic opioids, mainly fentanyl, were implicated in more than two-thirds of overdose deaths and stimulants such as methamphetamine and cocaine were involved in nearly one-third. But some fraction of stimulant-implicated overdose deaths are not caused by the stimulants themselves but by stimulant users being exposed to drugs cut with fentanyl.

2. Neither Marijuana Legalization nor Banking Access Pass Congress

Senate Majority Leader Chuck Schumer (D-NY) vowed to make passage of a marijuana legalization bill a priority in this Congress, but it didn't happen. While the House passed a legalization bill, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act (HR 3617) in April, Schumer and congressional allies didn't even roll out a draft version of their Cannabis Administration and Opportunity Act until this July -- 18 months after this Congress began -- and it never exhibited enough bipartisan support to go anywhere in the evenly divided Senate.

Schumer and his Senate allies also repeatedly blocked efforts to get a bill to allow state-legal marijuana businesses access to financial services through the Senate. The Secure and Fair Enforcement (SAFE) Banking Act (HR 1996) passed the House in April, and Senate allies tried repeatedly to attach it as an amendment to various spending bills, only to be stymied by Schumer and his holdouts for full-blown legalization. At year's end, though, while Schumer was finally ready to move forward with it, Senate Minority Leader Mitch McConnell (R-KY) came out in opposition, helping to scuttle one last effort to tie it to a defense appropriations bill.

3. With Biden's Signature, A Standalone Marijuana Reform Bill Becomes Law for The First Time Ever

For the first time ever, Congress passed and in December the president signed into law a stand-alone marijuana reform bill, the bipartisan Medical Marijuana and Cannabidiol Research Expansion Act (HR 8454). Some marijuana reform measures have been passed before, but only as part of much broader appropriations bills. The aim of the bill is to facilitate research on marijuana and its potential health benefits. The bill will accomplish this by streamlining the application process for scientific marijuana studies and removing existing barriers for research by allowing both private companies and research universities to seek DEA licenses to grow their own marijuana for research purposes.

4. Three More States Legalize Marijuana

In May, Rhode Island became the 19th state to legalize marijuana when the General Assembly passed and Gov. Dan McKee signed into law the Rhode Island Cannabis Act. Sales to any adult over 21 at medical marijuana dispensaries that acquired "hybrid retail licenses" began in December.

And in November, voters in Maryland and Missouri approved marijuana legalization initiatives. Maryland's Question 4 came not from the people but from the legislature and amends the state constitution and mandates that the General Assembly "shall provide for the use, distribution, possession, regulation and taxation of cannabis within the state." Missouri's Amendment 3 overcame multi-sided opposition not only from the usual suspects in law enforcement and the political establishment but also from civil rights groups and marijuana industry insiders to eke out a narrow victory. As of December 8, possession of up to three ounces by adults is no longer a crime, but sales to adults will not begin until next year.

But there were also losses at the ballot box this year. The Arkansas Adult Use Cannabis Amendment garnered only 43.8 percent of the vote, while North Dakota's Initiated Statutory Measure No. 1 managed only 45.1 percent, and South Dakota's Initiated Measure 27 came up short with only 46.6 percent of the vote. The South Dakota defeat was especially bitter, given that just two years ago, voters there approved a broader marijuana legalization initiative with 54 percent of the vote only to see it invalidated by the state Supreme Court.

5. The Year of Fentanyl Test Strip Decriminalization

Fentanyl test strips, which detect the presence of the powerful synthetic opioid in all different kinds of drugs (cocaine, heroin, methamphetamine, etc.) and formulations (pills, powders, and injectables) are recognized by the Centers for Disease Control and Prevention as a valuable harm reduction strategy and are increasingly seen by the states as a crucial tool in the fight to reduce drug overdose deaths. When the Biden White House first endorsed their use in 2021, they were considered illegal drug paraphernalia in a majority of states.

Not anymore. As of the end of 2022, 31 states have now legalized or decriminalized fentanyl test strips, with Alabama, Georgia, New Mexico, Tennessee, and Wisconsin doing so this year alone. But that leaves 19 states, mostly in the South and including Florida and Texas where they remain banned.

6. Colorado Becomes Second State to Approve Natural Psychedelic Reforms

Three years after voters in Denver opened the door to psychedelic reform by approving a municipal initiative that made possession of psilocybin mushrooms the lowest law enforcement priority, voters statewide have approved an initiative that decriminalizes plant- and fungi-derived psychedelics and creates a program for the therapeutic administration of such substances. On Election Day, voters approved Proposition 122, the Natural Medicine Health Act, with 53.55 percent of the vote. The victory makes Colorado the second state to enact reforms decriminalizing a natural psychedelic and setting up a program for therapeutic use. Oregon voters led the way on that by approving Measure 109 in 2020.

Proposition 122 has two main prongs: First, it decriminalizes the personal use, possession, and cultivation by people 21 and over of dimethyltryptamine (DMT), ibogaine, mescaline (not derived from peyote), psilocybin, and psilocyn, as well as providing for the sealing of conviction records of people who have completed sentences for the use or possession of those substances. The measure sets no personal possession limits. Second, it creates a "natural medicine services" program for the therapeutic administration of the specified psychedelics and creates a rubric for regulated growth, distribution, and sales of those substances to entities within the program. Only psilocybin and psilocin would be okayed for therapeutic use until 2026. Then regulators could decide on whether to allow the therapeutic use of DMT, ibogaine, and mescaline.

7. Marijuana Social Consumption Lounges Spread

Ever since the first states legalized marijuana a decade ago, one question for users was where to go to smoke their newly legal product. Most states ban smoking outdoors in public or indoors pretty much anywhere except one's home -- and even that can be an issue if your landlord isn't down with it. One solution is allowing places for marijuana users to toke up in a convivial setting, the marijuana social consumption lounge, whether as part of a retail shop or as a standalone business.

Social consumption lounges are now legal in 11 states -- Alaska, California, Colorado, Illinois, Massachusetts, Michigan, Missouri, New Jersey, New Mexico, New York, and Nevada -- although they are not actually up and running yet in some of them. Massachusetts has two lounges now operating; in New Jersey, regulators just approved rules for them; in Nevada, regulators just issued 20 provisional licenses; in New York, they're still waiting for regulators to act; and in California, the state's dozen or so lounges are set to double in number as more localities okay them. Meanwhile, the nation's capital could be next: In the District of Columbia, the city council just approved a bill allowing them.

8. Safe Injection Sites Are Operating in the United States

Safe injection sites, the harm reduction intervention proven to save lives after years of operation in more than a hundred cities in Australia, Canada, and Europe, are finally getting a toehold in the US. New York City's two safe injection sites have just celebrated their first birthdays after opening in late 2021, and in Rhode Island, a two-year pilot program is underway.

But there will be no safe injection sites in California after Gov. Gavin Newsom (D) vetoed a bill that would have allowed pilot programs in major cities across the state. And the fate of a proposed Philadelphia safe injection site -- and the Biden administration's attitude toward them -- remains in doubt. That facility was initially blocked by the Trump Justice Department, and two years later, the Biden Justice Department has yet to substantively respond to lawsuit from the site's would-be operators. Just this month, a federal judge gave DOJ just 30 more days to respond. A positive response would remove the obstacle to further expansion of such sites that fear of federal prosecution brings. Meanwhile, the Congressional Research Service has thoughtfully released a report about other options for getting them up and running, such as passing budget amendments similar to those blocking the Justice Department from interfering in marijuana laws.

9. In DC and New York City, Gray Market Weed Finds a Way

In both the nation's capital and the nation's largest city, unregulated marijuana vendors have popped up to supply pent up demand as both cities endure legalization without legal marijuana sales. In New York City, it's only a matter of time before taxed, licensed, and regulators marijuana retailers are able to open, but in the interregnum between legalization and legal access, the pot scene has gone hog wild with marijuana being sold everywhere -- head shops, bodegas, even from folding tables on street corners -- with one particularly hysterical estimate putting the number at "likely tens of thousands of illicit cannabis businesses." The market isn't waiting for the regulators, and its emergence could undercut the legal businesses waiting in the wings. The city has undertaken limited enforcement efforts, but to little effect so far.

In Washington, DC, a congressional rider barring taxed and regulated marijuana sales has seen something similar, but with a DC twist: a multitude of shops that will "gift" you marijuana when you purchase some other item. The stores call themselves I-71 shops, after the 2014 initiative that legalized marijuana in the city and they even have their own industry association, which estimates there are a hundred or so of them. The city vowed a crackdown in August, but put that on hold the following month.

10. For the First Time, SAMSHA Funds Harm Reduction

In December 2021, the Substance Abuse and Mental Health Services Administration (SAMHSA) announced that it would for the first time ever make grants available to harm reduction groups to "help increase access to a range of community harm reduction services and support harm reduction service providers as they work to help prevent overdose deaths and reduce health risks often associated with drug use." SAMSHA would make available $10 million a year in grants for the next three years.

And this year, the first tranche went out. Some 25 different programs from the Lost Dreams Awakening Center in New Kensington, Pennsylvania, to the Mile High Council on Alcoholism and Drug Abuse in Denver, to the Los Angeles County Health Department got grants this year, almost all of them for $398,960. It's a drop in the bucket compared to federal spending on prohibition -- and compared to harm reduction's full funding needs -- but it's a start.

This Week's Corrupt Cops Stories

A small-town Pennsylvania police chief had a bad habit, an Indiana cop gets caught stealing dope from DEA Drug Take Back campaign, and more. Let's get to it:

In Spencer, Indiana, a Spencer police officer was arrested last Friday for stealing drugs collected during a DEA Drug Take Back campaign. Officer James Bradley Deckard, 39, went down after the state police Investigation Section looked into allegations an officer had taken the drugs. Deckard is charged with official misconduct and theft, both Level 6 Felonies.

In Pittsburgh, Pennsylvania, a former Elizabeth Borough police chief pleaded guilty Tuesday to stealing drugs from an evidence locker. According to federal prosecutors, former Chief Timothy Butler "stole hundreds of bricks and bundles of heroin from the Elizabeth Borough Police Department for his own personal use," and Butler admitted in court that he stole and used the heroin. He pleaded guilty to one count of theft of government property. Butler also pleaded guilty to state charges in August 2019 that included two counts of theft, one count of drug possession, and one count of obstructing the administration of justice. He was sentenced to 55 months' probation on the state charges. He faces sentencing on the federal charge in April.

In Clarksburg, West Virginia, a former state prison guard was sentenced last Wednesday to a year and a day in prison for selling drugs to inmates. Joshua Quinn had pleaded guilty in October to one count of possession with intent to distribute methamphetamine and buprenorphine.

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