Monthly Archives: February 2010

Legislative Update: The Minnesota Bong Water Crime Case

Remember the recent Minnesota Supreme Court case that took a literal interpretation of a statute – to an absurd result – ruling that water could enhance the severity of a drug crime?  It was a bare majority decision, 4-3, with a concurring opinion and strongly worded dissents.  After the majority, concurring and dissenting opinions are all tallied, five out of seven wrote that the legislature should amend the statute to cure the injustice.  The case ruled that Bong Water (water used in a water pipe) was a “mixture” of “25 grams or more” supporting a criminal conviction for Controlled Substance crime in the first degree (30 years of prison maximum), though it contained only trace amounts of illegal drugs.

Tap Water Contains Drugs

The case is Minnesota v  Peck, Minnesota Supreme Court, October 22, 2009.  The blog article here, written the day the opinion was published is: Minnesota Court Waters Down Legal Definition of Illegal Drugs: Toilet Water Now Criminal to Possess.

The case gained worldwide infamy.  If trace amounts of criminalized drugs in bong water could be a crime based upon the weight of the water “mixture,” then would not trace amonts of illegal drugs in our drinking water also be a crime to possess?  And if that is the case, which of course it must be, then is not every citizen of Minnesota a drug criminal – by virtue of possessing river sourced tap water?  (Those with well water presumably can rest easy, without fear of a drug-police home invasion.)

A Bill in now being considered by the Minnesota Legislature, for the Safe Drug Disposal Act is an attempt to ameliorate the problem of pharmaceutical drugs in our drinking water supply, and rivers.  It is a crime in Minnesota to possess prescription drugs without a prescription for those drugs.

Will Minnesota lawmakers heed the call of the Minnesota Supreme Court and public outrage and undo the “Minnesota Bong Water Case?”

A Bill has been introduced in the Minnesota House, H.F. No. 2757, to amend Minnesota Statutes section 152.01, subdivision 9a, to read:

Subd. 9a.  Mixture.  “Mixture” means a preparation, compound, mixture, or substance containing a controlled substance, regardless of where purity is relevant only when weighing the residue of a controlled substance.

If adopted into law, this would bring back proportionality of the severity of a drug crime to quantity.

Advocates of drug legalization (regulation and taxation) may have mixed feelings about this reform.  Yes – it would cure an outlandish, gross injustice to people facing exaggerated convictions and prison terms based upon possession of water or other non-drug media.  On the other hand, the Prohibitionists really shot themselves in the foot on this one.  The Minnesota Bong Water case has helped undermine what public confidence there was in criminal drug laws and their enforcement.  As stated in the dissent in the Peck case:

The majority’s decision to permit bong water to be used to support a first-degree felony controlled-substance charge runs counter to the legislative structure of our drug laws, does not make common sense, and borders on the absurd…the result is a decision that has the potential to undermine public confidence in our criminal justice system.

To the extent the public confidence in our criminal justice system is undermined by Peck, the Minnesota Bong Water Case, and its literal interpretation of the statutory definition of a drug; this hastens the day when common sense will finally prevail with the Repeal of all drug Prohibition laws in Minnesota.

Written by Thomas C Gallagher, Minneapolis Criminal Defense Attorney.

The Moral Peril of Minnesota Asset Forfeiture Laws

The Minnesota Senate is now considering a Bill to reform abusive asset forfeiture laws, SF2613.

Let’s review Minneosta’s current law on asset forfeiture (government takes your money): 

  1. The government (police) can take your property at any time if suspicious to them, even if you are innocent.
  2. The burden is on you, not them, to do something about getting a court to look at it.
  3. If you do nothing, they keep your property, your money; and you lose; without any court or judge ever even seeing the case.
  4. If you want to do something about it, you need cash for a lawyer and court filing fees.  The law provides the government a free lawyer and requires them to pay no court filing fees.
  5. The police agency that targeted you and took you down gets to keep 70% commission on the cash, valuables, your vehicle they seize from you.  Could this affect their honesty about their investigation; or, the appearance of propriety?

Property rights for common people are relatively recent individual human rights, against the government or the king.  In 1066, William the Conqueror seized nearly all the land in England.  He exercised complete power over the land, but granted fiefs to landholder stewards, who paid fees and provided military services as a condition for use of the King’s land and people. 

William the Conqueror

Centuries later, the Magna Carta asserted that cash payments were required for expropriations of land.  Over time, tenants held more ownership rights rather than only possessory rights over their land. 

The Third Amendment to the United States Constitution says: 

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” 

The intention of this amendment was to prevent soldiers being quartered in private property as the British armed forces had done in Colonial America by under the Quartering Act before the American Revolutionary War. 

The Fifth Amendment to the United States Constitution says: 

“No person shall be … nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” 

The idea was to destroy what was left of feudalism, where the king or the government owns property, and the common people owned nothing, or owned nothing except at the discretion, whim or caprice of the government.  The third, fifth, eighth and fourteenth amendments of the United States Constitution all are attempts to further this goal.  But history has repeatedly shown us that this struggle for individual property rights against theft or seizure or taking by the ruling government has been ongoing.  Ground has been gained and lost, and gained again over the years, both in politics and in law. 

Hypothetical?

Imagine that you are peacefully driving down the road, having an average day.  Then, you are stopped by people in a vehicle armed with weapons.  They hold you against your will.  They question you in a threatening manner.  The ask for your “consent” to search you and your vehicle, though they make it  appear that it will happen regardless.  They take your personal valuables.  They seize your vehicle.  There is no court process.  It’s just gone.  They have it now.  You no longer do. 

What would you call this?  Armed robbery? 

What if the “people in a vehicle armed with weapons” who stopped you were police officers of the State of Minnesota, acting under the color of the laws of Minnesota?  Now what do you call it? 

“Administrative Asset Forfeiture.”  What does that mean?  

Asset forfeiture laws are a type of government “taking” of private property that has been around a long time, but they have degenerated in recent years from “Judicial Asset Forfeiture” after conviction into “Administrative Asset Forfeiture” on a police officer’s view of suspicion.  What’s the difference?  First, a little background and context. 

If you steal from a thief, is that stealing?

Ask Robin Hood, or the Sheriff of Nottingham.  

There are two basic moral justifications offered for laws permitting the government to seize and keep private property suspected to have some connection to crime – instrumentality and criminal proceeds

Instrumentality.  If a burglar uses special tools to commit a burglary, then the government seizes and keeps those as instrumentality of the crime, this may somewhat disable the burglar from committing a similar crime.  Almost all asset forfeiture seizures in Minnesota are of this type.  The instrumentality rationale for property forfeiture, however, has been stretched wafer thin.  It is now most commonly used in cases of suspected petty crimes like DWI, prostitution and banned drugs possession; not commonly in serious or violent crimes. 

Criminal proceeds.  This type is relatively rare, and involves and attempt to trace (equitable tracing) the source of the funds used to purchase an asset to crime.  These usually involve larger dollar amounts only, well over $100,000 per case.  The type of crime alleged is less important. 

Is the Property Guilty?  Is the Owner?

Nothing Personal: In Rem Jurisdiction.  Asset forfeiture cases, the few that ever make it into court, are usually captioned with the claimant as a party to the lawsuit against the property.  Rem is Latin meaning “thing.” When courts exercise in rem jurisdiction, they assert authority over a thing, not a person.  Like much in the law, there are historical reasons for this. 

If the justification for the “taking” of another’s property is that the owner is a criminal, or that the property is somehow related to crime; should we be certain that the owner really did commit a crime in connection with the property? 

Should police be able to seize and keep your vehicle or other property even though you’ve not been convicted of a crime?  Before you get a hearing before a fair and neutral magistrate? 

In Minnesota today, police can seize your vehicle or other property under circumstances they view as suspicious, keep it, sell it and keep the cash, unless you file a court challenge “EXACTLY AS PRESCRIBED IN MINNESOTA STATUTES SECTION …” within 60 days.  You’ll need money for lawyer and court filing fees – just to get a day in court.  The money they get from your property after they sell it?  “70 percent of the money or proceeds must be forwarded to the appropriate agency…” i.e., the Police Agency that originally took your Private Property.  This is Minnesota’s current “administrative” asset forfeiture scheme. 

What about “Judicial Asset Forfeiture?”

Judicial asset forfeiture is slightly more fair in that it affords procedural due process – the right to notice and a hearing before a neutral magistrate before the government can permanently keep your property.  A serious problem with this type is that a criminal conviction is not currently required before the government can prevail in a judicial asset forfeiture case. 

Who are the victims of government asset forfeiture?

The salt of the earth – the common people of modest means have disproportionately been the victims of government abuses, negligence and shoddy practices in the area of criminal law generally.  When it comes to asset forfeiture laws, it is no different.  When police officers on an asset-forfeiture treasure hunt take cash, gold, vehicles, other valuables from a person who is never charged, never convicted of any crime; what is the cost-benefit ratio for that person to fight for return of the property in court?  Could they even afford (hire a lawyer, pay a court filing fee) to if they wanted to?  Can they do all that in time to meet the 60 day deadline?  Would that cost too much relative to what was stolen from them by police to be worth it?  Do they have enough faith in the legal process to believe it would be fair, anyway?  What will the medium term ramifications of this be, politically? 

The innocent are victims of asset forfeiture laws:  Sometimes the innocent owner is not accused of having any criminal association, but merely an association with another who is suspected, such as a spouse, parent or employer.  This is an anti-marriage law, that encourages divorce of a troubled spouse.  The Minnesota Supreme Court recently published a case that makes this clear, and a majority of the Justices asked the Minnesota legislature to reform the statutes, in the Laase case.  So will the legislature and the government heed this call, from the Court and form the People? 

Is the Minnesota government corrupt, victimizing the weak?  Are its laws a corrupting influence on our good police officers? 

Has the time has come to reform (or repeal entirely) asset forfeiture laws in Minnesota?  Call the legislature.  Support the Reform Bill. 

Author: Thomas C Gallagher, Minneapolis Criminal Lawyer.  Link to his Minnesota Drug Forfeiture Law page.