Category Archives: Race and Criminal Justice

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.

Minnesota Court Waters Down Legal Definition of Illegal Drugs: Toilet Water Now Criminal to Possess

Water Bong

Water Bong

The Minnesota Supreme Court, in a 4-3 decision, has now ruled that Bong Water (water which had been 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.  The crime is the most serious felony drug crime in Minnesota, with a maximum penalty of 30 years in prison for a first offense.  The case is Minnesota v  Peck, A08-579, Minnesota Supreme Court, October 22, 2009.

The majority opinion takes a literal view, arguing in essence that any amount of a substance dissolved in water makes that water a “mixture” containing that substance.  Perhaps.  But, since Minnesota’s criminal prohibition laws are organized to make greater quantities of drug possession a more serious crime than smaller quantities, such a simple-minded view defeats the purpose of the quantity-based severity levels. If a person possessed one-tenth of a gram of methamphetamine, they could be charged with a Controlled Substance Fifth Degree crime, with a five-year maximum.  But – dissolve the one-tenth of a gram in 26 grams of water, on purpose or by accident, and now under this new decision from the Minnesota Supreme Court, that can be prosecuted as Controlled Substance First Degree – with a 30-year prison term.  Just add water for five times the sentence!  In the case of marijuana, a non-criminal amount under 42.5 grams smoked through a bong could give the police and government lawyers the legal right to charge a felony drug crime with possible prison time – not for the marijuana, but for the bong water. This defeats the legislative purpose of treating larger quantities of drugs more harshly.  Worse – it makes no sense.  It is irrational.  It leads to an absurd result.

What is a bong?  It is a water pipe.  A water pipe, such as a bong, can be used to smoke tobacco, marijuana, methamphetamine (as in the Peck case), or anything that can be smoked.  Smokers view the water which has been used to filter and cool the smoke as something disgusting, not unlike a used cigarette filter, to be discarded – sooner or later.  The used water is not commonly used for any other purpose.  Apparently a naive or misguided police officer testified otherwise in the Peck case, and – amazingly -the four in the majority of the court appears to have given that testimony credit.

In general courts have made efforts to prevent police and government lawyers from having the ability to manipulate the facts or evidence in such a way as to either create criminal liability for targeted people, or, to increase the penalty the target might suffer.  Here is an instance to the contrary.  If the government wants to charge a more serious drug crime – what to do?  Just add water!  (Water is heavy – heavier than drugs.  Drug crimes are based on weight.  Water is not currently defined by law as an illegal drug.) Frequent news reports remind us about the drugs in the rivers and most of our municipal water supplies (not concentrated enough to hurt us, we are reassured).  Type “in water supply” into your favorite internet search engine and you can read thousands of reports of scientific studies documenting this.  As a result, if you have water sourced from a river, like we do in Minneapolis, then you could now be charged with a Minnesota Controlled Substance First Degree Crime (toilets tanks hold way more than 25 grams of water with illegal drugs dissolved).  This can be a particularly troubling variation of the trace-drug criminal case, where only a trace of suspected illegal drugs is found.  Trace cases can be problematic, in part because there may not be enough of the suspected material to be tested twice for its chemical identity. The widespread scientific reports of cocaine contamination (in trace amounts) on most United States currency, would be another example of “trace evidence of illegal drugs possession.”  Under the Peck case, we can have a situation of a trace amount of illegal substance “mixed” with water, which is heavy.  Or – we could have a relatively small amount (by weight) of illegal contraband mixed with a large amount of (heavy) water.  Even if you believe some drugs possession should be a crime – should one gram mixed in water be treated the same as one kilogram (1,000 grams) in powder form?

What can be done about this particular absurd injustice?

  1. Ask the legislature to repeal the criminal prohibition laws.
  2. Remember this case at election time.  Vote!  You can vote for or against Minnesota Supreme Court candidates, including incumbents.
  3.  Jury Nullification, or the rule of jury lenity.  Jurors have legal rights to acquit, despite the facts, despite the judges instructions on the law.  Just do it!
  4. Remove all water sourced from rivers from your home and office, including toilets, in the meantime.

At least the dissenting opinion, by Justice Paul H. Anderson, joined by Justice Alan C. Page, and Justice Helen M. Meyer, exhibits common sense.  Here is what Justice Paul Anderson wrote in dissent of the majority opinion:

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.

It’s a good read (link at the beginning of this article).  It is shocking that four in the majority could have possibly disagreed with the dissenters.  Hopefully, this is the beginning of the end of the 100 year experiment in using criminal blame as a strategy to solve a public health problem.

It’s time to change the laws.  This absurdity makes it all too clear. Written by Thomas C Gallagher, Minneapolis Drug LawyerFFI:  Marijuana Laws in Minnesota

Avoiding Traffic Stops – New Minnesota Laws 2009

Another year, another truckload of new laws – the usual, right?  How does that affect you?  For the most part, hopefully it doesn’t.

But when you consider the fact that most criminal law problems – large and small – start as vehicle traffic stops; it pays to be aware of new laws allowing police to stop you.  Some of these went into effect June, July and some August 1, 2009.  All represent an expansion of government power and a reduction of your liberty and freedom.

 Do you remember several years ago when advocates of another law to mandate seat-belt use upon penalty of a petty misdemeanor fine, reassured us “don’t worry, we will never ask for a primary seat belt law;”  How long is “never,” again?  Not that long, it seems.

It starts with a traffic stop...

It starts with a traffic stop…

Police now can stop you for merely not wearing a Seat-belt in Minnesota.A “primary violation” seat belt law gives police the legal right to stop a vehicle if someone in the vehicle appears to not wear a seat belt.  The previous version of the seat belt law did not allow traffic stops solely for the appearance of not wearing a seat belt.  This year’s law does.  The law eliminates personal choice, and personal responsibility.  It hands over more responsibility and more power to the government, taking it away form the individual.  It reduces the need for people to educate themselves, be responsible for themselves, and develop a personal moral code.  It reduces your freedom.  As usual, they claim sacrificing your freedom is worth it – for your own good.

The new “primary” seat belt violation law increases the potential for stops and arrests resulting from racial profiling.  Racial profiling is a real problem – difficult to solve.  Though police generally don’t view themselves as racist (few people do), they are no different from the rest of us, and are no more perfect in relation to racial stereotyping and its effects.  We know that when it comes to race, there is a disparate impact upon people identifiable as part of a racial minority group that can only be explained by race.  Creating more opportunities for police to stop people for petty, technical violations inevitably leads a worsening of the racial profiling problem.

Social control by force – by law enforcement – is corrosive to our culture and our youth.  Why learn responsibility as an individual if the government allows you little of it, and controls ever smaller aspects of your life – year after year, law after law?  This seat belt law gives law enforcement yet another reason to pull someone over, and to find another, bigger reason to interfere with your life.

Expansion of Child Seat law.

Under the new law, children in a motor vehicle must now be in a child passenger restraint system until their eighth birthday or they reach 4 feet 9 inches tall.  Of course, this is yet another reason for police to stop you if it appears you might be in violation of this.

Global Positioning Systems on Windshield .

Global Positioning Systems (GPS) can now lawfully be mounted or located near the bottommost part of a vehicle’s windshield.  Previously, anything mounted on the front or rear windshield put the driver at risk of a traffic stop by police.  The “obstructed windshield” statute, used by police ot justify such traffic stops, does have some language about obstruction to the drivers view – yet, it gave police the legal excuse to stop someone if there was anything on the windshield, or between the windshield and the driver.  These have included RADAR detectors (otherwise legal), notepads stuck to the windshield, air fresheners or other items hanging from the rearview mirror, and the like – in addition to GPS units mounted to the windshield.  At least now there is an exception for GPS units mounted to the lowest portion of the windshield.  Presumably in that location, the driver’s view will not be impeded.

What about a RADAR detector?  Prudence might argue for a newer RADAR detector with a GPS unit incorporated in the same unit.  That – or don’t mount it to the windshield.  (See, Speeding Laws in Minnesota for a discussion of MN speed law.)

Tips for Avoiding Traffic Stops.

Other than changing your race, age, car, etc., how can you minimize your risk of a traffic stop?  Of course, obeying the traffic laws seems obvious.  But what about all of the technicalities the police can use to either ruin your day, or ruin your life?  Here’s a list of a few:

  1. Avoid placing any decals of any kind on your front or rear windshield, even where instructed to do so by a government agency.  Instead, place them on a side window, where necessary.
  2. Make sure there are no cracks in your windshields.  In winter, make sure they are free of ice and snow.
  3. Avoid hanging items from your rear view mirror, like air fresheners.  Place them below the windshield level.  Avoid hanging anything from sun visors.
  4. Make sure all of your lights, brake lights, turn and lane change indicator lights, as well as license plate illumination light – are all working.
  5. Make sure your vehicle is displaying proper license plate or other registration evidence.
  6. Make sure your vehicle’s suspension, alignment and steering are good enough that your vehicle does not weave.
  7. Avoid tinted glass police may view as illegal.  (And work on changing this law.)

Given the plethora of overreaching laws already in existence, it has never been more important to prevent police from violating your privacy and liberty interests.  Traffic stops are the narrow end of the wedge the government can drive into you and your life, to hurt or destroy you.  Every police contact creates a risk of a life-altering criminal charge – innocent or not.  Every smart citizen should strive to avoid these police contacts in the first place.

FFI: Author, Thomas Gallagher, Minneapolis Criminal Lawyer.

Race and Criminal Injustice

Is there credible, scientific evidence to support the existence of “race” among humans?  No.  Does that mean “race” does not matter in our society? 

“Race” matters in our society – despite its lack of biological basis in fact – because it is a human, social construct that influences how people perceive and treat each other.  It seems that in the United States we wish that we were beyond race; but the superstition lingers and affects us all.  How does it affect our human efforts at justice in the criminal courts?

Our sense of identity – who we believe ourselves to be, what and who we identify with – has a significant influence over how we perceive events, and other people.  Race, gender, and other socially defined demographic variables are among the ideas that influence our sense of identity, and our perception.

In the United States, our consensus seems to be that judging others based upon “race” is wrong.  People resist recognizing (perceiving) that they themselves could or would do something wrong.  As a result, we as a people tend to believe that attitudes about race do affect other people, but not us as individuals.  Ironically, this kind of projection of an unfavorable characteristic which we deny in ourselves and project onto “the other” is a the key aspect of racial stereotyping.  However we define ourselves and the groups with which we identify as members; we tend to think simplistically – “we” are good; “they” are bad.

Another problem here is fear of the unknown.  We feel that we know ourselves, and the cultural milieu from which we come.  “The other,” the outsider – who comes from a different culture, a different experience – we may lack understanding.  We may think that “they” are unknown to us.  They therefore may seem unpredictable to us, which can lead us to fear them.

The there is the problem social psychologists have called “the self-fulfilling prophecy phenomenon” – captured well in the aphorism “what a fool believes, he sees.”  If a person believes a theory about a member of a perceived “other” group, scientists have learned that the person will ignore all facts inconsistent with the theory and only perceive the facts consistent with the theory – even if 99% of the facts contradict the theory, and only 1% of the facts support it.  Because of this phenomenon, people generally will deem the theory proven true, even though 99% of the evidence disproved it!  If the theory is about people of a perceived “race,” then the result is a racial stereotype.  People who believe racial stereotype theories defend them based upon the argument that they are true, or partly true (because they believe them to be true).  But examined against all of the facts, they are not. 

police light bar

police light bar

One common racial stereotype involves the theory that minority-race people are more often committing crimes than majority-race people, and that is why there is a greater percentage of the minority race community being arrested, charged with crimes, convicted, and sentenced to prison; as compared to the majority-race community.

Of course – numerous studies have been done, by the American Bar Association and others, proving otherwise.  We know that African-Americans use illegal drugs at the same per capita rate as does the general population in the United States.  Yet, people socially defined as African-American are arrested, criminally charged, convicted, and incarcerated at a vastly higher rate than non-African-Americans.

The National Institute of Drug Abuse estimated that while 12 percent of drug users are black, they make up nearly 50 percent of all drug possession arrests in the U.S. (The Black and White of Justice, Freedom Magazine, Volume 128).

from article: the Truth About Black Crime, R. Jeneen Jones, Jan 16, 2000.

And the problem goes beyond illegal drug crime cases: 

Figure 1. Racial Disparity Matrix

Column A                Column B                   Column C                  Column D
Decision Point        % African-                % at preceding       Disparity
                                      American                  decision point         ratio
                                                                            African-
                                                                            American

 Total Population   15                                   N/A                               N/A

 Arrest                        30                                  15                                   2.00

Detention                  35                                  30                                   1.17

Prosecution             37                                  35                                   1.06

Conviction               45                                   37                                  1.22

   a. Probation          38                                  45                                   0.84

   b. Incarceration 50                                  45                                   1.11

source: chart from a 2000 report from the Sentencing Project at page 29.

Given the evidence that people are being treated differently by the criminal justice system based upon “race,” it is clear that the reason is not that minority-race people are committing criminal acts at a higher rate than majority-race people.  After all, the illegal drug use rates are the same, but African-Americans are being disproportionately arrested, charged, convicted, and incarcerated:

  • African-Americans are arrested at much higher rate than people the percentage of all races committing crimes;
  • Of those of all races arrested, a disproportionate percentage of African-Americans are being charged;
  • of those of all races charged, a disproportionate percentage of African-Americans are being convicted;
  • of those of all races convicted, a disproportionate percentage of African-Americans are being sentenced to prison.
  • At each of these significant stages of the exercise of human discretion – by police, by prosecutors, by jurors, by judges, African-Americans are being treated unfairly, and more harshly than the general population.   Yet we must assume that nearly every individual exercising that discretion sincerely believes their decison is not based upon race.  How can this conflict be reconciled?

Though few people view themselves as racist – few police, few prosecutors, few defense attorneys, few judges, few jurors – the aggregate result is one of a strong, unfair impact based upon a person’s “race.”

Putting to one side the racist origins in history of Drug Prohibition laws as well as the severe disparate impact of them on minorities today; the effect is seen across the board for every type of criminal case.  Space does not permit a serious discussion here of the solutions.  Still, here are a few thoghts about solutions.

Awareness of the problem may be a first step.  Be suspicious of any theory based upon race – or race-code words.  And when you hear one of those, challenge it.  When we develop our empathy for others, and get to know and love other cultures, we are on the path towards a solution.  In the end, society is made up of individual people.  We can change ourselves.  We can change our society.  We can make the world a better, and more fair place.  Liberty for one, is liberty for all.

by Thomas C Gallagher, Minneapolis Criminal Lawyer