Transcript for Seizing the Fourth Redux

[Marc Jacobin]
This is Truth and Other Lies, "Seizing the Fourth". The Fourth Amendment to the Constitution of the United States says, The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. James, what does that mean in 21st century English?

[James Jacobin]
For law enforcement at any level, to enter your home, your place of work, your automobile, or back in the day, your horse and buggy, law enforcement had to go to a judge, a supposed neutral judge, present in writing what evidence they were looking for, where the evidence would be located, then present that in writing to you, the subject of the warrant, and then enter your home, or your place of business, and go to the room in the house, or the refrigerator in the house where the evidence is, look for that specific evidence, and then collect it. And it can only be done with the written authorization of a court. That's what it's supposed to mean.

[Marc Jacobin]
And as far as criminal investigations go, how has the country's track record been with adhering to the Fourth Amendment?

[James Jacobin]
It's like trying to play football on a bowl of Jell-O. It's been adapted like putty to whatever the investigative body wants, and then you get willing judges to sign off on it, and in different cases it goes to the Supreme Court. The biggest problem with it now, Marc, is we now have secret courts.

The subject of the warrant doesn't get to see how the evidence was gathered. You get the probable cause warrant to enter your home, or your cell phone, or your computer.

[Marc Jacobin]
If I were to do an internet search right now for violations of the Fourth Amendment in criminal investigations, would I see a great number of stories about it? Or is this something that, as a country, as a society, that we would grade ourselves at a B or higher?

[James Jacobin]
No. At different points in time, we've abrogated our right to the Fourth Amendment willingly. The biggest example would be after the September 11, 2001 attacks in New York and Washington, D.C., the Patriot Act was pushed through Congress with only one opposition vote in the House, which more or less took away most of the Fourth Amendment rights. And we did this willingly, and then it was renewed by the Obama administration. So it transcends administration or political party.

[Marc Jacobin]
So the federal government gets a failing grade on its adherence to the Fourth Amendment?

[James Jacobin]
Huge failing grade. Well, I mean, I'm sure they'd give themselves an A+.

[Marc Jacobin]
You don't get to ask the student what grade he gets. At least not in the old school way of doing things. I know things are different now.

[James Jacobin]
In the words of the late, great Mr. Miyagi, no such thing as bad teacher, only bad student.

[Marc Jacobin]
Today's show is going to focus specifically on how government has found an end run around the Constitution. And they've done this by parsing words and basically committing crimes against the people in their endless pursuit of revenue, of easy revenue, without having to go through the obstacle that is the people to level more taxes to get more revenue. And it really is emblematic of the separation of the governing structures from the people and that government at all levels, especially when you look at civil asset forfeiture, has now become more of an overlord than a representative to protect the means and interests of the people.

[James Jacobin]
Yeah, we're going to have to figure out a new phrase other than civil asset forfeiture. It's incredibly difficult to say.

[Marc Jacobin]
How about theft by the government? It's straight up theft. It's highway robbery.

[James Jacobin]
How does that all work? What's the end around that they're utilizing at this point to get all this, these civil asset forfeitures from the public? Now is some of this related to RICO or massive drug operations?

[Marc Jacobin]
It's funny you should mention that because it is a problem that arose for the people as a result of this never ending war on drugs that we seem to be losing, but not quitting. At least in Vietnam, eventually we took our guns and went home.

[James Jacobin]
You don't ever want to win a war where you can constantly get funding for the war. I mean, that's pointless. Why would you want to do that?

[Marc Jacobin]
Well, that's true. When you consider that we've been at war since August 2nd, 1990, imagine this, you're driving through East Texas and you get pulled over. The police officer pulls you over for some trumped up charge.

He says that you have a broken taillight. He decides that because you have a broken taillight and because he doesn't like the way you looked at him, he's going to search your vehicle and he finds $5,000 in Amazon gift cards that you're taking to the local orphanage and he decides that because these may be the proceeds of a crime that he is now going to impound those gift cards. He's also going to impound your vehicle.

You catch a cab or you get an Uber back to Dallas and your gift cards and your vehicle go to the local police station where the vehicle gets auctioned off and they take this money and they fly the cops and the judges and the prosecutors to a big party in Hawaii. And this is not an exaggeration. This actually happened.

I'm cobbling together different components of the story. I'm not exaggerating what they do with the proceeds of civil asset. Now you are never charged with a crime because you didn't do anything wrong.

However, your property, your car and your Amazon gift cards, they are actually charged with a crime using civil proceedings. And when you read the charging statement, it will say the city of Tennehaw, Texas versus 50 Amazon gift cards versus James Jacobin's 1974 AMC Gremlin. And so they sue these inanimate objects, which have no rights of course, but apparently they can commit crimes.

They get a judge to rubber stamp that forfeiture document and all of a sudden your property now belongs to the city of Tennehaw, Texas.

[James Jacobin]
Yeah. And there's not a lot of recourse because you would have to then spend quite a bit of money on attorneys, more or less fighting city hall on all of this. And you're not going to win that.

[Marc Jacobin]
There is no recourse because there is no legal protections. It's a civil suit. Once civil suits are decided, very rarely are they reopened on appeal.

[James Jacobin]
Yeah. That's just a matter of collecting and since they already have the assets.

[Marc Jacobin]
They collected the asset first. You have to have technical grounds to reopen a civil suit. You have to say the judge did something wrong and so the suit has to be reconsidered.

Well, the judge didn't do anything wrong because all he has to do is rubber stamp that document and he's followed procedure.

[James Jacobin]
It's interesting, Marc, a good example that immediately comes to mind is there was a guy driving through Utah a few years back and he had several thousand dollars in cash stuffed in his guitar. It's kind of his life savings. He got pulled over for some offense and he panicked when the officer pulled him over because he had all this cash.

When the officer found the cash, he was like, what's this? He's like, oh, I don't know. I'm holding that for a friend.

He just panicked. He didn't know his rides or he just panicked. The guy wasn't a drug dealer.

There was no criminal record and he was just moving across country. They seized the money and then when the guy came back to get the money, the law enforcement agency said, if you can't give us a name of the person whose money it belonged to, then you forfeit the money because you told the attending officer that it wasn't yours. Although he was, again, just like the case in Texas, never charged with anything, he lost all this money.

[Marc Jacobin]
And as you can see there, there's an end run around Miranda. He wasn't advised of his rights. He didn't have to be advised of his rights because the charge is against the property, not against the person.

[James Jacobin]
And what he did do, because the officer said, oh, hey, do you mind if I search your car? Apparently he said, yeah, I don't have any, he said, you know, do you have any weapons or drugs in here? And he said, no.

He looked through the car, found the money. But by that point, the court did consider him giving his informed consent so that all of his Miranda rights and constitutional rights are gone, according to that judge. These kinds of laws were set up to bring down organized crime, international drug trade, major worldwide money launderers, so you can civilly seize the ill-gotten gains from high-end, well-orchestrated criminal activity.

But mainly, like most laws that are written on impulse, like the Patriot Act, it gets used by local authorities for things like this.

[Marc Jacobin]
Right. And even though it was designed to bring down powerful drug lords, it doesn't mean it was constitutional to begin with.

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[Marc Jacobin]
Philadelphia had their own little racketeering machine going on there. Up until a suit that was brought last year, or settled last year, Philadelphia had seized 1,200 homes, 3,500 vehicles, upwards of $50 million in cash. Most of the people were not even charged with a crime.

In Tennehawk, Texas, I mentioned that earlier in our little vignette, civil asset forfeiture increased in Texas after a 1989 law allowed prosecutors and law enforcement to share the revenue. And so they started this practice of stopping drivers for no reason. The ACLU estimated that between 2006 and 2009, $3 million was seized, upwards of 140 victims.

A lawsuit that was brought in 2004 was declined to be heard by the state supreme court in Texas because they said that this law had already been adjudicated in 1957. The government really has no interest in protecting the people at any level.

[James Jacobin]
If the law was made in 1957, there's no way it can be overturned.

[Marc Jacobin]
Yeah, there's no reason that 50 years later we should revisit that law because economies have changed. There's a new war on drugs. Little pissant towns in Texas are turning it into their own money machine.

A million dollars a year in revenue from civil asset forfeiture.

[James Jacobin]
This may be changing though. Earlier in the summer, the Supreme Court agreed to hear a new case coming out of, I believe it was Indiana, that is going to take a long look at this. Over there in Indiana, they arrested a man on a drug charge suspicion and seized about $10,000.

And although he was acquitted, the court still ruled that he forfeited all of his assets even though he was found not guilty. This moves beyond the fourth amendment, goes into double jeopardy. Real double jeopardy, not a movie.

Not specific double jeopardy, but you can be found not guilty in a court of law, but the court can still say because you were charged with it and found with these assets, we know wink wink that you got them illegally, you just forfeit them, period. And there's no recourse. So the Supreme Court is going to take a look at that.

And for all you conservatives out there who are so happy that you have all these conservative justices, the Supreme Court rulings throughout the year that have held up these civil asset forfeiture and seizure programs have been conservative justices. So good luck.

[Marc Jacobin]
Chief Justice John Roberts has been anything but a conservative voice on the bench.

[James Jacobin]
The same people that are always howling about their rights from the second amendment and on and on, and they should, are the same people that support the people who continually scale these back. What do you think happens next year?

[Marc Jacobin]
I think things get worse before they get better because these things have inertia. Government has more inertia to be greedy and to trample rights than the people have the ability to resist them because it happens in little bits and pieces and it happens to Bob over here and to Jane over there and they're very isolated and because the press is so busy being distracted by less than shiny objects, it doesn't get the attention that it needs to create this outrage that apparently is so effective at creating social change.

By the time people understand how big of a problem it is, it will be too big to fix because it occurs at every level. There's federal asset forfeiture, there's state asset forfeiture, cities do it, counties do it. You would need, I think, a constitutional amendment that says you're not going to do this, cannot bring civil suits against inanimate objects, blah, blah, blah.

You basically have to rewrite the constitution to tell people, look, follow the constitution and stop doing these end runs around it.

[James Jacobin]
To add on to your point of what a big, massive problem this is, Marc, in Michigan, a report was released recently. So now we've covered Texas, Philadelphia, Indiana, now let's move to Michigan. Over 950 people in one year, one calendar year, I think it was 2015, had upwards of millions of dollars of assets seized collectively in separate cases and a thorough report done by a local newspaper found that 736 of these people were never convicted of a crime and most of which were never charged with a crime, but they all still lost their assets.

That's 736 people just in one area of Michigan in one year.

[Marc Jacobin]
There was a guy who had money in an armored truck that was seized as part of an actual criminal investigation. He had a couple of million dollars in there. They seized his assets as part of this criminal investigation.

He hasn't gotten his money back. That's like the guy in the house next to you committing murder and then the cops coming and seizing your house because you live next to that guy.

[James Jacobin]
It's gangsterism. It's governmental gangsterism. I know someone who's friends with an assistant district attorney in the Bay Area.

So I'm reporting in a third-hand conversation. The reason they do it is because the prosecutors know that these people are dirty. If they can't get them off the street, at least they'll get the money off the street.

[Marc Jacobin]
It comes back to the ends justify the means. And how does the prosecutor know they're dirty? That's so unconstitutional.

[James Jacobin]
Well, they don't know they're dirty. They just want to win cases in it. And again, if they're drug dealers, that's one thing, although they are still entitled to constitutional rights and should have a fair process on whether or not to seize their assets.

But when you look at the names and the victims of these asset seizures throughout the country, a lot of these people are just regular people. You've stated case after case of this, but when the prosecutors or the local officials in these numerous states come out, the first word that they always say is drug trafficking because the American public, rightfully so, doesn't have a lot of patience for that. When you say drugs and say drugs and kids, they're willing to put up with just about anything.

Like, oh, well, these people were drug dealers. So, you know, screw them. But in most cases, they're not drug dealers.

[Marc Jacobin]
Like in 99.9%, I mean, El Chapo wasn't even the victim of civil asset forfeiture. The very target that this law was designed to take down.

[James Jacobin]
This does play into a larger theme, Marc, is we do have an enormous media in this country. And you and I talk about it all the time. It's shocking in so many ways that this doesn't get full coverage that a program like 60 Minutes or one of these cable news programs that's constantly looking for programming and the political parties are always saying, we're out for the little guy.

Everyone's talking about rights, rights, rights, rights all the time. You could have stories going on 24 hours a day, seven days a week on the front of the New York Times, the headlines on CNN, the top of the Drudge Report on all of these cases. But for whatever reason, I guess it just doesn't get them the ratings or the profit they need to print the stories or to investigate this.

[Marc Jacobin]
I would be curious to hear from Anderson Cooper why they don't cover civil asset forfeiture. If they have a 24-hour news cycle, they could cover all of the cases of civil asset forfeiture 24 hours a day, seven days a week.

[James Jacobin]
I think you hit on it. It's a way to tax people and collect taxes and then use that money any way you want. Because most general funds in municipalities at every level, through regulation or law, those funds have to be earmarked for different programs.

There's accounting, there's budgeting, but when this money comes in, it's a free-for-all. Like you said, the people in Texas just went on vacation with it. The money becomes not just the property of the municipality, it almost becomes the possession of the people running the municipality.

[Marc Jacobin]
There is no obligation on the part of the prosecutors or law enforcement to use that for the good of the public.

[James Jacobin]
Yeah, it's not like they're taking this money and turning it around and dumping it into education. They use it for whatever means that they deem necessary because the laws are so vague and the Supreme Court has done literally nothing. It's like if you get pulled over for DUI.

Before you even go to court, in most states, the Department of Motor Vehicles suspends your license for a year. The states fall back on, well, driving is a privilege, not a right. So suspicion of DUI, we can take away that privilege for a year while we investigate whether or not you even committed a crime.

Okay, let's just say that's fair enough. You eventually do get your license back, but before you get a trial or a hearing, you lose your license. In this case, it's a similar principle of, we're going to take all your money simply because we suspect you of crime, but you're never going to get it back.

So they've taken it to another level.

[Marc Jacobin]
And administrative punishment so that they can circumvent the rights of the accused. Suspending someone's license based on suspicion of drunk driving is just as heinous. Now they get away with it because drunk driving is bad, but that's the beginning of the so-called slippery slope.

Is that, well, if it's bad, then we should suspend their rights. And if that's bad, we should suspend their rights. But then who determines what's bad?

And then you have little towns in Texas running around deciding that driving through their county is bad and worthy of seizing your property.

[James Jacobin]
You just hit on something there. Administrative punishment. This is extrajudicial punishment.

And let's stick with the DUI analogy. When you complete your DUI program and go through that, plead guilty to a misdemeanor, go through the alcohol training or whatever you've agreed to do. At the end of that, in most states, you have to then go reapply to the DMV to get your driving privileges because they're not rights.

Depending on different factors, that may or may not happen. It's completely outside of the judicial process. The people in the civil asset forfeiture scenarios don't even have a DMV to go to.

There's no money MV to go to. There's no Department of Forfeit Assetors to go to and write a letter to a bureaucrat to try and get your money back.

[Marc Jacobin]
You actually have to sue a judge. That's what they did in Philadelphia. They sued a number of people, including the judge, and that was the only way that they were able to get some recompense for the situation.

[James Jacobin]
What did the judge do when he got sued?

[Marc Jacobin]
He lost. Do you know where the concept of civil asset forfeiture came from, James? No idea.

Pirates. The concept of civil asset forfeiture can be traced back to colonial England and their attempt to address piracy on the high seas. And they simply said that any ship that was suspected of piracy could be impounded and all their goods taken.

The net effect is that the governments are treating citizens like pirates.

[James Jacobin]
Pirate analogy is a good one because you're more or less just taking through force or the threat of force property that you want that someone else has.

[Marc Jacobin]
Doesn't matter whether or not they've been charged with a crime or proven that they committed the crime. You just use the law as a way to get what you want. That's the really sad part here because we're America.

We broke away from Great Britain because of these unfair practices against people. And now slowly but surely over 240 years, these government abuses have crept back into the power structures and the people are so distracted by everything else that's going on that they just allow it to happen.

[James Jacobin]
Because it's not a social justice cause. And it's interesting if I teamed up all the social justice warriors from across the country and got them in a room, I got them to listen to what we had to say. This is something that you could actually affect real change with because when you want to talk about poverty and economics and fighting the man and speaking truth to power, speaking truth to power is not having a millionaire celebrity go on TV and say Donald Trump is an a-hole.

Speaking truth to power would be changing something like this because it's a constitutional right that has been watered down to the fact that the rights now reside with the government. They don't reside with the people in these cases.

[Marc Jacobin]
And as far as social justice goes, the vast majority of victims in these cases are minorities. One of the defendants in the Texas case admitted it. He said, look, if you were out of state, you looked like you didn't belong, meaning you weren't a white person, then you were going to get pulled over and have your assets seized.

[James Jacobin]
Wow. Someone actually said that?

[Marc Jacobin]
Yeah. This is a huge social justice case because of the imbalance towards minorities to be victims of the crime, victims of government crime, no less.

[James Jacobin]
You turn on the TV and you have a person of a certain race or gender do something to another person of a different race or gender. It's just one incident. Maybe no crime was committed, but they're being rude or so forth.

This goes viral, right? You've got actual documented case after case in all 50 states. And if we can now add the minority aspect into it, and if that indeed is happening and the person who said that, if they're in a position to implement that, that's actually called racism.

[Marc Jacobin]
Yes. Yeah. That's real racism.

[James Jacobin]
Institutional racism that goes well beyond calling people names or not giving them a job. You're taking everything they have.

[Marc Jacobin]
It's no different from New York City's stop and frisk law. In the 1990s in Washington, D.C., they used to call it driving while black. We've passed constitutional amendments.

We've passed federal laws to say everyone shall be treated equally. And yet members of the federal government at all levels of government continue to create institutional racism.

[James Jacobin]
Let's make that comparison. Rudy Giuliani, the mayor of New York, America's mayor, now a drunk, stumbling, delusional TV pontificator. But back in the 90s, he was credited for lowering the crime rate in New York City, mainly through the stop and frisk policy, which is as unconstitutional as you could possibly imagine.

Stop and frisk. A lot of people you talk to, because I spent some time in New York, were okay with giving up the rights because it was happening to other people. And crime went down because crime didn't need to go down with these Gestapo tactics.

So the public was like, well, crime went down. What do we care? I wasn't being stopped and frisked.

It was those people over there and they wouldn't have been stopped if they weren't doing something wrong. This is the same thing. This is stop and frisk all your money.

And the American public accepts it because the prosecutors come out on TV with their friends in the media and they say, well, this is drug dealing money. This is trafficking money. This is a danger to the community.

People are like, oh, well, they're a drug dealer. But the difference between this is with stop and frisk, although highly unconstitutional, there was results. With this, there's no results.

The drug trade is thriving. Millions and millions and millions and millions of dollars changing hands every day.

[Marc Jacobin]
Getting back to the federal level, you have the criminal forfeiture, which means that if you are found guilty of a crime, then your assets that are associated with that crime can be seized as punishment. Okay, I'm good with that. You can't profit from your bad deeds.

They also have civil judicial forfeiture, which is the action of civil asset forfeiture we've been discussing. Now, these first two have to go before a judge and most forms of civil asset forfeiture have to go before a judge, which might sound like you're getting due process, but all it really means is that the judicial branch is complicit in the crime against civilians. And then the third type is administrative forfeiture.

This is something that comes from the 1930s, which means that the government can seize your property administratively without a judge being involved, just like they suspend your license and you have absolutely zero recourse. Really? It really blows the mind that the government does this, can get away with it.

They don't see anything wrong with it. The people that are victims are screaming bloody murder, but nobody is listening.

[James Jacobin]
You know, we do have a government shutdown going on right now. I wonder if we just shut down this part of the government.

[Marc Jacobin]
Yeah, yeah.

[James Jacobin]
Of course, people losing paychecks is never a good thing, but for all the people who are now pro-government because there's a government shutdown and people are missing paychecks, the government does need to be shut down in certain places, especially when they do this. When you do research on this, you see over and over again, there's a buzzword or a buzzphrase. Law enforcement uses this as a tool.

Law enforcement has a tool. It's a tool in their tool bag. The tool in the tool bag goes beyond what you're talking about.

[Marc Jacobin]
When it's a billy club and they're walking around hitting people over the head, then they've exceeded their mandate.

[James Jacobin]
Yeah. But again, the excuse of a tool in a tool bag, you know what else they do with this? You did get pulled over with $10,000 and maybe you were peddling drugs, right, but they can't convict you of the crime.

They make deals with you. There's case after case of minor crimes being committed where they say, okay, if you plead guilty to the drug distribution charge, we'll let you keep 25% of the money.

[Marc Jacobin]
Isn't that blackmail or reverse bribery?

[James Jacobin]
Well, it's something because what it means, Marc, the prosecutors are hedging their bets. They're like, okay, we're not going to get the conviction, right? But if we get the guilty plea, we can say we got the conviction and we'll still get most of the money to spend on our Christmas party because there is the outside chance if the guy gets found not guilty, the administrative process, we might not get to keep the entire 10 grand.

But if we get him to plead guilty, we can have the feather in our cap. We can have the crime statistic, do something good for the community, and we can have 75% of the money to go to Hawaii with. So when they say tool, they also use it in plea negotiations.

If the idea is to get drug money off the street, why would you ever let anyone keep the assets in a plea agreement?

[Marc Jacobin]
Because it's not a tool. Well, it is a tool, but a tool for the benefit of government and not the benefit of the citizenry.

[James Jacobin]
What I think we should do, Marc, is spend a little more time on this and go around and try and get the numbers from every state on these civil asset forfeitures and add them all up and see what kind of a number we come up with.

[Marc Jacobin]
The federal government averages about a billion dollars a year.

[James Jacobin]
In five years, Donald Trump would have enough money to get that $5 billion down payment on the wall.

[Marc Jacobin]
Absolutely. The states don't have any mandated reporting requirements. There's really no way to know because it happens at every level.

Not only are the state police seizing things for their benefit, but every municipality potentially is guilty of civil asset forfeiture.

[James Jacobin]
And then people wonder why situations happen in the more rural states where you every now and then have these armed standoffs, right?

[Marc Jacobin]
Right. Right. Right.

And they're always written off as these right-wing gun nuts who are anti-government or anarchists or in some way live on the fringes of society when the fact is there are far more many people being wronged by government than people taking an armed stand against government.

[James Jacobin]
In the end, you don't really have Miranda rights. You don't have a Fourth Amendment right. And it takes away the most important right from the judicial system, which is due process.

And when you get over into the civil part of it, it's a different process, but it doesn't have the appeals process. And so like you said at the top of the show, there's no recourse. Absolutely none.

[Marc Jacobin]
A lot of this traces back to something that happened in the 1930s that we are going to cover at length. And that was the transformation of the justice system from being driven by people to being driven by appointed members of government. That made the people who prosecute part and parcel and have a stake in the power of government rather than the power of people.

In the research that I've done, this is a major factor. It may even be the genesis of big government. And we'll cover that in a later show.

[James Jacobin]
It's always interesting, Marc. Two of the most distrusted industries are politicians and lawyers. And then you take someone who's a politician or a lawyer and you appoint them to be a judge and you put a black robe on them, and then everyone thinks they're respectable.

And if the judge made the ruling, then it must be right because judges are always fair. A politician appoints a lawyer to a seat. I mean, what could go wrong there?

[Marc Jacobin]
What could go wrong there? A lawyer, the least trusted profession in the country, and they're supposed to be impartial arbiters of truth.

[James Jacobin]
Being appointed by the second least trusted, you know, the political class.

[Marc Jacobin]
This has been Seizing the Fourth Redux, a re-presentation of an episode published originally on January 25, 2019. References to events are proximal to that time period. For additional episodes of Truth and Other Lies, visit jacobinbrothers.com.