cross posted at mLaw

Don’t Look Suspicious

A Sheriff in rural Nevada is defending his office’s new use of an old tactic in his own private battlefield as the world-wide-war-on-cannabis continues to sputter and stumble. Sheriff Ed Kilgore of Humboldt County Nevada, a rural county in Northwestern Nevada, says that the two speeding stops that his deputies carried out where more than $60,000 was seized even though no criminal charges or allegations were made against the two drivers were legal and not speed-trap shakedowns.

In one of the instances, Tan Nguyen was stopped for driving 78 in a 75 mph speed zone. Nguyen’s attorney, who filed a federal lawsuit against Humboldt County, asserts that the police stop last September, was a “profile stop” based upon the suspicion that Nguyen was transporting drugs in the rental car that he was driving through Humboldt County. No drugs were found during the police search of Nguyen’s vehicle, and Nguyen was given a simple warning (instead of a speeding ticket).

Nguyen was told during the stop that if he handed over the $50,000 he was carrying with him, he would be freed. Nguyen was required to, as a condition of his release, sign a “property for safekeeping receipt” that indicated that the money Nguyen was forced to relinquish during the police roadside take-down was abandoned or seized and was therefore not returnable. Deputy Lee Dove is alleged in the federal lawsuit to have intimidated Nguyen into signing the release telling the speeding suspect his vehicle would be impounded unless he “got in his car and drove off and forgot this ever happened.”

The Humboldt County Sheriff’s office and the Humboldt County District Attorneys Office have refused to comment on the two arrests that are the subject of the federal lawsuits stating, “as a matter of policy, we never comment on pending litigation.” But at the time of Deputy Dove’s roadside cash bonanza speed-warning incident, the Humboldt County Sheriff’s office issued a self-congratulatory press release that included a photo of Deputy Dove and the $50,000 seized from Nguyen, which said in part; “This cash would have been used to purchase illegal drugs and will now benefit Humboldt County with training equipment. Great job.” Would have been used…really?

The speed concerned sheriff’s deputies of Humboldt County stopped Denver resident Ken Smith in December who was also, according to the federal lawsuit that he filed against the county, required by deputies to relinquish $13,800 he was carrying. Smith, also stopped by Deputy Dove, was held, according to the deputy, because of an outstanding warrant for a man named Smith. Smith was never charged with a crime and was eventually released, but the money he was carrying and a handgun were “seized” by Deputy Dove. As it turns out, the Smith that Deputy Dove stopped, held and seized property from was born on a different day and is of a different race than the wanted Smith (personal identifiers that Deputy Dove was well aware of during his speed-confiscation-stop). Held due to a warrant…really?

The tactic that Humboldt County is manipulating, civil forfeiture, is both legal and controversial. In situations where an arresting officer suspects an individual obtained property illegally or intends to use property for illegal purposes, police officers can seize the property of an arrestee or suspect. But, in situations such as those detailed in the federal lawsuits filed against Humboldt County, where police stops are based upon subjective determinations made by officers on the ground, allegations of profiling have given rise to further allegations regarding police shakedowns and conflicts of interest.

Humboldt County deputies are “trained to recognize evasiveness during questioning,” and report that they have seized over $180,000 from suspicious drivers over a two year period. Money that they proudly report via press release that they have targeted uses for within their police force. When property such as money is charged with a civil offense – the basic idea behind asset forfeiture, former property possessors have a steep judicial hill to climb in having their property returned to them. In many incidents, as in the two cases that resulted in federal lawsuits in Humboldt County, there is often no criminal arrest or criminal charges filed against the property possessor. The Humboldt County District Attorney is correct in stating that individuals whose property (including cash) is seized have a right to make a claim for their property in the courts.

But, in such proceedings, in a topsy-turvy fashion, the person claiming the property, who may have never been even charged with a criminal violation, is required to prove that his possessions are his possessions and that he came into possession of what was confiscated by officers lawfully; i.e. putting the claimant in the position of having to prove his or her innocence – contrary to most other instances in American jurisprudence, where one is innocent until proven guilty.

It is because of instances of civil forfeiture like those Humboldt County has been sued over that “civil asset forfeiture has been harshly criticized by liberals and civil liberties advocates for its greatly reduced standards for conviction, reverse onus, and financial conflicts of interests arising when the law enforcement agencies who decide whether or not to seize assets stand to keep those assets for themselves.”

Humboldt County law enforcers claim that their confiscatory efforts are indeed well-intended, stating; “We’re trying to combat crime in our own little way in the war on drugs. We’re not just talking about people driving to buy medical marijuana. These are drug traffickers with guns who may be staying in our hotels.” Staying in your hotels…really?

An interesting side note in all of this is that Humboldt County’s rough and tough Sheriff, Ed Kilgore – a gun-lover, has “put the Obama Administration on notice” with regards his interpretation of the second amendment, advising the president that he will not enforce any new gun laws that he feels violate his personal interpretation of the constitution. His vision of the constitution…really?

Additionally, Humboldt County was the subject of a lawsuit that made its way up to the US Supreme Court in 2004, where sheriff’s deputies’ practice of requiring uncharged citizens to identify themselves at the threat of arrest was challenged. The Supreme Court agreed that (given precedents set in other cases) requiring citizens who have done nothing wrong and are not the subject of a law enforcement investigation to identify themselves on the threat of being arrested was all A-OK with “folks” on the court who opined that the narrow requirements of Nevada’s “stop and identify” law were met and the petitioner’s rights had not been violated in that case.

The majority opinion was, however, countered by two justices (Stevens and Breyer) who both recognized that the acquiescent to and in service of America’s para-militarized drug-warring local coppers majority opinion was problematic. Stevens wrote, “The officer in this case told [Hiibel] that he was conducting an investigation and needed to see some identification. As the target of that investigation, [Hiibel], in my view, acted well within his rights when he opted to stand mute. Accordingly, I respectfully dissent.” And, Breyer conveyed his concern that giving on-the ground police such latitude to question an uncharged citizen would be dangerous and could open the door encouraging aggressive police officials to tramp upon the constitutional rights of Americans.

So, in sum – A self-promoting county sheriff, who thinks he has the right to not prosecute laws due to his personal interpretation of the US Constitution, has conveyed that his officers have done nothing wrong and broken no laws as they stop “certain vehicles” and confiscate large sums of money from US citizens who have not been charged with any crime, so he can buy a bunch of cool-neato law enforcement equipment, in a county where sheriff’s deputies (it was in fact Deputy Dove whose behavior landed the state in the Supreme Court because of his 2004 “stop and demand ID on the threat of arrest” incident) seem to feel they can stake out their own personal territory when it comes to enforcing (or forcing as the case may be) the state’s laws against just the specific types of folks that they “know” are really law breakers.

As a majority of our Supreme Court Justices – supremely attentive to the needs of the military, law enforcement, the national security state and corporate oligarchs – would surely exclaim: ‘no laws were broken – nothing to see here – move along now.’

Photo in the public domain.