In February 1761, on the second floor of the Old State House in Boston, a former attorney for the British Colonial government that recently resigned in disgust rose to challenge the authorities.
James Otis, Jr. represented 63 merchants who had been subjected to the whims of British customs agents who were effectively “above the law.” At issue were the writs of assistance that were used to search any property at any time, and seize anything they decided was contraband.
To promote molasses sales from the British West Indies, Parliament placed a prohibitively high tax on any molasses from non-British colonies. But by catering to one colony, Parliament threatened to ruin another. Colonial America had developed vibrant trade between Dutch, French, and Spanish colonies, exchanging lumber, food, and other products for molasses to make rum.
As historian John C. Miller notes, the tax “… threatened New England with ruin, struck a blow at the economic foundations of the Middle colonies, and at the same time opened the way for the British West Indians — whom the continental colonists regarded as their worst enemies — to wax rich at the expense of their fellow subjects on the mainland.”
New England would either have to self-destruct or smuggle in contraband to avoid the tax.
To combat the rampant smuggling of molasses (along with other goods that circumvented a host of restrictive trade regulations), the courts issued the writs of assistance to custom agents.
These British agents could then enter any colonist’s home with no advance notice, no probable cause, and no reason given. If an agent wanted to claim something as contraband, it could be seized without recourse. They could also assign their “above the law” status to anyone else they so chose.
On that day, James Otis, Jr. lost his case in spite of a magnificent speech. The very court he stood in issued the writs, and there was little doubt that he stood a chance.
A man in the audience was so impressed by the speech that he later said, “The child independence was then and there born, every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance.”
That man was one of our founding fathers, John Adams — and James Otis Jr.’s fiery and righteous speech became a basis for the Fourth Amendment.
I am happy these men are not alive to see what is happening today in the nation they helped to forge…
They would be ashamed at how their struggles have been forgotten, their achievements corrupted.
The King’s Agents Are Back
An unintended and tragic consequence of America’s misguided War on Drugs is to blame for new and unconstitutional seizures.
In a 1984 omnibus crime bill, Congress authorized local police departments to take a cut of anything they seized from anyone suspected of a crime through civil forfeiture.
Unlike criminal forfeiture, civil forfeiture empowers cops to seize any property or money they believe was obtained illicitly right on the spot.
The person does not need to be arrested, charged, or convicted for it to happen.
There is no consideration given to the Fourth Amendment.
Then the poor souls who have had their money or property seized have to appear in court if they’re to try to get it back — that is, if it hasn’t already been auctioned off…
Of course, you can’t step foot in a courthouse today without paying a fee, and the fee to attempt to reclaim what is rightfully yours can be steep.
Washington, D.C., for example, charges up to $2,500 for the right to spend months (or years, in some cases) challenging a police seizure in court.
Sarah Stillman has written a long and comprehensive article for the New Yorker documenting how it has been abused nationwide.
In the article, Stillman covers how a cop in Tenaha, Texas, pulled over a couple with two young kids for “driving in the left lane for more than half a mile without passing.” The cop claimed to smell marijuana smoke, although no drugs were found and the couple was not charged with being intoxicated.
While searching the car, the officer seized $6,037 that was going to be used to buy a car.
The couple was not charged with a crime, but the District Attorney threatened them with felony charges for “money laundering” and “child endangerment,” meaning they would be thrown in jail and their children would be seized — unless they signed a waiver that gave their cash to the city of Tenaha.
The examples go on for pages — and get worse, if you can imagine…
Tenaha police also pulled a man over for “driving too close to the white line.” Once again, the cop said he smelled pot smoke, but nothing was found. The officer then seized $3,900 from the accused that was going to be used for dental work — along with his car and all of his possessions.
When he finally agreed to sign a waiver to give up his personal property, the man was left on the side of the road with no money, transportation, or phone. He had to walk to a Wal-Mart, borrow a phone, and his mother had to rent a car to come and pick him up.
A Pentecostal church secretary in Virginia was driving $28,500 worth of parishioners’ donations to buy a new land for his church with his brother-in-law when he was pulled over for “speeding” and the church donations were taken…
A woman in Washington, D.C. had her car seized, because her son was driving it while he had a handgun…
An elderly couple was barely able to stay in the home they have lived in for nearly five decades. Several vans rolled up, packed with heavily armed cops. They gave the couple 10 minutes to take what they could and get out…
This was the first notice that their property was being seized.
The reason? Their adult son, who was living with them, apparently sold $20 of pot to a confidential police informant while sitting on the porch.
And get this: The son doesn’t need to be found guilty — and the house can be auctioned off before anyone can even step in court.
(I almost forgot to mention that the 71-year-old man has pancreatic cancer. An officer noticed his condition, and told them that they could stay in the house while the forfeiture proceedings went forward.)
Notice something particularly disturbing about those last two examples?
You don’t even need to be the person suspected of illicit activities to have your property taken from you.
“The child independence was then and there born… “
Ever since the terribly misguided 1984 crime bill resurrected civil forfeiture, the cash grab has been picking up steam.
At the national level, the U.S. Dept. of Justice revenue from civil forfeiture went from $27 million in 1985 to $565 million in 1993, and all the way up to $4.2 billion in 2012.
The tiny town of Tenaha, Texas, has a population of 1,170. It pulled in $1.3 million within the first six months of their program. The cop mentioned above has received $40,000 in bonuses from seized money.
In Hunt County, Texas, officers get personal bonuses of up to $2,600 per year from the forfeiture fund.
In Titus County, Texas, forfeiture funds directly pay the assistant district attorney’s salary.
About a hundred homes are seized and auctioned in Philadelphia each year, often for minor drug crimes committed by the homeowners’ kids or grandkids.
What do you think James Otis, Jr. would have to say today about the police showing up, searching a person or their property without a warrant, claiming something may be contraband, not having to justify it, and then using it as a bonus?
He’d probably recite an impassioned speech about the injustices of civil forfeiture that is virtually identical to the one about writs of acceptance that he gave in Boston over 250 years ago… the same one that inspired one of our nation’s Founding Fathers.
If only this country had a person like that today, a leader who could spark a resolve for revolution and independence from the repression of government officials that place themselves and their agents above the law and the inalienable rights to due process, life, liberty, and property.
We can only hope the right person for that job will read Sarah Stillman’s article and find a way to inspire a fragmented, powerless America that has been cowed into submission…
