Policing for profit: Challenging property seizures in court can be costly
PHOTO ILLUSTRATION BY KIP AOKI / KAOKI@STARADVERTISER.COM
CINDY ELLEN RUSSELL / APRIL 9
Bidders browsed forfeited jewelry at the Attorney General Auction held in the Pikake Room of the Neal Blaisdell Center in April. According to attorney general reports, law enforcement agencies brought in about $2.2 million in cash, cars, electronics and other property during the 2014 and 2015 fiscal years.
When an SUV was broken into at Makapuu Lighthouse, Darrell Teixeira had a rock solid alibi — he was in prison.
But that didn’t stop the police from coming to his house in Waimanalo on the day of the crime and seizing his 2000 Honda Accord, which the state later auctioned off to the highest bidder at the Neal S. Blaisdell Center.
The police suspected that an ex-boyfriend of Teixeira’s daughter may have taken the Honda to Makapuu and broken into the SUV, stealing a handbag, silver cross, swimming goggles and clothes, according to police records. Then he drove the Honda back to Waimanalo, police said.
It didn’t matter that neither Teixeira nor his daughter was implicated in the robbery. Nor did it matter that the police hadn’t charged the ex-boyfriend with the crime.
Under Hawaii’s civil asset forfeiture program, law enforcement agencies can seize property suspected of being connected with criminal activity, even if they don’t obtain a conviction or file a criminal charge.
Property owners have two options. Within 30 days of receiving a notice of forfeiture, they can file a petition with the attorney general’s office making their case for why they should get back their property. They aren’t allowed to actually challenge the legality of the seizure, however, and defense attorneys describe this option as essentially throwing oneself on the mercy of the attorney general.
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If this fails, owners can challenge the seizure in court.
But in Teixeira’s case, as well as the great majority of cases in which money and property are seized under Hawaii laws, the cost of challenging the seizure in court outweighs the value of what was confiscated, a Star-Advertiser review of hundreds of cases in recent years found.
Defense attorney Victor Bakke, who also used to work in the Honolulu prosecutor’s office, said that’s on purpose.
“What they do is they kind of have an amount that they figure out that most people won’t fight because it is not worth it. Would you spend $5,000 to get $3,000 back? Probably not. So it’s easy pickings for them,” he said.
The Honolulu Police Department and Honolulu Prosecutor Keith Kaneshiro declined comment or didn’t respond to interview requests for this story.
The ‘buy-in’ is high
To challenge a seizure in court, a property owner has to pay an upfront bond of $2,500 or 10 percent of the value of their property, whichever is greater. If they lose, they have to pay the state’s costs and expenses, including attorney’s fees, according to the attorney general’s office.
Since these are civil cases, claimants aren’t afforded a public defender if they don’t have money to hire an attorney. Bakke estimated that attorney’s fees in these cases could average $10,000.
During the 2014 and 2015 fiscal years, 80 percent of seizures involved money or property valued at $10,000 or less, according to data compiled by the Star-Advertiser based on documents provided by the attorney general’s office in response to a public records request.
Out of those 250 seizures, the average value was $2,648. The lowest amount seized was $91 in cash.
Half of all seizures during the 2014 and 2015 fiscal years involved cash or property valued at $2,500 or less.
Eapen Thampy, executive director for Americans for Forfeiture Reform, said that the data indicate that the police in most cases are going after relatively low-level offenders.
“It’s easiest and most profitable to target poor and minority populations,” he said.
But going after low-level drug offenders, or in the Teixeira case, someone who wasn’t even involved in the crime, flies in the face of the original purpose of civil asset forfeiture laws, said Thampy.
“These laws were sold as a way to get large drug organizations and drug kingpins,” he said, noting that most of the programs, like Hawaii’s, were implemented during the war on drugs in the 1980s. “But in reality, you see civil forfeiture used for really petty amounts — $2,000 or $3,000. People running around with that kind of money are not drug kingpins.”
The state has also used the program to go after alleged gambling operations.
Groups such as the American Civil Liberties Union and Institute for Justice, a libertarian law firm, have described civil asset forfeiture programs as the legalized theft of private property. Not only does it create ample opportunity for abuse, they say, but it violates a citizen’s right to due process.
Instead of innocent until proven guilty, people, or in these cases, their property, are guilty until proven innocent.
In successful administrative cases, the attorney general technically pardons the property.
The programs also come with what critics say is a perverse incentive: the attorney general’s office and law enforcement agencies, usually county police departments, get to keep the seized cash and proceeds from the property auctions. Sometimes they will keep vehicles for their departmental use.
“It just reeks of improprieties,” said Bakke.
During the 2014 and 2015 fiscal years, law enforcement agencies brought in about $2.2 million in cash, cars, electronics and other property, according to attorney general reports.
Josh Wisch, a spokesman for the attorney general’s office, said that his office wasn’t the right agency to comment on the program’s merits because it only administers the program.
But he said by email that Hawaii’s civil asset forfeiture program “is designed to ensure that due process is available to all those impacted by it.”
He noted that there are no costs involved in the administrative appeal. “The program is designed to allow anyone to file a claim or a petition for remission or mitigation to get any subject property back,” he said.
Mike Vincent, who oversees the asset forfeiture program for the attorney general’s office, said that his office tries to be very careful in reviewing cases. “If it looks even close that you are an innocent owner, we give it back,” he said.
Broad powers
All states have civil asset forfeiture programs, in addition to the federal government’s program, which splits revenues with states. Amid growing controversy over publicized abuses within the programs, some states have enacted reforms in recent years.
However, Hawaii’s program has remained one of the worst in the country, according to the Institute of Justice, which gave Hawaii a D-minus. The rating was based, in part, on the low standard of proof needed to seize property and the difficulty involved in retrieving the property if the owner is innocent.
Hawaii’s laws are also very broad. A review of several hundred cases in recent years indicates that most seizures are drug related. But not all.
For instance, in 2014 law enforcement seized the boat of a Molokai man who got in a fight with Oahu spear fishermen off Molokai.
Police also seized the Harley-Davidson motorcycle of Hawaii island resident Paul Gibson, who had gotten into a knife fight with another biker, then rode off.
“The police said he used it as a getaway vehicle,” said his attorney, Michael Zola.
Gibson missed the 30-day window to petition the attorney general to retrieve his bike. He assumed that the forfeiture notice had been sent to Zola, his attorney in the criminal case, but it hadn’t.
Zola said he asked the attorney general’s office for an extension, but that it was denied. And without an attorney general ruling, he couldn’t appeal the case to the court. Even if he had, he said it would have cost his client more than his $5,000 bike.
Defense attorneys say that a lot of the time the people are guilty of a crime. Gibson is currently serving a five-year sentence for stabbing the other biker.
But they question the propriety of confiscating property before there has ever been a conviction and say it just looks like people are being punished twice.
Furthermore, because the Hawaii laws are so broad, even if an owner did move forward with a court challenge, it can be difficult to win.
“It has to be clean,” said Bakke. “Most of this isn’t clean. … So the guy on the motorcycle — did he ride away on the motorcycle? Yes, he did.”
Laws ‘protect the community’
There have been recent attempts to reform Hawaii’s civil asset forfeiture program. For instance, lawmakers proposed a measure this past legislative session that would forbid property from being forfeited unless there is a conviction.
County police departments and prosecutor’s offices fought it, however, arguing that the civil asset forfeiture laws were instrumental in helping disrupt criminal activity by, in part, making crime unprofitable.
“Current forfeiture laws are used to immediately and effectively disrupt the infrastructure of criminal activity and protect the community,” wrote Kaneshiro in testimony opposing the measure. “In particular, the manufacturing, packaging, distribution and sale of illegal drugs can be immediately thwarted by seizing the materials, tools, equipment, cash, vehicles, etc., of these enterprises.”
He also said that Hawaii hadn’t suffered from the abuses reported in other states.
“Concerns about ‘innocent owners’ being deprived of their property or ‘policing for profit’ are unfounded,” Kaneshiro wrote. “Hawaii’s forfeiture laws provide more than adequate protection of property owner’s rights and numerous safeguards are already codified in the statute. We are confident that property is being seized and forfeited fairly and equitably and the abuse present in other jurisdictions does not exist here.”
The measure failed and lawmakers instead ordered the program to be audited.
The innocent owner defense
In Teixeira’s case, both he and his daughter petitioned the attorney general’s office to retrieve the Honda Accord.
While Teixeira said the car was his and he paid for it in full before he was incarcerated, the Honda was jointly registered under his name and his daughter’s. Under Hawaii law, a vehicle registered under two names is presumed to be jointly owned.
Teixeira, 53 at the time, told law enforcement that he had no knowledge of the crime and would need his car when he was released in a few weeks from Waiawa Correctional Facility, a low-security prison in central Oahu.
“I don’t have much and will appreciate having my car as I start off my new life,” he wrote in his petition to the attorney general’s office.
Teixeira’s daughter claimed no knowledge of the crime and said she hadn’t seen her ex-boyfriend in a week. She told the attorney general’s office that she had asked the ex-boyfriend numerous times if he committed the break-in and he said he didn’t.
“I believe him because on that day later I talked to his mother and he was at her house in Kahaluu at the time of the incident,” she wrote.
The Honolulu Police Department and Honolulu prosecutor’s office had reason to suspect that the Honda had been driven by a man seen breaking into the SUV. An eyewitness had recorded the license plate.
When they arrived at the Teixeira residence, police say that the engine was still hot and the tires warm.
The Honolulu prosecutor’s office argued that Darrell Texeira’s “innocent owner” defense must fail because he allowed others access to the car while incarcerated. As for his daughter, they say she permitted criminal conduct to occur through “willful neglect.”
In a compromise decision, the attorney general’s office auctioned off the Honda, but gave Teixeira half of the proceeds from the sale after deducting the costs of new keys, a replacement battery, towing expenses and notice and title fee changes.
The car was valued at $4,950. Teixeira received $1,620.46, according to the attorney general’s office.
Defense attorney William Harrison said that it looked like what the state did was illegal. Under Hawaii’s asset forfeiture program, owners are given an exemption if they have no knowledge of the crime, he said.
But he noted that court costs are high to challenge such cases.
“Really it is just like legalized theft, because they just get these things pretty easily from these folks that really don’t know what is going on,” said Harrison.
33 responses to “Policing for profit: Challenging property seizures in court can be costly”
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Mike Vincent, who oversees the asset forfeiture program for the attorney general’s office, said that his office tries to be very careful in reviewing cases. “If it looks even close that you are an innocent owner, we give it back.”
Yeah right: When an SUV was broken into at Makapuu Lighthouse, Darrell Teixeira had a rock solid alibi — he was in prison. The police suspected that an ex-boyfriend of Teixeira’s daughter may have taken the Honda to Makapuu and broken into the SUV, stealing a handbag, silver cross, swimming goggles and clothes, according to police records. Then he drove the Honda back to Waimanalo, police said.
It didn’t matter that neither Teixeira nor his daughter was implicated in the robbery. Nor did it matter that the police hadn’t charged the ex-boyfriend with the crime.
Yet his vehicle was seized and later auctioned off.
“If it looks even close that you are an innocent owner, we give it back.”
And there you have it.
The Honda was implicated in the SUV break-in crime, and then returned to the owners, so it was not stolen. Confiscation was justified. The Teixeiras should pursue the ex-boyfriend for any damages, including the loss of the vehicle.
That said, the asset forfeiture laws encourage abuse, and must be changed. The compensation to an owner whose property was inappropriately seized should be much higher the actual value of same.
Texeira should have spoke up earlier and turned in the ex boyfriend as soon as they got confronted by authorities. Probably they said “I dunno nothing.”
Sad to say, under Hawaii’s civil asset forfeiture program, law enforcement agencies are just as utterly corrupt and incompetent as they can be.
Policing for profit directly encouraged willful corruption at all levels of law enforcement and their supporting elected bureaucrats. They grow fat and lazy over all the money they rip off from innocent people, bend the law to suit their needs while they work hard to spin their utter incompetence. Swayed by undeserved bonus payment for the more they take, they turn a blind eye to the law.
We need to end this practice immediately and work to clean up the blatant corruption infecting our law enforcement and elected bureaucrats.
The car was still used, in the commission, of a crime. *** The invisible criminal, used the car, to commit the crime. *** Someone had the keys, to the car. *** The car was returned, to its original location. *** That location, was the residence, of the car’s joint owners. *** One was in prison and the other claims, no knowledge. *** The car, was the criminal accomplice. *** The car’s license plate, was recorded at the scene, of the crime. *** The car must pay for its criminal act. ***
Yes, and the ex-boyfriend, as the likely culprit, should be sued by the Teixeiras.
agreed
Lets look at it both ways. When a law enforcement officer is found guilty of an on duty crime, is their police vehicle impounded, sold, profits given to the victim. Irrelevant of it being a police vehicle, fair is fair.
In the same category as taking native Hawaiian land, n’est-ce pas?
Keep voting Democrat Hawaii. As the saying goes: “it sure beats working for a living, and when we run out of cash, we’ll just raise taxes, and take property.”
Sorry to say this isn’t a Dem problem exclusively.
It’s apolitical. It’s greedy “law enforcement” (I use the term loosely) agencies that get addicted to easy money through unconstitutional seizures to fund extravagant new expensive tastes.
TOTAL corruption.
Sometimes I do wish it were that easy to put the blame on whether it was Democrat or Republican. Forfeiture laws as we know know them is a little tricky. Check out the Wikipedia entry under Civil Forfeiture in the United States. Make sure to scroll down to the paragraph. Starting with “The politics of civil forfeiture are somewhat unusual.” spoiler alert…forfeiture laws as we know it were started by Republicans, supported by Democrats andtrying to be reformed by libertarians.
i remember watching a documentary on the forfeiture process years ago. it went from jurisdictions from the west coast and worked its way through the east coast telling the story of how departments were using forfeiture to cripple criminals and drug dealers. it was very upbeat and informative.
then, the documentary took a 180 back to the original department with an update on how the officers were corrupted with the power to seize property without justification, using only the thinnest of probable cause. the motivation: department and state attorney profits. what was disturbing was that nearly all of the departments’ forfeiture officers became addicted to drug money that was seized in such large quantities that counting and recording each $100 bill became so tedious and time consuming that hundreds of thousands of dollars were diverted into the officers’ vehicle trunks.
without proper oversight, the forfeiture process, intended to punish criminals, can corrupt departments and their officers once they start using the funds from forfeiture laws and realize that the money is a lucrative source of income.
Exactly. With this true statement, “Hawaii’s program has remained one of the worst in the country, according to the Institute of Justice, which gave Hawaii a D-minus. The rating was based, in part, on the low standard of proof needed to seize property and the difficulty involved in retrieving the property if the owner is innocent” it is easy to see why Hawaii rates as the most unintelligent state in the entire world. http://www.hawaiinewsnow.com/story/30553486/hawaii-called-least-intelligent-state-in-analysis
Clear to see why the state is billions of dollars in backlogged infrastructure work, growing pension money pit, education is in the gutter. With the city it is clear to see why rail is 300% over budget, years behind schedule with no end in sight.
Corruption and utter incompetency reigns at every level, with all areas of government and law enforcement.
Looks like I’ll have to upgrade my standard comment. Just another day in the little 10th world of Hawaii Nei.
Aren’t we all so lucky that this country is guided by the “rule of law”?
Sad to say those who make the laws and those who enforce law ensure it does not apply to them. Only apply to, in their own words, the “Steerage Class” losers who pay their salary, benefits, retirement. Total losers in government and law enforcement.
Give the funds to the schools for after school activities or other efforts that will help steer kids in the right direction. Don’t let law enforcement or AGs have any of it. That removes the incentive to “steal” more as they won’t be augmenting their own budgets. Otherwise, change the law already. No keep w/o a conviction.
Doesn’t work that way. For example, in California, the lottery was sold to taxpayers as extra income for schools and education. And for the first few years it was. Later the incompetent elected bureaucrats started reducing state funding, letting lottery money fill the gap. In no time all the extra money for education was gone. Previously allocated educational money went to bureaucrat’s pet projects. As in totally wasted.
It’s a shame the poor are the ones who get hurt the most. When they are down, well just keep them down, whether they are guilty or not.
The lesson I learned from reading this article is, “Don’t go to jail!”, otherwise your daughter’s ex-boyfriend, whom she hasn’t seen over a week and is claiming innocence, or someone you don’t know will have access to a jointly registered vehicle and use it criminally thus relying on the State imperfect seizure laws. One word, “bummer.”
The Aloha State. You gotta love it.
Just an empty word now
I remember when forfeiture came into being. At first glance it seemed to be a reasonable tool for law enforcement and it
came about to go after drug dealers and organized crime, illicit gambling operators and the like. Over time however it quickly morphed as a way for law enforcement to make money to fund themselves.
Kind of like small jurisdictions, setting up “speed traps” to get money from people driving thru these places. Legal but
very corrupt and a morally questionable practice.
It is high time that the laws were changed to reign in this very unfair extortion activity hiding behind the color of law which on the
surface appears legal but is not and deprives people their rights to their property. This corrupt practice is being conducted
nationwide and needs serious reform.
Agree. You touched on the problem with the modern day “speed trap” with the forfeiture laws now. Some municipalities have gone over the line to being corrupt and morally questionable, as you have said. There are some real horror stories out there where average law abiding citizens have become the victims and these forfeiture laws and ruined their lives.
*victims of these
Yup…you’re guilty until you can prove your innocence.
“Concerns about ‘innocent owners’ being deprived of their property or ‘policing for profit’ are unfounded,” Kaneshiro wrote. – So incompetent crusader Kaneshiro is using forfeiture laws in unintended ways, and against people it was not really meant to target.
Hmm … not surprised at all. Perhaps he’ll seize the massage tables next because they were likely used to commit a crime.
Keep voting (D) people, you’re getting exactly what you deserve.
Sad to say, Mike Vincent, who oversees the asset forfeiture program for the attorney general’s office, willfully failed to provide even one credible example to back up his utterly shibai claim of, “If it looks even close that you are an innocent owner, we give it back.”
What he was really saying is they do not have time to take people’s low priced, low quality items or money. They set standards for what they will take for maximum profit. Then at the end of the year, all these thieves review how much they stole from taxpayers, give themselves a massive bonus at taxpayer’s expense.
We need to end this corrupt program now.
How about forfeiting the real-estate that the crime was committed. Now that would be worth while to seize with cost of real-estate in Hawaii.
This program as is is ridiculously unfair and the law should be changed. If the police see something they want, they can just seize it.
Thank you Ms. Cocke for telling us about this practice. I had read about it on the mainland, but didn’t know it was widely used here in Hawaii.
Let me see if I have this correct: the government can take your property because they think it was used in a crime for which they won’t charge you or show you evidence, but when the government takes the property of homeless who by their actions ARE breaking the law, the government pays millions of dollars in a lawsuit. Yeah, that all makes sense.