Good morning Austin:
Watch this brief clip from a meeting President Trump had yesterday with officials of the National Sheriffs’ Association.
That’s Donald Trump, president of the United States, on the left, and Sheriff Harold Eavenson of Rockwall County, Texas, on the right.
Eavenson: There’s a state senator in Texas that was talking about introducing legislation to require conviction before we could receive that forfeiture money.
Trump: Can you believe that?
Eavenson: I told him that the cartel would build a monument to him in Mexico if he could get that legislation passed.
Trump: Who is the state senator? You wanna give me his name? We’ll destroy his career.
I’ve read and watched that exchange over and over and I still can’t get over it.
Just to be clear that you are not misunderstanding, that the sheriff is saying what you think he is saying, from Asher Price’s story in the Statesman:
During a roundtable discussion with Trump, Rockwall County Sheriff Harold Eavenson told Trump that a state senator, whom the sheriff declined to name, wanted to introduce legislation that would require law enforcement agencies to get a conviction before seizing a suspected offender’s assets.
In other words, the crime of this unnamed state senator for whom the president, on the basis of a handful of words, was, on his own initiative, prepared to serve as judge, jury and executioner, was writing legislation that would require that an accused person be convicted of crime before being punished. Next thing you know, we’ll have to start believing that people are innocent until proven guilty, or some such subversive nonsense.
In distilled essence, and in multiple ways, it was an expression of Trump’s authoritarian impulse and what America has the most to worry about in its new president.
My guess is that defenders of the president will pass it off as a meaningless laugh line by the Trump; that he really didn’t know what Eavenson was talking about.
But, if that’s the case, it suggests that Trump was all too ready to identify with the older white male in uniform, simply because he was the older white male in uniform, and, as first, natural impulse, offer to destroy the career of someone whose identity he did not know, but, it turns out, was in all probability, a Republican supporter who came to Washington to celebrate his inauguration.
Somehow, in an age of irony, we have found ourselves with a president destined to fulfill it without being able to savor it.
And, the worst part of it all was the general laughter that accompanied the president’s remark, which suggested flunkies flattering the alpha male in the room, or attempting to careful cordon off what he had said from serious consideration.
Alternatively, maybe Trump knows civil forfeiture in and out. After all, as a real estate developer he had an intimate, practiced knowledge of the uses of eminent domain, and civil forfeiture is kind of like one-way eminent domain – you get to seize someone else’s property, but, unlike with eminent domain, you don’t have to offer the person deprived of their property with anything in exchange.
And yet, it was peculiar because, reining in civil forfeiture is one of those issues where liberals and libertarian conservatives – where the ACLU and the tea party – agree on the need to limit state power in one of its most abusive forms.
One of the most compelling and horrifying stories I read in recent years was a New Yorker piece in August 2013 by Sarah Stillman entitled Taken: Under civil forfeiture, Americans who haven’t been charged with wrongdoing can be stripped of their cash, cars, and even homes.
The officers found the couple’s cash and a marbled-glass pipe that Boatright said was a gift for her sister-in-law, and escorted them across town to the police station. In a corner there, two tables were heaped with jewelry, DVD players, cell phones, and the like. According to the police report, Boatright and Henderson fit the profile of drug couriers: they were driving from Houston, “a known point for distribution of illegal narcotics,” to Linden, “a known place to receive illegal narcotics.” The report describes their children as possible decoys, meant to distract police as the couple breezed down the road, smoking marijuana. (None was found in the car, although Washington claimed to have smelled it.)
The county’s district attorney, a fifty-seven-year-old woman with feathered Charlie’s Angels hair named Lynda K. Russell, arrived an hour later. Russell, who moonlighted locally as a country singer, told Henderson and Boatright that they had two options. They could face felony charges for “money laundering” and “child endangerment,” in which case they would go to jail and their children would be handed over to foster care. Or they could sign over their cash to the city of Tenaha, and get back on the road. “No criminal charges shall be filed,” a waiver she drafted read, “and our children shall not be turned over to CPS,” or Child Protective Services.
“Where are we?” Boatright remembers thinking. “Is this some kind of foreign country, where they’re selling people’s kids off?” Holding her sixteen-month-old on her hip, she broke down in tears.
Later, she learned that cash-for-freedom deals had become a point of pride for Tenaha, and that versions of the tactic were used across the country. “Be safe and keep up the good work,” the city marshal wrote to Washington, following a raft of complaints from out-of-town drivers who claimed that they had been stopped in Tenaha and stripped of cash, valuables, and, in at least one case, an infant child, without clear evidence of contraband.
Outraged by their experience in Tenaha, Jennifer Boatright and Ron Henderson helped to launch a class-action lawsuit challenging the abuse of a legal doctrine known as civil-asset forfeiture. “Have you looked it up?” Boatright asked me when I met her this spring at Houston’s H&H Saloon, where she runs Steak Night every Monday. She was standing at a mattress-size grill outside. “It’ll blow your mind.
From the Institute for Justice.
Texas has some of the worst civil forfeiture laws in the nation, as demonstrated by an Institute for Justice report, Policing for Profit: The Abuse of Civil Asset Forfeiture. Texas law establishes a trifecta of circumstances that invite forfeiture abuse. First, Texas allows law enforcement agencies to police for profit—to seize and sell property then return the proceeds directly into their budgets giving them a financial incentive to abuse this power. Second, Texas uses a “preponderance of the evidence” standard for determining whether a particular seizure is valid, rather than the “beyond a reasonable doubt” standard for criminal defendants. Third, Texas places the burden on the innocent owner to prove his innocence.
I wrote about the Institute for Justice, which describes itself as, “the nation’s only libertarian, civil liberties, public interest law firm.” in a First Reading last week on their interest in paring back unnecessary licensing of occupations, a cause championed by state Sen. Don Huffines, who I ran into in Washington for Trump’s inauguration, and who may have views on civil forfeiture reform that might also merit his career being destroyed by Trump.
Just last week, Matt Powers of the Institute for Justice, was writing:
The Texas legislative session is off to the races with two reform bills set to strengthen property rights and expand school choice opportunities in the Lone Star state. The first bill, SB 380, would require a criminal conviction for property to be forfeited to law enforcement. The second, SB 3, would create a school choice program to give parents greater opportunities to choose what’s best for their children’s education.
Senate Bill 380 would secure greater property rights for Texans by requiring a criminal conviction to forfeit property. Currently, law enforcement agencies can seize property based on a mere preponderance of the evidence—the burden of proof required for property to be seized—and law enforcement agencies can keep up to 70 percent of forfeiture proceeds. In addition to requiring a criminal conviction, the bill would instead raise the burden of proof to clear and convincing evidence—a much higher standard, but still below the requirement for a criminal conviction—and require a property owner be convicted in order to have their property forfeited. According to IJ’s report, Policing for Profit, from 2000 to 2013, law enforcement agencies in Texas forfeited $540,689,972, or more than half a billion dollars.
This would seem to suggest that Trump ought to extend his vengeance to also destroy the careers of Konni Burton and Senfronia Thompson, though, it seems, they are not who the good sheriff of Rockwall had in mind.
Here is the statement yesterday from J. Justin Wilson of the Institute for Justice on the White House exchange.
Civil forfeiture creates a perverse incentive for police and prosecutors to go after money, not just crime. No one should lose his or her property without first being convicted of a crime.
Policymakers of every stripe agree that civil forfeiture is wrong. A recent poll found that 84 percent of Americans opposed the use of civil forfeiture. And both the Republican and Democratic party platforms called for civil forfeiture reform.
During the meeting, the Sheriff of Rockwell County, Texas grossly mischaracterized the nature of civil forfeiture reform. Reforming or eliminating civil forfeiture does nothing to limit law enforcement’s ability to catch and convict criminals. We hope that as the President becomes fully aware of the abuse intrinsic to civil forfeiture, he will see the need to limit forfeiture to criminal activity.
Across the country, legislators are working to stand up for Americans’ civil rights and limit or eliminate the abusive practice of civil forfeiture. State legislators have the responsibility to set the criminal code and its punishment. Legislators working to limit civil forfeiture should be applauded, not threatened or condemned.
David Guillory, the lawyer who took the case of the couple described in the opening of the New Yorker story, found other similarly outrageous cases in the same tiny community of 1,700.
Patterns began to emerge. Nearly all the targets had been pulled over for routine traffic stops. Many drove rental cars and came from out of state. None appeared to have been issued tickets. And the targets were disproportionately black or Latino.
Within a few weeks, the lawyers had received calls from other Tenaha forfeiture victims. In addition to Jennifer Boatright and Ron Henderson, the suit was joined by a handful of others—among them an African-American woman from Akron, Ohio, named Linda Dorman, who had forty-five hundred dollars taken from her and a passenger; and a young Mexican-American, Javier Flores, who turned over twenty-four hundred dollars. The suit accused the mayor of Tenaha and other town and Shelby County officials of operating “an illegal practice of stopping, detaining, searching, and often seizing property from citizens,” and doing so “not for any legitimate law enforcement purpose but to enrich their offices and perhaps themselves.” The practice was discriminatory, the suit alleged, and in violation of the Fourth and Fourteenth Amendments of the Constitution, “at least.”
The architect of the operation was the itty-bitty town’s deputy marshall, Barry Washington, a decorated former state trooper, who is black.
He explained his interdiction strategy, which relied on pulling over out-of-state cars for minor traffic violations, then looking for indicators of drug trafficking.
“And what are these indicators?” Garrigan asked.
“Well, there could be several things,” Washington explained. “The No. 1 thing is you may have two guys stopped, and these two guys are from New York. They’re two Puerto Ricans. They’re driving a car that has a Baptist Church symbol on the back, says ‘First Baptist Church of New York.’ They’re travelling during the week, when most people are working and children are in school. They’ve borrowed this car from their aunt, and their aunt is back in New York.” Profile factors like these, Washington explained, could help justify the conclusion that the two men’s money was likely tainted by crime. But also, he said, “we go on smells, odors, fresh paint.” In many cases, he said he smelled pot. In other cases, things smelled too fresh and clean, perhaps because of the suspicious deployment of air fresheners.
Later, the discussion turned to specific traffic stops. Garrigan asked about Dale Agostini, the Guyanese restaurateur who wanted to kiss his infant son goodbye before being taken to jail for money laundering. Why did Washington think he was entitled to seize the Agostini family’s cash?
“It’s no more theirs than a man on the moon,” Washington said. “It belongs to an organization of people that are narcotics traffickers.”
“Do you have any evidence, any rational basis to tell us that this money belonged to an organization of narcotics traffickers?” Garrigan asked. “Or is that more speculation?”
“I don’t have any evidence today,” Washington said.
And there it is. For Washington, it seemed, everyone he pulled over was assumed to be in league with the drug cartels, until proven otherwise, though they were never even given the opportunity to prove otherwise. They were simply stripped of their money and possessions – or else.
And likewise, as Sheriff Eavenson put it, the drug cartels would build a statue to this senator who would reform civil forfeiture rules, because, after all, the only people whose property they seized in Rockwall County were obviously working for the Mexican cartels, and the idea that there might be some innocent victims here whose rights were owed some respect was ridiculous.
And the president of the United States looked at the sheriff with his fine uniform and his mane of white hair and his official standing in this group of sheriffs and went ,sure, you’re right, and I’d be happy to destroy the career of whatever crackpot Texas politician is standing up for the Mexican cartels, even if it would turn out that the politician in question was most likely be someone he had shared a thumbs-up with him at the inauguration only last month.
From Price’s story:
State Sen. Bob Hall, R-Edgewood, who was elected in 2014 with the support of the tea party and represents Rockwall County, told constituents before the legislative session that he was considering filing a bill that would require that property cannot be forfeited without a criminal conviction.
Hall, who hasn’t yet filed an asset forfeiture bill this session, didn’t respond to requests for comment Tuesday afternoon.
He would make an unlikely target for Trump: Hall visited Washington for Trump’s inauguration and posted on his Facebook page, “We have a chance to move forward in unity to ‘Make America Great Again.’” The post also included a photo of him next to Trump, both giving a thumbs-up.
But this is Trumpian logic. Civil forfeiture is OK, because those you suspect are guilty are guilty.
His travel ban is correct because it will keep evil people out.
“It’s common sense,” he said. “You know, some things are law, and I’m all in favor of that, and some things are common sense. This is common sense.”
So, as long as this is not law but common sense, Trump called the judge who temporarily blocked his ban is a “so-called judge.”And, if there is a terrorist attack, blame him. Cue mob and rope.
The brief exchange between Trump and the Texas sheriff came on the same day that the Texas Senate gave initial approval to sanctuary cities legislation.
From Sean Collins Walsh’s story in the Statesman.
State Sen. José Menéndez, D-San Antonio, said the bill “will be read as the right to profile” by some officers. “To some degree, I think this bill will provide cover for those few bad actors,” he said.
Perry countered that the bill explicitly prohibits racial discrimination, as does current state and federal law. Those laws, however, haven’t prevented Texas officers from stopping and searching black and Latino motorists more frequently than Anglos, analyses of state data have shown.
Perry, in this case, is Sen. Charles Perry of Lubbock, the author of the bill to ban sanctuary cities.
I first met Perry in 2012, when I was still a reporter with the New Orleans Times Picayune and I came to Austin to do a story on what Louisiana could learn from Texas on criminal justice reform. Louisiana had the highest incarceration rate in the nation, in large part because sheriffs had an incentive to load up their parish jails, because they got paid by the state for every prisoner they housed – the more prisoners, the more cash.
Meanwhile, Texas was busy reducing its prison population.
I wrote at the time:
But Rep. Charles Perry, a tea-party-backed freshman from Lubbock who arrived in Austin as part of huge new Republican class with “lock ’em up” in his heart, was, on his appointment to the Corrections Committee, a quick convert to the new regime.
“We can all agree that we’d like to lock up every guy that doesn’t abide by our laws, but that’s not realistic. And I think that’s where Texas tried to strike a balance and been successful in finding a balance. We have interjected, if you will, common sense,” Perry said
I was impressed by Perry. He seemed like a humble and earnest man seeking to do what was right and guided by his faith.
But, as I watched a bit of the debate yesterday, it seemed that the critical divide was between Perry’s faith that there were very few “bad actors” in law enforcement who would misuse his legislation in punitive ways, that if you don’t break the law, you won’t get in trouble, and those who had no reason to have that kind of faith.
After all, Deputy Marshal Washington was a highly-decorated state trooper and African-American to boot, who thought he could literally sniff out criminals, and I suspect, if you are undocumented in Texas, you live in fear of police officers who think they know one when they see one and are not beyond taking advantage of your vulnerability.
During the debate, one senator, I think it was Sen. Royce West of Dallas, recalled the compelling speech that Rep. Ana Hernandez Luna, D-Houston, made in the House in 2011 – the last time sanctuary cities legislation was considered in the Texas Legislature. He recalled her recounting how her parents, who were undocumented, feared even going to the market for food because they could be picked up on some pretext, found out, and deported, their lives shattered.
I can’t imagine having to live like that, he said.
Here is what Hernandez Luna said back in 2011.
Mr. Speaker, members, thank you for allowing me this time to speak. I know that HB12 has already passed and in the long run, there was nothing that could be done about its passage. But what is important for me is to express my concerns and why this issue is so important to me. Immigration and all that it encompasses is very personal for me because I was an undocumented immigrant. You may prefer to use the word illegal alien, but I’m not an alien, I am not a problem that must be handled, I’m a human – a person standing before you now as a Representative for the Texas House.
I was born in Reynosa, Mexico and brought to the United States as an infant child with the hope of a life my parents never knew or could dream I might have. My parents along with my sister and I came on a visitor’s visa and overstayed our visas. We lived in undocumented status for 8 years until the Immigration Reform and Control Act of 1986 was passed under President Ronald Reagan, an icon which I must remind many of you that you state as being one of yours. Under this Act we were able to become Temporary Residents, then Legal Permanent Residents. At age 18, I went through the citizen naturalization process to become a United States citizen.
I still remember my interview with the immigration officer. I was 18 years old, had attended Texas public schools from kindergarten through high school, graduating when I was sixteen years old and was a sophomore in college, yet I was very nervous over the questions that would be asked during the citizen examination. I was so nervous that when asked to name the capital of the United States, I responded Austin, Texas. The officer re-asked his question … name the capital of the United States, and I then quickly responded Washington, DC.
During the time we lived in undocumented status, I remember the constant fear my family lived with each day. The fear my parents experienced each day as their two little girls went to school, not knowing if there would be an immigration raid that day, and they wouldn’t be able to pick up their daughters from school, and not knowing who would take care of them if they were deported.
My parents worked hard to provide a better life for my sister and I. My mother worked the day shift and my father worked the night shift to make sure one of them would always be there for us. The daily task of going to the grocery to buy the food needed to provide your family nourishment may seem like a simple task, but for my family, it was the food we went to buy that might be the death sentence to our family that came in the form of an immigration officer.
As an elementary school student, I remember being embarrassed and shy away whenever my classmates discussed where they were born. I knew I was not a US citizen and feared the reactions from my classmates if they knew I was not a citizen.
Some say that immigrant children are a drain on our public schools, but I don’t consider myself a drain. I graduated at age 16 with honors, earned by bachelors and law degree and was elected to the Texas House of Representatives at age 27. I know there are many other immigrants out there like me waiting to be given the opportunity that I was given and part of me believes that the hurt and turmoil I went through is justified in this fact.
My parents never asked for government assistance, they paid their taxes and instilled excellent family values in their two daughters.
I know firsthand the impact that HB12 will have on many families that are currently in the same legal status in which my family once was. I know how this bill will push immigrants into the shadows. Mothers that will be afraid to go to the store to buy groceries for the family, as my mother once was.
Because of my background and the many opportunities afforded to me, it is incumbent upon me to continue fighting to ensure that others can have the America Dream – and let them know that you can make it here if you try and work hard. Even if those elected to serve and protect you don’t believe it for you.