HAIL, SEIZURE! GOVERNMENT LAUGHING ALL THE WAY TO THE BANK

In recent weeks, we've taken on the drug war for its failure to stop
the flow of drugs into this country or keep Americans from using
them. Readers have responded with comments ranging from complete
agreement to some telling us that drug prohibition is the law and we
should just "get over it." Such a range of comments and opinions is
great; Open, free-wheeling debate is what brings new ideas into the
public forum.

One result of the drug war we haven't touched on lately is its
corrosive effect on the security of private property guaranteed under
the Fifth Amendment.

The amendment reads, in part: "No person shall . . . be deprived of
life, liberty, or property, without due process of law." That seems
pretty simple.

In the United States, we don't execute accused murderers unless
they've been duly convicted (and rarely without years of appeals),
nor do we simply charge someone for robbing a bank and send them to
the penitentiary. The accused get their day in court.

Sadly, for the third portion of the constitutional guarantee -- that
folks won't be deprived of property without due process -- the burden
is often much easier for the government to meet.

Under federal law, assets suspected of being the result of criminal
activity can be seized by the government without the due process
required by the Constitution. In too many jurisdictions, the property
owner need not have been convicted, or even charged, with a crime.

Just the suspicion that the assets are connected to criminal activity
is enough to allow seizure.

These assets, except cash, are usually sold and the proceeds used to
finance government operations, often the very law-enforcement
agencies that seized them originally.

Under Colorado law, people must be convicted of a crime before the
state can keep assets, but in other states, such formalities are not
required, especially after the Eighth Circuit Court of Appeals ruled
in 2006 that no crime need have been committed for police to seize
large amounts of cash. In that case, Emiliano Gonzolez was pulled
over in a rental car in Nebraska for speeding.

The officer noticed the car had been rented by a third party, which
raised his suspicions. Upon searching the car, the officer found a
cooler containing $124,700 in cash. A drug-sniffing dog alerted on
the cooler, giving the state cause to seize the money as evidence of
a drug crime, even though there was no other evidence to support the claim.

A district court judge found no reason to allow the state to keep the
money and ordered it returned.

Unwilling to easily part with such a large sum of cash, the state
appealed to the Eighth Circuit Court. Gonzolez and his associates
said the money was their pooled life savings they intended to use to
start a produce business.

Gonzolez had flown to Chicago with the cash to buy a refrigerator
truck, but it had been sold already.

Stuck in a distant city without a credit card, he rented a car on a
borrowed credit card, thus his name was not on the rental agreement.

He put the money in the cooler so it wouldn't attract attention, and
headed home. That's when he was stopped.

The majority on the appeals court ruled that even though Gonzolez had
no criminal history and had not been charged with any crime, nor was
there any evidence that disputed his explanation, "Possession of a
large sum of cash is 'strong evidence' of a connection to drug
activity." Apparently that's the new definition of the "due process"
needed to take a person's property.

That standard basically says, "We think this property has something
to do with criminal activity, so we're going to take it so you don't
use it to get into trouble."

It's nice the government wants so badly to keep us out of trouble,
but that's not how things are supposed to work. In civil lawsuits
there must be a preponderance of evidence showing there has been some
damage or injury that requires compensation. In too many cases,
people like Gonzolez are finding no such requirement when governments
- -- that make and adjudicate the rules and stand to gain financially
- -- are the complaining party.

As Mel Brooks' King Louis XVI observed in "History of the World: Part
I," "It's good to be the king!" But government's imperious asset
seizures are no laughing matter.