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Civil Forfeiture: Highway Robbery South Carolina Style

“South Carolina is the poster child for the injustice inherent in the for-profit civil forfeiture system.” 

Someone stops you on the highway and takes your money and possessions at gun point.  By definition that would be highway robbery.  If the highwaymen (another name for robbers) worked as a group it would constitute a criminal enterprise.  If the criminal enterprise targeted African Americans or African American communities, it would violate the Fourteenth Amendment. If your money was taken by such persons under these circumstances would it matter that the person who took your hard earned cash wore a badge?  Think about it.

A recent study by The Greenville News and Anderson Independent Mail (hereinafter “The Report”) has concluded after a two-year exhaustive study that in South Carolina:  

   “Police are systematically seizing cash and property — many times from people who aren’t guilty of a crime — netting millions of dollars each year . . . . Black men pay the price for this program. They represent 13 percent of the state’s population. Yet 65 percent of all citizens targeted for civil forfeiture in the state are black males.” (Emphasis added).

When we hear of these and other travesties of justice invariably our response is to lament the way we are treated in America and move on with our lives. As might be expected the problem never goes away and those who take advantage of us continue to do so with impunity. 

Is it racism or the law? 

We assume that all of this is the result of racism. We ask why this happens when we should ask how it happens.  Of course we can blame it on racism but that is not what makes it possible. In short, not even the most rabid racist could do this to us if the law did not make it possible. 

Over  17 Million Dollars Seized

So how is it possible for the police to seize all that money (more than $17 million in three years according to the report) and property?  It is known as forfeiture law and it was created to do exactly what it does. Take your money and property without due process of law.

Criminal / civil forfeiture

There are two types of forfeiture – criminal and civil. Criminal forfeiture happens when the state takes cash or property after someone is convicted of a crime.  Civil forfeiture is a legal fiction in the truest sense.  In the civil type of forfeiture the cash or property itself is guilty of a crime.  If drugs are found in the car the car is charged.  If cash is found even without drugs the cash is charged.  If you cannot satisfactorily explain where cash you are carrying came from it can be confiscated and charged.  No need for a messy, time consuming criminal proceeding  they just take the cash and you can try to get it back.  Curiously, in these cases the burden of proof is on the cash. That’s what I said.  The cash has to prove its innocence. Of course, the last time I checked both cash and property as non-human, inanimate objects are defenseless.

Must the law always be obeyed? 

So what is the point of all this?  It is time for us to stop allowing others to dictate how we view and respond to matters that affect our lives and fortunes.  One of the myths that we must abandon is that the law must be obeyed – hear me out – simply because it is the law.

It seems too obvious to mention that slavery, the Black Codes and segregation were the law.  If any of those laws were re-imposed today would you feel obligated to obey them simply because they would be the law?

My point is that until we recognize that in America the law has been and continues to be designed and utilized to deprive us of our fundamental rights we will continue to be abused by it. The worse thing we can do is be complicit in the denial of our rights by proclaiming that it is the law!  

The Original Question 

Now that you have had time to think about it lets revisit the question with which we began. If your money was taken by such persons under the circumstances outlined above would it matter that the person who took your hard earned cash wore a badge? The answer, of course, is hell no! That being said let’s take a closer look at the forfeiture laws and how they are used against African Americans in South Carolina specifically, why it is illegal and what can be done about it.

“A law that is fair on its face….” 

Let us begin this part of our analysis with a quote from the landmark United States Supreme Court decision in Yick Wo v. Hopkins:

“Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”

In other words if the intent of the law is not important if its use is discriminatory. 

“Having cash makes you vulnerable to an illicit

practice by a police organization.”

The Report calls the use of the forfeiture statute by police in South Carolina an illicit practice by a police organization.  Illicit means unlawful or criminal.  Organizations that engage in criminal activity are known as criminal enterprises.

RACKETEERING INFLUENCED AND CORRUPT ORGANIZATIONS ACT (RICO)

 The RICO statute provides in pertinent part: “It is unlawful for anyone employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.”

What is an enterprise?

 An “enterprise” is defined as including any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity. 18 U.S.C.A. § 1961(4).  

Clearly, police departments can violate RICO. Please note that the criminal acts necessary for a RICO violation include drug dealing, murder, robbery, obstruction of justice, obstruction of criminal investigations, obstruction of State or local law enforcement, tampering with a witness, victim, or an informant, retaliating against a witness, victim, or an informant.  Also note that at least one police department has been found to be a criminal enterprise under RICO. 

In South Carolina “A person who commits robbery while armed with a pistol … is guilty of a felony….”  SC Code of Laws Section 16-11-330 and the common law offense of robbery is also a felony. SC Code 16-11-325.

How the forfeiture statute is used 

Now lets look at how the law is used by some police departments in South Carolina to target African American males in what can only be described as a criminal enterprise and why such laws must be abolished -now.

“Having cash makes you vulnerable to an illicit [unlawful] practice by a police organization.”

From “The Report”:

“The deputy picked out his target among hundreds of cars that pass through the stretch of Interstate 85 near White Horse Road every hour. He said he pulled over the rented Chevrolet Malibu and its three black occupants for following too closely.”  (Italics mine).

South Carolina Code 56-5-1930. Following too closely

(A) The operator of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.”

The statute does not define reasonable or prudent.  In short, it allows any police officer who is so inclined to pull a vehicle over without fear of his actions being questioned because the statute does not define what it prohibits.

“The Report” says “the deputy picked out his target.” And who was the target? Three black males in a rented vehicle.  Can you say racial profiling?  According to the American Civil Liberties Union “Racial profiling is patently illegal, violating the U.S. Constitution’s core promises of equal protection under the law to all and freedom from unreasonable searches and seizures.”

Driving while black is not a crime nor is driving a rented vehicle. 

Aside from that racial profiling allows police officers to target citizens to be delayed, detained and interrogated for perfectly legal activity.  Driving while black is not a crime – nor is driving a rented vehicle.   In this case unless the vehile had been reported stolen there was no reason for the stop.  Oh that’s right, I forgot, the vehicle was following too closely.

The Report continues:

“He and other deputies soon asked the men to step out of the car, searched it and found 1.5 ounces of marijuana inside a jar in the videographer’s backpack.”

Believe it or not a police officer can make you get out of your car – period.  There are no rules that govern when a police officer can order you out of your vehicle. He only has to order you to do it.  In this case we are not told why these young men were asked to get out of the car.

More importantly, the officers then proceeded to search the vehicle. How did that happen? Did the driver give consent? We are not told.  In many of these cases the officer reports that he/she approached the stopped vehicle and smelled marijuana coming from it.  Bingo! justification for a search.  Problem is you can’t produce a smell in court to substantiate the search.

From the Report:

“When deputies opened Grant’s bag, they found $8,000 wrapped in rubber bands. All three were charged with marijuana possession, even though the videographer explained it was his personal stash. The deputies took Grant’s cash and told him it was drug money.” Just that simple. Just that quick. 

The Profit Incentive
The incentive for law enforcement to carry out these illicit seizures  is simple.  The cash or property seized goes to those who took it.  In other words the police departments that make the seizures get the money.  Actually, the split is 95% to law enforcement and 5% to the general fund.  These monies are then used by the departments to make more seizures. The really interesting thing is that these departments depend on these seizures as a sizable percentage of their operating budget.  The more they seize the more they are able to seize. 

What can be done?

Know your rights. You never have to consent to a search.

Finally, put collective pressure on your legislators to repeal the law that makes this form of highway robbery legal. 

Note that there have been several bills to reform the forfeiture law in South Carolina — none have been successful. 

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Johnnie Cordero

Johnnie Cordero is an African American thought leader who identifies as a Radical Centrist. He is the current Chairman of the Democratic Black Caucus of South Carolina. Cordero is the host of the “Radical Review” podcast and is a frequent political contributor and commentator for The MinorityEye. Cordero holds a Bachelor's degree in Political Science and a Doctorate in Jurisprudence. He is the author of ‘Total Black Empowerment: A Guide to Critical Thinking in the Age of Trump.’ His new book ‘Theodicy and The Power of the African Will’ is available on Amazon, Barnes & Noble and other online book sellers.

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