Pleading the Fourth: The Institute for Justice's Fight Against Policing-for-Profit
The FBI tried to use Civil Asset Forfeiture against hundreds of innocent citizens. Then the IJ stepped in.
First, just a reminder that the archives of the Bob Zadek Show podcast hold 15 years of discussion of major issues, including today’s topic of Civil Asset Forfeiture, which I first covered 10 years ago with Sarah Stillman (The Rise of Civil Forfeiture | The New Yorker), who had written a fascinating exposé for The New Yorker.
My archives contain in-depth discussion on social, political, and economic issues that really matter; always with the ideal guest – accessible and entertaining.
Our standard - ideas, not attitude.
Today's guest, Mike Greenberg, exceeds those standards. Mike is a litigation attorney with the Institute for Justice, handling cases, promoting personal property rights, economic liberty, and free speech. He has been particularly active in civil asset forfeiture abuse, a topic which we will explore in detail today.
IJ Uncovers Conspiracy by Federal Cops in California - Institute for Justice
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Bob Zadek: Mike, welcome to the show.
Mike Greenberg: Thanks for having me, Bob. I'm thrilled to be here.
Policing for Profit with Civil Asset Forfeiture
Bob Zadek: Needless to say, we would not have a country today had the constitution not been ratified by the states in 1788. We would not have had ratification without a promise by the ratification proponents to the ratifying states to immediately after ratification, amend the constitution to add a bill of rights. The Fourth Amendment contained in the Bill of Rights provides and I quote, "The right of the people to be secure against unreasonable searches and seizures shall not be violated." I'll repeat, "shall not be violated."
As you will learn today, this sacred right is routinely violated by government and for no other reason than to allow government to take and retain private property. The Institute for Justice issued a report that caught my attention when it was first issued about seven or eight years ago. The subject of that report was aptly entitled “policing for profit.”
Mike, before we get into the details of a case we're going to discuss, entitled US vaults, set the stage for us. What is the concept of civil asset forfeiture?
Mike Greenberg: So, civil forfeiture is a device that allows law enforcement to seize and permanently confiscate your things—your cash, cars, real property, jewelry, what have you—by arguing that it was merely involved in or the proceeds of criminal activity. Importantly, they don't actually have to prove that you committed a crime, or convict you of a crime beyond a reasonable doubt. It's a dangerous, major problem for property rights in this country.
Bob Zadek: Now, I'll just add a little supplement to make it a bit even more drastic. You said, “to seize property.” I want to correct the temporary sounding nature of that. It's not only seize. That might be interpreted as seize for the minute. Let me add, unless you think it's inappropriate, seize and retain your property. And the burden now falls upon you, you, the citizen whose property was seized to get it back.
If the audience says, "That sounds like guilty until proven innocent," with the jiggling of the burden, is it that bad, Mike?
Mike Greenberg: That's exactly right. There are many problems with civil forfeiture. And you're absolutely correct that “seize and permanently confiscate” is what civil forfeiture gets at. There are two chief buckets that the problems with civil forfeiture fall into: One is what I'll call the due process bucket. As you mentioned, the government doesn't actually need to convict you of a crime or convict anybody of a crime to permanently keep it with civil forfeiture. They don't have to prove anybody did anything wrong beyond a reasonable doubt as a criminal case typically requires. So, as you said, you're essentially forced to prove your own innocence or your property's own innocence, which frankly is nuts. This country ordinarily requires a presumption of innocence.
A couple of other due process related problems with civil forfeiture: It's a civil case. So, there's no right to a lawyer. Often, there's no right to a jury. Often, there are Kafka-esque procedures that you need to figure out in order to contest the forfeiture. Related to that, often, the value of the property that is seized, while substantial, is not high enough to justify the expense of hiring a lawyer and taking the large amount of time that you need to invest in defending yourself. So, people often rationally just walk away rather than actually going through the process of proving their own innocence.
The second big problem is what you mentioned—the report that our organization put out several years ago, Policing for Profit. In most places where civil forfeiture exists, the very agencies that are deciding whether to seize and then move forfeiture permanently confiscate a piece of property are the agencies that then receive the proceeds of that property back into their budgets. That gives them seriously perverse incentives. The more that they seize and forfeit, the more money that they then have for their own salaries, for bonuses, for new equipment, and so on. It encourages them to focus more on this type of activity, seizing cash, cars, things like that, rather than on things that might more directly threaten public health and safety in their policing activities.
Bob Zadek: What you just said, that's so important, Mike. We have police departments who are hired and paid. These are local police departments, cities, counties, et cetera, state police. They are hired to protect the customers—the citizens—from bad acts. That's their job and that's why they are paid. If they don't do that, they're not doing the very purpose they are hired.
Policing for profit, on the other hand, encourages police departments, and state police, and the like to spend their time looking for activities where they seize property, traffic stops, broken headlights and taillights. Classic example: A minority citizen driving a fancy car, they will say, "It made me suspicious. This person didn't look like they could afford that car, let's stop them."
They have their tools like police dogs, notoriously inaccurate, who will alert for drugs. So, they get a treat and the police dog alerted that now there's reasonable cause to search the entire car, and lo and behold, they find a joint and they also find $1,000. $1,000 is seized. The individual driving the car has just paid $1,000 out of his pocket and that individual has to go to court to get it back. Sometimes, that individual is just driving through town, and doesn't even live there. Who's going to come back to get $1,000? You just end up saying, "Okay, keep $1,000 and I hate police." That's the transaction. So, that's civil asset forfeiture as a concept.
Equitable Sharing (i.e., Federal Collusion with Local Police)
Bob Zadek: Now, there's one other concept which I can't help but ask you to explain. We're going to talk, Mike, about a concept called “equitable sharing.”
Explain how the federal government, which doesn't have the manpower to enforce federal drug laws, for example, gets involved. There's no federal police force. Well, there is, but they don't call themselves that. There are lots of federal police forces. They may work for EPA, they may work for everybody else, but they have the power and the equipment of a federal police force. So, they can't enforce federal drug laws.
Also, if you live in a small town or county, you may not care that much about drug laws. You want your cops to making sure nobody breaks into your house or harms your family. That's why you really want police and that's the mission, as I said. Tell us how equitable sharing, taking advantage of the power of civil asset forfeiture, in effect diverts local police from their core mission of protecting you and I, Mike, to carrying out the dirty work of the feds?
Mike Greenberg: Equitable sharing is a system that allows the proceeds from forfeited cash, cars, what have you, to be split among state and federal law enforcement agencies. The way that this happens is that the federal government, as you mentioned, wants certain drug laws enforced or wants certain priorities enforced. So, what happens is, when state and local officials will engage in exactly the kind of roadside stop that you identified earlier and essentially take $1,000 for civil forfeiture or take that person's car for civil forfeiture, because they think maybe it was connected to some kind of drug crime or something like that. Then they pass the asset over to the federal government to actually prosecute the forfeiture case.
What happens is, the federal government handles all the paperwork, all the judicial proceedings for the prosecution of that case, and then remits a fair share or "fair share of the proceeds" that it generates back to the local law enforcement agency, gives them a little pat on the head and says, "Good job for doing what we want you to do." It doubles down on the perverse financial incentives and it's a thing that is at play in the US Private Vaults case that we're going to discuss today. State and federal law enforcement working together because one or the other didn't quite have the resources that the other needed. But together they each get to forfeit property and they're each going to get a cut of property that's forfeited.
Bob Zadek: By dint of equitable sharing, which is in effect, the federal government paying a commission to local government to doing all the work at the street level and it says, "Here's your cut." So, a local police force, which has to allocate resources, it'll never have enough, between protecting your house from a break-in for which they get no money from the federal government, or a traffic stop on the interstate for which they're going to make a bucket of money from the feds they in effect, which, by the way, citizens don't care about. So, the local police force is now bribed, if you will, to divert resources from the core mission of protecting my house from being broken into or my family from being harmed, or shoplifting, divert resources to activities that the community doesn't care about, at least, not as much, but the police make more money. Okay.
Mike Greenberg: Can I just jump in and add one thing on that, Bob? There's one other problem with equitable sharing along those lines, and it's that many state legislatures have ended that causal connection between a traffic stop and the money going directly to the law enforcement agency that is seizing and forfeiting property. They instead require the proceeds of forfeited property to go into some kind of general fund rather than directly to the law enforcement agency or directly back to the prosecutor's office. And that's a great thing.
What the equitable sharing loophole program allows those agencies to do, it still lets them get-- When they pass seized and forfeited property off to the federal government, they still get that cut back from the federal government directly rather than it going to the general state fund, the way that the legislature intended.
The Fourth Amendment in Context
Bob Zadek: Okay. So, now, we've set up civil asset forfeiture. I want one more set up and that's-- We'll start with the Fourth Amendment. Tell us, Mike, the theory of the process set up by the founders in the Fourth Amendment to the Constitution enacted in 1791. What the founders did to make sure that We citizens are protected against that kind of activity? Just give us the bullet points of how the process works before there is an invasion of one's privacy protected by the Fourth Amendment. What's the process in theory and then we'll get down to the ugly facts of US vaults?
Mike Greenberg: In theory, your property is your castle. The government cannot search or invade your property or your privacy without a judicially authorized warrant and that warrant must be supported by individualized probable cause that you have done something wrong or there's evidence of something wrong on your property. It's that simple.
Bob Zadek: Now, who issues the warrant?
Mike Greenberg: A judicial officer.
Bob Zadek: Michael, our audience will recognize, this is the system of checks and balances in process. The judiciary gets between the cops and kicking down your front door. We're talking about theory. I will mind the audience. You are not hearing Bob and Mike being naive. We are talking about theory. The theory is that a judge sworn to enforce and defend the constitution.
That judge says, "Before I give you permission to kick down the door and to seize property, convince me you have reason to sing aloud Bob or Mike." That's what the probable cause is. All of that is theory.
So, in theory, it ought to work. The police can't just not like you, they have to persuade an independent official, a judge, that there's a reason to single out Mike's house, and property, and castle for attacked by the police. So, that's the system and that's the system in fact. Now, we'll see the breakdowns in a moment. So, we start with as we look at the system on paper, we say, "Yeah, that ought to work."
The Private Vaults Case: Innovative Ways of Violating Your Rights
Bob Zadek: Now, tell us. We're now going to spend the rest of the show learning about what happens in practice. It all sounds pretty protective of our rights. What I say, we're going to do a little parlor game, Mike. I'm going to say, US vaults and you're going to tell me the first thing that comes to mind.
Mike Greenberg: Innovative ways of violating your rights.
Bob Zadek: Okay. So, tell us what US vault case is all about. Set the stage for us and then tell us-- We'll learn for the rest of the hour what IJ's involvement was, and what you have done, and why, and what you hope to accomplish. But first, US vaults. Set us up as to what happened.
Mike Greenberg: Sure. I'll give a little background on-- because it's a bit of a lengthy factual background here to get listeners up to speed. So, we represent several clients who live in the Los Angeles area and surely countless other Americans. They needed a safe place to store their valuables. Two of our clients, for example, were Paul and Jennifer Snitko. They live in a fairly wildfire prone area and they wanted a safe place to store family heirlooms that wouldn't be damaging, if God forbid a fire came by their house. We represent a few other people, Jenny Pearsons and her husband, for example, who had about $20,000 in precious metals as a retirement nest egg and they wanted a safe place to store that. A totally reasonable thing.
In older days, people would go to a bank, and they'd rent a safe deposit box for that. That's still theoretically possible, but a lot of banks are full. They don't have any available safe deposit boxes. And so, this company, U.S. Private Vaults opened up in Beverly Hills a few years ago, and all they do is safe deposit boxes. They had a convenient location, they had good hours, their prices were good for renting the box, and they were even a member of the Beverly Hills Chamber of Commerce. We represent seven clients who were clients of U.S. Private Vaults and rented boxes there.
Unbeknownst to our clients and to the overwhelming majority of the 700 plus people who rented boxes at U.S. Private Vaults, law enforcement was investigating the business itself and owners of the business. Apparently, they had some evidence that managers of the business were engaged in some wrongdoing from the business, whether that was financial malfeasance or some kind of drug related crime out of the business. But the evidence from that law enforcement investigation was limited to just that, the business and its owners and its managers. They had no evidence against any individual box holder. In fact, they didn't even know who most of the box holders were. They had no way of knowing.
Fast forward to early 2021. The government secures a criminal indictment against the business, U.S. Private Vaults. Along with that, it applied to a judicial officer for a warrant to search and seize U.S. Private Vaults, the business and to seize its business equipment. The criminal allegation was that the business itself was engaged in wrongdoing or the managers were engaged in wrongdoing. And so, it seized the businesses, equipment—computers, things like that as evidence and proceeds of wrongdoing or it sought to do that with the warrant at least.
Here's where things go off the rails for our totally innocent clients. The government's warrant application also sought to seize the nest of the vault—the relatively worthless metal superstructure and the actual boxes that contained all of our box renters' valuables. Technically, that was the business's property as well and the government wanted to seize it as the business's proceeds of its malfeasance. The problem with that is that by seizing the metal boxes that contain all of the valuables, the government is necessarily going to come into contact with the boxholder stuff.
What the government tells the magistrate in its warrant application is, "Look, we're planning to seize the boxes themselves. But we're only going to look inside the boxes for two purposes: To identify who the owner is and to help facilitate them reuniting them with their stuff and to make an inventory of the contents of the boxes solely for the purpose of protecting our agents against claims of theft or loss during this seizure process." It specifically said in its application, the warrant would not authorize a criminal search of any box. The magistrate signs off on that and the warrant issues on that understanding.
That takes us to the lawsuit itself or the day of the raid. Our lawsuit, which comes later, uncovered that the government deliberately misled the magistrate. Months earlier, high level agents in the FBI's Los Angeles field office had made the determination that when they eventually took down U.S. Private Vaults, they were going to seize, keep, and permanently confiscate or permanently move for civil forfeiture on everything they found in those boxes that is worth more than $5,000. Why $5,000? As a matter of FBI policy, that's the minimum amount that they move forfeiture on, because that's their breakeven point after accounting for the labor hours and the paperwork and so on, it requires to successfully move forfeiture.
So, in other words, if they stood to make a profit by seizing the stuff in someone's boxes, they were going to do so. If they stood to not make a profit, they weren't interested. They told the magistrate, none of this.
Bob Zadek: This sounds like a criminal enterprise. I'm all saying to myself, "Okay, Mike, what are you not telling us?" It sounds like you're either writing a novel or trying to plead the case that these FBI agents should go to prison. If we stop here in the story, we have FBI agents who were in it just for the money. Can you put any kind of a gloss on this behavior so far, because then we'll get into the case itself? If there was an FBI agent or somebody from the DOJ on this show, what would that individual say?
"Hold it, Mike. You're not telling the audience the following." Is there any gloss that when you're cooking the books and trying to mislead my audience?
Mike Greenberg: I have nothing, Bob. The government in this case conceded that it misled the magistrate. It didn't share this plan with the magistrate. What they would say is, "Look, we have the ability, knowing that we were going to come into contact and inventory these items. It just so happens that we ran into a bunch of criminal things that we think are criminal proceeds." There's no defending that they had this plan all along that they were going to assume that any amount of cash or any valuables worth more than $5,000 that they encountered were, per se, evidence of criminality. There's no defending it.
The FBI Doubles Down
Bob Zadek: Now, one would then say, "Okay, we have a bunch of irresponsible or worse, rogue FBI agents, a field office out of control." And as soon as the higher ups learn what their workers, FBI agents are doing, they'll say, “Profound apologies, we fire them, they're not getting their pension, taken away, their badge, and the entire government apologizes to you, innocent citizens.”
If that happened, you wouldn't be on the show. You would be a no name lawyer laboring in a windowless office for IJ and you wouldn't be the immediate darling, which you are now because you're on my show. But you are an immediate darling, you are on my show, and it didn't just stop that as soon as somebody above the agents discovered it, they apologized and returned the property. So, what happened?
Why didn't your clients get their property back right away? What was the claim and what happened in the litigation? Why wasn't there just, "Here's your property back. You did nothing wrong. We apologize"?
Mike Greenberg: As I mentioned earlier, this came out during the litigation. At the time of the raid, this was an entirely secret thing that nobody knew about. But behind the scenes, as they're getting ready to execute the raid, they're taking steps that will help them move forfeiture on every piece of property that's valuable that they encounter. While they're representing to the magistrate on one hand that they're only going to inventory the boxes and not conduct a criminal search, they are putting a plan in place that would allow them to do just that.
Fast forward now to the day of the raid, the most glaring example of them explicitly moving on this plan to conduct criminal search rather than an inventory search is that they worked with local police departments to ensure that canine units, drug sniffing dogs would be on site. This is exactly the thing that we talked about earlier. True to their plan, for every box that they opened in which they estimated that there would be $5,000 or something worth $5,000 or more, they ran it past a drug sniffing dog.
Now, astute listeners might be thinking to themselves, "What purpose does a drug sniffing dog serve inventorying cash that you find or documenting that it was in the box?" The answer is that it serves no such purpose, as agents eventually admitted, but it can be useful as potential evidence in a subsequent forfeiture case. Another example is the inventory form that agents were tasked with filling out as they processed the boxes. It instructed agents to note that if they found cash to note things like how it was bundled, if it had any particular odor or if there appeared to be any drug residue on it. Again, that doesn't really help you forestall claims of theft or loss, which are the reasons for doing an inventory search. But the details of those sorts of things would be very helpful in determining whether the cash is potentially related to a crime.
On the flip side, when it came to, actually, documenting what was in the box, we would regularly see entries like miscellaneous coins, or assorted jewelry, or miscellaneous items even. You'd think any halfway decent inventory, things like the quantity, or the color of the items, or in the case of miscellaneous items, even identify what kind of item we're talking about here. But often that it wasn't the case. Even with cash, the entries would just say uncounted currency. It was clear from the beginning. The government was far more concerned with potential criminal evidence than an actual inventory. [crosstalk]
Bob Zadek: Now, give us a sense, the magnitude of this is staggering. Even though, the audience is desensitized on quantity having heard over and over again in the news, well, a trillion, six, a trillion, seven. So, one gets desensitized-- When you talk in terms of trillions on the evening news, $100 sounds like Weimar Germany or something when you have a Deutsche mark for ten gazillion dollars. So, give us a sense of the magnitude of how many innocent citizens woke up one morning and they no longer had access to their own property, even though they did nothing wrong.
Mike Greenberg: Sure. There were more than 700 people who were customers of U.S. Private Vaults who woke up one morning to a story on the morning news, or in the LA Times, or what have you, saying, "Oh, my gosh, all my valuables are gone." The aggregate number of valuables that the FBI eventually moved forfeiture on, and they did this in one swoop. One document lists every single thing that they move forfeiture on all at once. It was more than $80 million in cash and millions more in precious metals and jewelry, and other valuables. So, it easily approaches $100 million if not exceeds it all in one swoop, just in a couple of days work and in one document that they filed for forfeiture.
Bob Zadek: Now, to give the human perspective, so put us in the lives in the minds of one or hypothetical client of IJ, who was a customer of U.S. Private Vaults. They wake up in the morning and they discover one way or another-- They discover a raid, they probably saw that on the local news, and then they realized it was arraigned on a company where they had their valuables.
Did they try to get their property back? What did they experience before they found their way to you as they did nothing wrong, they were simply citizens of Southern California going about their lives and now, denied their valuables, their children's letters, whatever was in the vault, they don't have access to it? Tell us what they experienced before they found their way to competent counsel the Institute for Justice.
Mike Greenberg: Yeah, all of our clients were dumbfounded. They're perfectly innocent people who just about all of them, their experience with law enforcement was, "Well, I'm a law-abiding citizen. What could possibly ever go wrong in my life, essentially?"
And then, they see the story on the news and they bolt over. I can recall our clients, Paul and Jennifer Snitko bolting over to the U.S. Private Vaults location and there's nothing for them to do. There's a sign on the door that says, "Oh, if you're a box holder, go online, fill out this form identifying who you are, and the FBI will be in touch with you soon." And hundreds of people did exactly that. They had no idea what had happened, or why their property was seized, or what the government wanted with it, or what even U.S. Private Vaults company had done wrong.
They had done nothing wrong, but they had to go through this process of identifying themselves to the FBI and then wait. They heard nothing but silence for weeks and weeks on end, because the FBI had no real process for returning people's things-- Unbeknownst to our clients, the ones who had valuables more than $5,000, the FBI wasn't planning to return it at the end of those few weeks. It was planning to move forfeiture on it. And so, that is how our clients found us is, “We're getting dead silence from the FBI. We didn't do anything wrong, and we want some answers on what happened to our stuff.”
That's when we got involved and filed a lawsuit on behalf of seven people. The FBI had seized their property, and wasn't returning it, and there was no reason that anyone could think of why the FBI would have it.
Bob Zadek: Now, I will shamelessly promote IJ. Michael did not put me up to this. IJ is a public interest law firm which does not charge fees to its clients. It does so, because it wants to right the wrongs committed by government who abuse citizens and the citizens need help, because government is bigger, and IJ levels the playing field. So, just curious, Mike, not an important issue in our discussion, but did one of these box holders find you and told their friends, "I found IJ,” Just mechanically, how did they find you and how did you manage to get seven clients?
Now, I will quickly say to my audience, it's not as if you're ambulance chasers, why would you chase ambulance if you're doing your work for free? So, if you're in the audience, do not think IJ collected the way when there's been an airline crash and these tort lawyers go out to the scene and hand out business cards and this is what happens in the movies. This is the opposite. So, just tell us of the human interest part of it, how these individuals found their way to you, either individually or collectively, just in a few words.
Mike Greenberg: Well, that's very kind of you, Bob. Yeah, we chased principles not to line our pockets. So, we saw the story that the FBI had conducted this raid and it seemed just immediately to us to violate the Fourth Amendment to go after people's things without any individualized probable cause as to those people. So, what we did to identify, because we had no way of identifying who the box holders were ourselves. We just, on the Internet, put out a little form with a couple of promoted ads trying. Hopefully, people would google U.S. Private Vaults raid lawyer or something along those lines, and so that our website would come up and they could say, "This is someone that can specifically help me, someone that's specifically looking out for this issue, who is not in it to make a buck, but is in it to establish a precedent that this can't happen to other people in the future."
Bob Zadek: You were marketing trying to figure out some way to find people to accept your services for free. That's what you were doing. Please let us help you at no cost to you or we are just in it for the principal. So, you found these clients, and one would think-- As my audience knows, I'm a lawyer, although I'm not a litigator. Often to me, litigation is a tool. I will often tell my clients, "Okay, the other side is being a jerk. The second they read your complaint. They'll understand they have no case,” that's the hope of a lawyer making a claim. And we'll serve the complaint, we'll get a phone call, and we'll start to talk about settlement, because who would want to fight this absurd case when the other side has to lose?
So, I would have imagined your story would be, “Let's serve up a complaint. They'll see IJ as a plaintiff or as plaintiff's counsel, and they will beg you, "Let's settle and keep this out of the news because we're embarrassed." Is that what happened? I know the answer but go ahead.
Mike Greenberg: Not quite. Sometimes, in our cases, that does, in fact, happen where the government puts on what some people at IJ call it, "Oh, you have a lawyer voice."
Bob Zadek: [laughs]
Mike Greenberg: That didn't quite happen here. We got involved just after the government moved for this mass forfeiture action against, as I mentioned, $80 million in cash and on behalf of some of our clients who were included in that mass forfeiture, the ones who had valuable property. We were pretty successful early on in getting the government to back down on forfeiting their stuff. But it wasn't easy. They didn't just immediately return it. What instead, we had to do, was file a request with the court that the government be more specific in why it was trying to forfeit our clients' things. Civil forfeiture is not quite a hallmark of due process, as we talked about earlier.
One of the things that it does require is that you give some kind of notice to the property owner explaining what you're alleging they did wrong that justifies the forfeiture of their stuff. The government didn't do that here, because it did it all in one giant swoop. Because it really didn't have any reason to think that any individual of our clients, at least, had done anything wrong. They didn't identify any particular crime in their notice to our clients that they thought our clients had committed. And so, we filed a request with the court saying, "Essentially, government needs to put up or shut up. And if it's not going to get more specific in alleging what it thinks our clients did wrong, it needs to return their stuff."
The government couldn't get more specific, because our clients hadn't done anything wrong. And so, eventually, the court said, "Yes, they need to put up or shut up," and the government returned our clients property. But that wasn't the end of the case, because like I said, we're in this for principles, not just for any other reason. There's a really important principle at stake here that the government shouldn't just get to rifle through people's things without any individualized probable cause, which is what happened here. And so, we were continuing to press on with the case to get the court to declare once and for all. What the government did here, conducting a criminal search when the warrant specifically said, they can't do that, and misleading a magistrate violates the Fourth Amendment.
“There's a really important principle at stake here that the government shouldn't just get to rifle through people's things without any individualized probable cause.”
This case essentially stands for the principle that, just because the government has reason to think that someone who, let's say, owns an apartment building is conducting a drug sale out of the main office of that building, that doesn't give the government license to search and seize the contents of every apartment in that building, despite not thinking that anybody in any particular apartment did anything wrong when it first walks in. That's a really important Fourth Amendment principle that we're trying to vindicate with this case. And so, that's why we pressed on.
Bob Zadek: When you say you pressed on, what now is the fight about? Right now, there are issues that have been resolved, your clients have gotten back their money. And by the way, before I ask you my question about principle, how long did it take from the first day after the raid when your clients were denied access to their property until they got all their property back with, I presume, a long hand note from Merrick Garland apologizing? How long did it take?
Mike Greenberg: So, they didn't all get their things back on the same day. It was a gradual process. The raid was in March 2021, and it was not for months and months later. I believe October is when the last of our clients got their things back. There are still people who we don't represent who are still trying to get their stuff back from the government, if I can share one quick anecdote that I think encapsulates civil forfeiture very quickly. When the last of our clients was given their things back, it wasn't just like the government put it in a UPS box back to their address. Our clients had to come to the FBI office in Los Angeles to come and have their things handed off them, essentially. I was lucky enough to go and accompany two of our clients to go and do that.
We're there in this conference room and the government is signing some paperwork saying, “yes, we're giving these things back and our clients have these grocery bags filled with precious metals that was stolen from them in this raid.” The two agents who are facilitating the return, as we're getting ready to walk out of the room, say, "Would you like us to accompany you out to the car? There are some homeless in the area. We wouldn't want you to get robbed."
Bob Zadek: [laughs]
Mike Greenberg: Completely oblivious to the fact that the people who had just robbed our clients of their very valuable property for months were now offering to protect them from people that they were saying were robbers. Civil forfeiture turns the police into robbers, and I think that story encapsulates it now.
Bob Zadek: So, the case goes on. You were suing, initially, it was a property case. It sounds like you wanted the property. You weren't asking for declaratory relief, your clients were good citizens, you weren't asking for an apology, I don't think you were asking for damages you'd be entitled to it, obviously not. So, the case is done, your clients get their property back, but yet you're still litigating.
Mike Greenberg: We're still litigating, because in the process of the raid, the government didn't just take all of our clients' things. Our clients have all of their things back. But what it did was take details, take notes of the precious documents, and heirlooms, and it held debit and credit cards are found in these boxes up to the camera. The government's going to keep a record of that forever. We want the government or the courts to declare one that what the government did here, going into the boxes at all and lying to the magistrate violates the Fourth Amendment. That because what the government did violated the Fourth Amendment, it needs to destroy all of the records it created wrongfully of our clients' boxes and of everyone that we represents boxes. So, the case pressed on and unfortunately, we have an initial decision from the court.
A couple of months ago, the court issued its ruling on that Fourth Amendment question. The court said that, "Well, sure, you may have all of this evidence that the government was actually trying to conduct a criminal search that the warrant prohibited—the drug-sniffing dogs, the form that is totally unconcerned with inventorying the actual stuff in the boxes. You may have all that evidence, but I think what the government did was close enough to an inventory search. So, no Fourth Amendment violation. Sorry.”
It's a confounding ruling to us and we're in the process of appealing it and the 9th Circuit is going to hear the case soon. Our opening brief is due next month and we're still fighting to get a court to declare that the government's dragnet search of people's property when they had no individualized probable cause to think any of the people had done anything wrong violates the Fourth Amendment. And that the government can't lie to a magistrate judge in obtaining a warrant, because that violates the Fourth Amendment as well.
Bob Zadek: So, you are trying to build, create, undo, use whatever verb one wants, or some really bad federal procedures and case law, perhaps, and you are taking advantage of this.
Lawyers often say, "Bad facts make bad law," a common phrase lawyers will utter and you are trying to take advantage of some really atrocious facts, and run with it, and use that as your ticket to ride, and see if you could use that good fortune of your client's bad fortune, and convert these bad facts into, perhaps, a useful, at least at the federal circuit court level, still it'll be 9th Circuit law, a useful precedent to rein in this, at least, a small part of policing for profit. Is that a fair summary?
Mike Greenberg: Absolutely, yeah. Every American's constitutional rights are at stake. When the government can say that it's going to search one particular place that it has probable cause and use it as a pretext to search plenty of other places that it doesn't have probable cause for and get away with it, that opens the door to all kinds of law enforcement malfeasance that to quote the Fourth Amendment would make everybody less secure in their property.
The Case for Abolishing Qualified Immunity
Bob Zadek: Now, I guess, some of our listeners to this podcast might say the real villain perhaps was not government writ lodge, but a bunch of rogue FBI agents and maybe those to whom they report don't know enough about the facts. But the audience may say, "Hey, Mike, why not go after--?” By the way, I'm setting you up. You'll know more really what I'm setting you up for. But Mike, "Why not go after the FBI agents individually? Why not just go after the FBI agents and get rid of the bad guys?"
Mike Greenberg: You're setting me up for a discussion of the immunity doctrines that protect federal and state agents from all kinds of rights violations, and they are egregious. So, two problems with that in trying to sue for money, essentially the federal agents that were involved with this. It used to be, that you could sue federal agents for violations of your Fourth Amendment rights pretty clearly.
In recent years, the Supreme Court has really walked that back and said that, "State agents, you can sue for money damages when they violate your right, no problem." Federal agents, though, courts are much, much, much, much more narrow in what they allow federal agents to be sued for just because they're federal agents. That is called the Bivens Doctrine. The court has really narrowed it a lot in the last few years. It's a real problem, because it allows federal agents to essentially live in a constitution free zone.
The second problem is that, even if you could sue federal agents, there's the doctrine of qualified immunity, which is among the more problematic things for our constitutional rights across the board. Under that doctrine, state and federal agents are protected from their constitutional violations. They don't have to pay anything. They are not liable, if they find a unique enough way to violate your rights. Because what qualified immunity says is, "Agents are only liable for clearly established violations of your rights." What that means in practice is that, in order to win against an agent who violates your rights, you have to point to an on point appellate court precedent in which an agent violated someone's rights in exactly that way before. Otherwise, the agent gets qualified immunity, case closed.
Bob Zadek: That's all judge-made law. The Supreme Court invented that doctrine many years ago to protect the personal assets of governmental officials. IJ is very much at the forefront of litigating as are many other organizations. The court created doctrine of qualified immunity and it is even worse for prosecutors there. It's absolute. And judges is even absolute, but that's for other shows.
We've been speaking today with Mike Greenberg. Mike is a litigation attorney at the Institute for Justice. The Institute for Justice is the premier public interest law firm. You, my listeners, have a lawyer ready, willing, and able to protect your rights and the rights of everybody you know at no charge to you from the overreaching of our government. Mike, thank you so much for the work of the Institute for Justice, the organization that every time I send, support to them, it makes me happy.
If ever there was a contribution to a non-profit for which I get profound personal benefit, it's supporting IJ.