Asset Forfeiture - North Carolina's Dark, Discreet Deal with the Feds

How one Huntersville resident is holding government accountable for the sources of its funding,

...and how we can help

It's a safe bet that asset forfeiture isn't something most North Carolinians are thinking about on a regular basis. Even within the context of legal proceedings, asset forfeiture rarely makes the headlines.

Maybe it's because the odds that any one of us will face asset forfeiture are slim. Or maybe it’s because it's easy to write off, assuming only criminals have their money and property taken. 

The reality is far more bleak, and the government continues to steal from citizens, even in our home state of North Carolina. Fortunately, one Liberty warrior has taken it upon himself to raise awareness about this important issue, and try to get his town, Huntersville, to reject the ill-gotten spoils of government theft. 

Asset forfeiture is, simply put, when the state takes your money or property as part of legal proceedings. Once a vestige of bygone legal frameworks, it was resurrected in the mid-1980s as part of the failed war on drugs, and has grown to the point that the government takes more stuff through asset forfeiture than the “criminal” robbers who aren’t backed by the state. It is legally justified (by the same entities who reap the benefits of forfeiture) as a means of depriving criminals of the spoils of their crimes. In reality, asset forfeiture is used (sometimes with no regard for due process) to take money and property, fund law enforcement, and leverage plea agreements, fourth amendment be damned. 

There are two main types of asset forfeiture - civil and criminal. While both are problematic in concept and practice, civil asset forfeiture is far more nefarious. Where criminal forfeiture generally requires a conviction, civil asset forfeiture only requires the state to assert an arbitrary link between the property and a crime. Further, civil cases do not fall under the Sixth Amendment right to an attorney. This is ripe for abuse, and it has been abused, to horrifying degrees. 

North Carolina has banned civil asset forfeiture in almost all cases except racketeering, making it a leader in this area of civil rights. Or at least it would seem...

As these things always tend to go, there is a loophole. If local law enforcement forms an official partnership with federal cops, the federal law reigns supreme, and civil asset forfeiture is very much back on the table. Without irony, this arrangement is called an "equitable sharing program."

Credit where its due, NC has one more protection, too. Proceeds from criminal asset forfeiture are only allowed, theoretically, to go to funding education, thus, again theoretically, eliminating the incentive for local law enforcement to seize property solely for their own benefit. Of course, there is no requirement that law enforcement report forfeited assets, meaning the education spending requirement is roughly as effective as a screen door on a submarine. NC has reaped nearly half a billion dollars in windfall from the equitable sharing program over the last 20 years.

Enter Eric Rowell. Eric has been a mainstay of local Huntersville politics for the last decade, with the seemingly simple request that elected officials be held accountable for the decisions they make. 

Recently, the Huntersville two board added an item to the agenda at their April 3 meeting, seeking approval of the acceptance of $284,000 in proceeds from forfeited assets. Huntersville currently has seven officers serving on joint task forces with federal officials that make “equitable sharing” an easy option.

Eric lobbied hard prior to the meeting, not even asking that the town board reject the money, but simply inquiring if they know where it came from. He emailed all members of the city council with three straightforward questions:

• Ask where these funds are coming from, specifically where did this $284,000 come from? How many cases? What types of cases? How many different individuals? What type of assets - cash, automobiles, real estate, weapons, other types of property?
• Ask whether any of this $284,000 comes from individuals who have not been convicted of a crime related to the money/property taken from them?
• Ask whether any of this $284,000 comes from individuals who may have had their civil rights or constitutional rights violated related to the money/property taken from them?

He has yet to receive a single response.

Eric has been relentless in bringing attention to this issue, on Twitter, on Facebook, and even on the Pete Kaliner show on Thursday, April 12.

Despite his best efforts, accepting the proceeds of forfeited assets is back on the agenda for the Huntersville city council meeting, on Monday, April 17.

And, as far as any doubt exists that this could be wielded without cause against a citizen of North Carolina, there are examples of cases ongoing today, the faces of humans our state has failed and the Huntersville city council is willing to ignore. One of the most egregious is the case of Jermaine Sanders.

On November 16, 2020, Jermaine Sanders was a guest at a hotel in Mooresville when the police singled him out for questioning as he walked across the parking lot to return to his room one night. Sanders had committed no crime nor was he under law enforcement investigation, but was stopped and detained, including being handcuffed, while the police questioned him about his reason for being on the property.

Before releasing him, the police asked Jermaine's permission to search his vehicle-he refused. Hours later, a group of Mooresville police returned to Jermaine's hotel as he was checking out and again demanded permission to search his vehicle, which he again refused. Jermaine left the property to avoid any further unwanted encounters with the police. After Jermaine left, the police broke into his vehicle and conducted a search of it without Sanders’ knowledge or consent, based upon the ever-popular claim of "smelling marijuana.” During the search, the cops found some small amount of pot, as well as $16,671, which they seized – but only for "safe-keeping," not because of a suspected drug connection.

Ultimately, Jermaine was charged with simple marijuana crimes, all later dropped when no Mooresville police officer showed for trial eight months later. Before the court case had even taken place, though, on November 19, 2020, Jermaine's attorney challenged Mooresville's refusal to return his cash, taken for “safe-keeping only,” and asked the courts to order return of his money. The court did so.

However, in an apparent attempt to avoid a court order to return Jermaine's money, the Mooresville police had turned it over to the U.S. Customs and Border Protection agency (which handles civil asset forfeiture for the U.S. Department of Homeland Security – if it seems complicated, that's the point) for forfeiture under federal law. If successful, Mooresville police would receive back up to 80 percent of the cash for its part in originally taking the money and then asking the CBP to consent to take and forfeit it in federal court. This splitting of private property that was seized only for “safe-keeping” is made possible by the federal “equitable sharing program,” which, as Jermaine's case highlights, is easily abused.

In the three years since Jermaine's money was unlawfully taken from him, as Iredell County judges agreed, the comedy of errors that the Town of Mooresville has produced is beyond comprehension. The Town has argued, for example, that it and its PD are not proper parties to Jermaine's civil case because they supposedly spirited his money out of NC's jurisdiction before a judge first ruled the police must return it – an argument Iredell County judges dismissed.

After facing contempt, injunctions disallowing the Mooresville police from attempting to spirit the cash of other persons out of NC under similar circumstances involving unlawful searches and seizures, failed appeals, and even being threatened with jail time for refusal to return cash equal to that taken from Jermaine, the Town and its PD have successfully kept Jermaine's state case tied up in litigation, and have cooperated with their federal allies to keep the federal civil forfeiture action going against Jermaine's cash (because with federal civil forfeiture, they sue the property, not a person) at the same time. As a result, nearly three years later, Jermaine is still fighting for return of his property that police seized only for “safe-keeping.”

When asked about how frustrating his case must be, and how hopeful she is that Jermaine will see his stolen cash returned, Sanders’ civil forfeiture attorney, Maria T. Perry, told us, “It has been a long road to travel fighting in two courts, against powerful law enforcement agencies, to obtain return of Mr. Sanders' unconstitutionally seized private property. However, myself and the justice groups that have organized around Mr. Sanders' case, are committed to pursuing justice until such is finally achieved.”

At the core of the principles on which our country is founded is the belief that you should be secure in your life, person, and property from unreasonable interference by the state. When someone not wearing a badge and uniform takes your stuff, we call it robbery. This situation is no different, and its time we hold all criminals accountable. We can start with the Huntersville town board (contact them here) and the Town of Mooresville (contact them directly here and report your concern here).