Robert Everett Johnson is an attorney at the Institute for Justice--a group famously described as a "merry band of libertarian litigators." At IJ, we fight government abuse across the country.
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My short bio:
Hi, I'm an attorney at the Institute for Justice--a group famously described as a "merry band of libertarian litigators." At IJ, we fight government abuse across the country.
In my latest case, I'm representing a woman who's fighting to keep the City of Albuquerque from taking her car using a process called civil forfeiture--a legal mechanism that allows law enforcement to seize and sell property without charging the owner with a crime. New Mexico passed a law abolishing civil forfeiture just last year, but law enforcement in Albuquerque are flagrantly disregarding the law and continue to seize and sell hundreds of cars each year.
Here’s more background on the case: http://ij.org/case/albuquerque-civil-forfeiture/#backgrounder
Plus links to the posts that made the front page:
The Albuquerque Police appear to have gone rogue by flagrantly ignorning state law. Is there any prospect that they would also simply ignore a court order to stop such forfeitures?
Perhaps! The ordinance was actually declared unconstitutional years ago, and the City just kept on taking cars on the theory that it was a trial court decision and only bound the City in the one case where it was entered. Eventually the City made some narrow changes to the law to "fix" the problem identified by that decision (without really addressing the underlying issues) and kept on doing what it's doing.
But rest assured we plan to keep fighting until we've shut this program down. If the City doesn't follow a decision, there are things we can do to make sure they come around. One way or another this does have to end.
What is their justification for seizing the assets and reselling them?
With civil forfeiture, the government's justification is that the property itself is a guilty of a crime. That may sound crazy -- how can a car be "guilty"? -- but we're dealing with some crazy stuff. The case here is literally titled City of Albuquerque v. One 2014 Nissan 4DR Silver, meaning my client's inanimate automobile is the "defendant" in the case.
Here, the city claims the car is "guilty" because my client's son drove the car under the influence of alcohol. Of course if he did that, he should be punished. Nobody is condoning drinking and driving! But the question is why my client should be punished for something she didn't do.
This is a pretty common scenario in Albuquerque. Fully half the vehicle forfeiture cases pursued by the City every year involve cars that are owned by somebody other than the alleged drunk driver.
How did you get into doing what you're doing?
Good question! It's more a series of decisions than a single thing that I can point to. I've been a libertarian all my life -- mostly because I don't like being told what to do and don't like seeing other people told what to do. In college I actually studied english literature, with an anthropology minor, but when I graduated I wanted to do something a bit less bookish and more engaged with the world. Law seemed like a good middle ground; still intellectually interesting but outside of the library. I sometimes describe law as "applied philosophy," and that's exactly what attracted me to it.
After law school, I spent two years working with federal judges (Alex Kozinski, out in California, and Justice Kennedy on the Supreme Court) and then three years at a big law firm. I liked the law firm I worked at, but the big law life wasn't for me. I wanted something where I felt passionate about what I was waking up to do every day. I'd been following IJ's work for a long time--and had worked there during law school--and it was just a natural place for me to pursue my passions.
What you do is a great service for the American people, thank you!
I'm from TN and remember John Oliver doing a big piece about our state's civil forfeiture. Please fix my home state next!
Just kidding, but how do you decide cases to pursue? Do you wait to represent a civilian challenging the state? Or do you ever look at law books and find something unconstitutional and just fight that law in court?
What symbol of state oppression will you dismantle next?
There actually have been some reform proposals in Tennessee, which would require law enforcement to provide greater transparency on their use of civil forfeiture: http://www.tennessean.com/story/news/politics/2016/03/31/house-approves-bill-requiring-civil-asset-forfeiture-reports/82482058/
Of course transparency isn't a fix, but it is a start. It's amazing how little information is available in some states. If we don't know the scope of the problem it's harder to convince people to fix it!
In terms of cases, we pretty much always need a client who is an ordinary person affected by the law. (Otherwise courts will throw you out saying you lack "standing" to bring the case.) Plus aside from the legalities of it, it's a lot easier to explain the injustice of a law when you have a client who puts a human face on the issue. Sometimes our clients seek us out, and sometimes we find our clients. In the case I'm litigating in New Mexico, I was looking for a client and made phone calls to people who were fighting their forfeiture cases without any help from a lawyer. My client was doggedly resisting the City's efforts to take her car even before I came on the scene and offered to help.
When was CAF instituted as law? How was this found as a fair and due process of law? What other laws should the public be more aware and force a change in legislation?
Thanks for standing up for private property and the overreach of govt powers
Big picture, civil forfeiture's origin story is all about the drug war. Its origins trace back much further, to admiralty law (the law of boats), but it really took off in its modern form in the 1980s with the WOD. The idea -- which I'm sure seemed reasonable at the time -- was to give law enforcement a financial incentive to take money from drug kingpins by allowing law enforcement to keep the money to fund their budgets. There's a certain logic to it: If you want police to do their job, give them a financial incentive to do it.
Of course, the problem we see is that there's a clear mis-match between the behavior lawmakers wanted to incentivize (going after cirminals) and the behavior that civil forfeiture actually incentivizes (going after the easiest, fattest financial targets). What we see in practice is that the financial incentive created by civil forfeiture gives police motive and means to take money from innocent people. Not good.
Courts bent over backwards to uphold all this because of the whole war on drugs & tough on crime context, but as we see how it plays out in the real world I think they're starting to change their mind.
As for other laws - profit-motivated ticketing is a close cousin of civil forfeiture that needs more attention. Some towns fund their entire budget imposing bogus fines and fees (see: http://ij.org/case/pagedale-municipal-fines/).
Do municipalities such as Albuquerque ever name invaluable inanimate objects as defendents? Or only things they can sell for a tidy revenue? Has there ever been a case like City of Albuquerque vs. Rock that smashed a window or City of Albuquerque vs. Cigarette lighter used for arson?
What is the least valuable thing the city has seized and named as a defendant?
Hah! No, I've never seen a civil forfeiture case trying to take worthless property. This is ultimately all about the money: If the property isn't valuable, there's no incentive for the government to take it. (Except maybe if the property is contraband -- drugs, guns, etc. -- but that's an entirely different subject.)
Though, relatedly, the government does often take stuff that is valuable and worth taking but not so valuable that it would be worthwhile to pay a lawyer to get it back. Lots of the cars seized by the city are worth no more than a couple thousand. Or, nationally, we see tons of roadside seizures of cash in amounts of $5,000 or less. Just to get your money back is going to cost you $5,000 in legal fees, so people are forced to give up without a fight. Mostly for that reason, civil forfeiture cases rarely go to court. (Part of what's fun about being at IJ is seeing the surprise of government attorneys when somebody actually fights back.)
By that logic then, could the city seize a house if teenagers were underage drinking inside or if domestic violence occurred inside?
I think no_treason_6 covered this one. That's not too far from cases we've actually seen -- including a case in Philly where the city tried to forfeit a house because the owners' kid sold $40 worth of drugs.
What state has the worst laws in place that are overly harsh to it's residents?
Honestly, so many of them are bad it's not really a fair question. We did a study ranking the states' civil forfeiture laws and assigning them grades. Only 14 states and D.C. got grades of C or better. The majority failed.
What recourse does the common citizen have when those tasked with enforcing the law ignore the law?
That's why we have courts, and we need good judges who are willing to stand up to elected officials and enforce the law. Of course litigation is expensive, and the common citizen can't always afford to fight. In that case -- call IJ!
Do you or your organization target any issues other than CAF, and if so, what are they?
We do! IJ has four pillars -- property rights (e.g. civil forfeiture, eminent domain), economic liberty (e.g. occupational licensing), first amendment (e.g. speech licenses), and school choice. You should check out our website! http://ij.org/issues/
Thank you for doing what you do. This process needs to stop.
Why do you think there is not more outcry from the voters to end CAF? It's good to have organizations like yours fighting it in court, but really if the voters turned this into an issue then the mayor and city council would waste no time ensuring that such CAF would never take place in Albuquerque.
Thanks! That's an interesting question about voters. On the one hand, there is a growing outcry about this issue. We're constantly working to get the word out there, and the media is doing a good job picking up the story. (That John Oliver piece probably did more than anything to raise awareness of the problem.) We ran an opinion poll in New Mexico and found that over 80% of New Mexicans agree no one should have their property taken without being convicted of a crime.
At the same time, though, voter outrage can only do so much. People vote on a range of issues, and politicians can sometimes get away with ignoring the voters on an issue here or there. The reality with civil forfeiture is that law enforcement is a powerful lobbying force in most states, and law enforcement has been strongly opposed to civil forfeiture reform. That's been enough to tank a number of reform efforts.
Ultimately that's why we need the courts. Democracy is great, but sometimes even democracies violate peoples' rights. The role of courts is to step in and protect individuals from their governments.
A very good explanation.
I remember a case from not too long ago in my home state, Illinois, where a couple was pulled over a couple driving to Utah to see a specialists for a medical issue. The cop searched the car without consent or a warrant and found over $100,000 in cash in the car. The cash was seized and transferred to the federal government. If i remember correctly over 25 states received a D or worse in terms of their civil forfeiture laws.
I guess my question is how can people prevent this from happening to them? Also what needs to be done to improve these laws?
Thanks for the great post!
Ugh, crazy story. That kind of roadside seizure is super common, but it makes me mad every time.
There's a lot of changes that need to be made to the nation's forfeiture laws, but I think the big ones can be boiled down to two: First, nobody should have their property taken without being convicted of a crime. And, second, law enforcement shouldn't be able to keep the money; it should go to the general fund to be appropriated by the legislature. That way we take away both the means and the motive to take property from innocent people.
Ironically, New Mexico amended its laws in 2015 to make both those reforms. We hold up New Mexico's reforms as a model for the rest of the country to follow. The problem here is that city officials in Albuquerque aren't following the reform law! So even once reforms are passed, it's still important to follow-through and make sure they're enforced.
Is IJ hiring new lawyers, and how competitive is the hiring process? What sort of experience or other things do you all look for in an applicant?
We're always hiring! http://ij.org/opportunities/employment-opportunities/?p=job%2FoUIN3fwc
It's very competitive, but that doesn't mean you shouldn't apply. We're looking for smart people with the skills to do the job -- not any particular type of experience or resume check marks. The important thing is to convince us you're smart, energetic, personable, and passionate about the issues.
Do you have any advice for someone looking into pursuing a similar line of work? In paralegal school not sure if I should go to law school? Would love to focus on human rights violations. You are too cool.
A lot of lawyers try to dissuade people from going to law school, but I'm not one of those. I'm the rare lawyer who actually loves his job. But I do think people need to think really seriously about why they want to go to law school and what their plan is to make it financially feasible. Law school is extraordinarily expensive, and some people end up taking out a lot of loans that become an albatross they can't pay off or lock them in high-paying jobs they hate (or both). Don't become one of those people! But if you have a passion for human rights work you should talk to people in the field and see if you can come up with a realistic plan to get from A to B. Plan, plan, plan, then do. Good luck!
Edit: also, thank you for the AMA and for the work you do.
Is there a lot of backlash from the government? Do they target your friends/family to keep you quite?
If you find yourself in a situation where a police offer is looking to seize your property, what actions should we take on the scene or directly afterwards to either prevent the forfeiture or to best prepare ourselves for getting the property back later on?
"Lawyer, please." Then: Silence. Silence. Silence. Silence.
Also: "No you can't search there. No I don't consent to search."
Do you feel the injustice in society today especially in USA is just greedy individuals being corrupted on an individual basis or is there a more sinister overall plan by the rich elite?
I'm temperamentally inclined to think that most people mean well and are just unable to see the harm caused by their actions. Though honestly doing this job, and seeing the things government can do, has made me a bit more cynical. Some people are evil, and evil people like getting into government since it gives them a platform to tinker with other peoples' lives. I'd say our problems boil down to 10% evil and 90% misguided idealism. Either way the solution is less government, more self-government.
What type of pizza did you buy to celebrate?
I'm a big fan of the Route One Special at Monterey's Pizza. Best Pizza in Alexandria, VA!
Red or green?
I wrote a seminar paper on Civil Forfeiture for law school and ended up looking into IJ reports quite a bit as a source (that, and histories of Deodands and the British Navigation Acts). You guys do great work.
My question -- how'd you end up working for these folks?
Also, my conclusion was very critical of the practice -- and I mentioned Albuquerque, actually -- but how do we get around what seems to be a successful use of asset forfeiture against cartels?
When I was in law school, I applied to work at IJ over my 1L summer. I really respected the work that IJ was doing, and it seemed like a great place to work. There was a whole interview process, including some questions about identifying my favorite philosopher, and thankfully they hired me.
Fast forward seven years, and I'd graduated law school, clerked, and worked at a firm. I was still in touch with IJ and had done some pro bono work for IJ while at my law firm to keep in touch. Fortunately for me they were willing to take me back.
We're always looking for lawyers to help out with research and other issues, and that's a great way to get involved so you're not a total stranger when you apply.
In reading the article, it would seem the way the civil forfeiture law as written for Albuquerque is totally against Constitutional law, hasn't this issue raised before by other attorneys? If so, what was the outcome of those cases? If it has been disputed before, did the city just quietly settle out of court to keep their law intact?
Have they approached you and the client about this?
There have been constitutional challenges in the past -- some of which actually were successful in raising narrower challenges, prompting the city to make technical changes to the law -- but nobody has raised the bigger-picture issues that we're raising now. Our claim is that government attorneys can't have an overwhelming financial incentive to take property, as that warps the enforcement of the law in violation of due process. We're treading on new ground there, at least in New Mexico. (IJ is currently pursuing the same legal theory in our class action challenging civil forfeiture in Philly.)
Honestly, most forfeiture cases in Albuquerque don't even involve attorneys. The people whose cars are being seized can't afford to pay for lawyers, so they appear pro se to litigate the case themselves. We're shaking things up just by walking in the door.
Lawyers - the new warriors!
I haven't read anything, but it seems open and shut. Is anyone likely to see jail time?
For better or worse, government officials practically never go to jail for violating peoples' constitutional rights. We save that punishment for government officials who speak without following all the speech laws and filling out all the required speech paperwork.
For us 1L's out there, what, if any, study aides did you use that you would recommend? Any tips would be appreciated. Thanks for your time!
My advice: read the cases, attend the lectures, and make your own outline. You'll learn better that way than trying to digest somebody else's study guide.
Of course if there are things you still don't get after doing all that, then a commercial study guide can help. But don't lean on it too much.
I will as soon as I finish a petition to withdraw a guilty plea (based on Birchfield).
Zoning restrictions and minimum parking requirements legislate a maximum supply. Many argue they have created the housing affordability crisis now gripping most vibrant metro areas. Is there any prospect you or IJ would target them?
Yes! Zoning laws are the worst. We're always looking for the right case and client to raise the issue.
Do you work closely with Robert McNamara? I met him at an IHS seminar, he's a great guy. Wish you all the best in your continued efforts to fight for the people. If you ever need some help with data analysis of any kind please feel free to reach out!
Bob is the best. That's how I ended up at IJ: I was out drinking with Bob at a bar, and I said "geez I'd love to work at IJ." And he said, "you should!" And I said: "You're right!"
Where does one get the best breakfast burrito in New Mexico?
Not a big breakfast person -- digesting a burrito all day slows me down. But the sopapillas and margaritas at El Patio de Albuquerque are fantastic.
Just donated to IJ based on this comment. I couldn't ask for more!
Do you think the DOJ will be focused more on real criminals in 10 yrs or continue putting non violent petty criminals in jail? Do you see an overturn of how criminal justice courts work toward these non violent or drug related charges in the next decade?
I hope so! Lots of that depends on Congress. I've had some run-ins with really terrible prosecutors at DOJ, and I don't want to let those guys off the hook. (Though I also have friends at DOJ - they're not all bad!) Ultimately though Congress writes the law and DOJ enforces it. One of my pet peeves is when Congress holds hearings to yell at DOJ for enforcing laws that Congress could (in theory) take off the books in a heartbeat.
There's certainly lots of good movement in Congress to change the law for the better. Whether that goes anywhere, we'll see.
Either way, beyond the political solution, we need courts to begin stepping in to enforce peoples' rights. That's happening, but there are also a lot of judges who just don't see that as their role. We need to convince judges that it's OK to stand up for the individual against the government.
What is your take on all of the sovereign citizen arguments that have been made recently? (The Bundy family comes to mind for me)
I totally get the impulse that drives people to make those kinds of arguments, but for the most part the arguments aren't rooted in the history or theory of the constitution and courts don't take them seriously. It's really hard work to translate the human impulse towards freedom into a legal argument that a judge will understand and accept. We have to do a ton of research, reading, and creative thinking to bridge that gap in our cases.
Hi, I'm very interested in this - from what I've seen, they are actually bringing charges against material goods, such as 'City of XXX Police versus $3516.72'. How can inert material matter be charged with a crime and taken to court?
Also, could these seizures be considered 'Theft Under Color of Authority'?
I for one am horrified at the lengths government agencies will go to to disrespect property rights of citizens, REGARDLESS of any criminality. I don't even believe that Drug Sellers should have their stuff seized through criminal forfeiture. Thank you so very much for taking this fight on. You have my respect and support(ive words, at the least).
Thanks! You're absolutely right that the whole theory here is that inanimate property is somehow guilty of a crime. Seems crazy to me, but there you have it.
"Theft under color of authority" isn't a bad way to put it. If you want to get all legalistic, I'd say the government is taking peoples' property in violation of due process and is doing so under color of state law.
Are you using local counsel in Albuquerque, or are you representing your client PHV?
We're joined by Asher Kashanian, a New Mexico attorney, as local counsel. Asher has been great! Of course we've also entered into the case PHV (for all the non-lawyers, a fancy way for out-of-state attorneys to enter into a case in a state where they aren't licensed). IJ attorneys do all the substantive legal work in our cases.
Civil forfeiture is also used by the federal government to cover unpaid fines or restitution that convicted criminals claim they can't pay (usually their targets are people suspected of hiding assets).
While it makes sense to be focused on fighting civil forfeiture by police that targets innocent people or as a loophole to exact excessive fines, I think it's oversimplifying to say civil forfeiture necessarily has the kickback element to it.
If a person is convicted of the crime, everyone agrees the government can use criminal forfeiture to take their money. (Within limits of course.) The problem is that civil forfeiture allows government to take cash from innocent people and then keep that cash to fund their budgets. We can fight crime with criminal forfeiture; civil forfeiture is unnecessary.