The police can legally steal your car. Did you know that? I’m not saying they would, but they could. They would not call it stealing. Under Hawaii state law, Civil Asset Forfeiture allows law enforcement to take your property almost at will. All they have to do is claim the property, car, boat, house, gun or cash had something to do with an illegal activity. Proof is not needed, just suspicion. There is a judicial review process, but it’s one-sided, as easy as getting a search warrant. If you have more cash on you than they approve, they can suspect and conclude it was for an illegal drug deal. Civil Asset Forfeiture turns the Fifth Amendment: “No person shall be … deprived of life, liberty, or property, without due process of law.” On its head.
In San Diego, once the DEA found a small quantity of marijuana in the duffel bag of a student research assistant on a Scrips institute ship. They tried to confiscate the entire multi-million-dollar ship. Since the ship belonged to the University of California, the U.S. Attorney decided to drop the claim. What would DEA do with a 94-foot deep-ocean research ship anyway?
The breakthrough case involved a young man enroute from his home state to enroll in college in California. His dad gave him cash to secure an apartment. Local police in New Mexico stopped him for some minor traffic infraction, searched the car, discovered cash and concluded without any other evidence that the cash was intended to buy drugs. Dogs I hear will detect cocaine on 80% of $100 bills. Police took the car and the cash, then told him to go away, we’re keeping the car and cash, too bad. He went through the complex legal process to recover the assets. He had to sue in civil court. In some states the car would have to sue the police. He eventually won. New Mexico changed the law, the first state to do so. So far three states have ended Civil Asset Forfeiture. Hawaii is not one of them. Many have due process procedure that is more just. Hawaii is rated as one of the worst. Federal officers can still use Civil Asset Forfeiture, and sometimes split the take with local law enforcement. They especially like to confiscate sports cars, helicopters and fast boats along with cash. There have been tales of police chiefs enjoying cars they could not possibly afford.
Imagine you give a friend a ride. He has his prescription Oxycontin in an unlabeled container. When he gets out, he accidentally leaves the container in your car. The police stop you on some pretense and notice the container in plain sight. They can claim three felonies. Possession of a narcotic. Possession of a narcotic for sale. Having a narcotic in the wrong container. None of those charges would stand up in court, but they could easily confiscate the car. You on the other hand are stuck with huge legal expenses and no car.
Two years ago, the state Legislature, both houses, voted unanimously to restrict Civil Asset Forfeiture. Gov. David Ige vetoed the legislation at the last day of his first term, after the Legislature had recessed. The Legislature did not reconvene to overturn the veto. The 2021 session did not even bring it up. So much for government-for-the-people. This is a good time to point out there have been many corruption scandals involving Honolulu police and prosecutors. The state Legislature sometimes seems to operate as if Honolulu County and Hawaii State were one and the same.
Civil Asset Forfeiture started as a measure to deal with problems on the high seas, like piracy and smuggling where there was no real jurisdiction. Its use inland is just one of the many bizarre side effects of the war-on-drugs. Like the labor shortage aggravated by rejecting anyone who tests positive for having used marijuana in the past, even if there is no sign of impairment.
Ken Obenski is a forensic engineer, now safety and freedom advocate in South Kona. He writes a biweekly column for West Hawaii Today. Send feedback to obenskik@gmail.com