constable-texas2I talking with my employer, Elliot Schlissel, Esq., about my post yesterday regarding the case of the Tenaha, TX police department’s use of apparently unreasonable searches and seizures to obtain money and property from travelers through their town to bolster their local budget. I told him that the individuals involved are being sued for violations of the victims’ civil rights. He suggested that those individuals involved  may potentially be prosecuted criminally for violations of the Federal Racketeering Influenced and Corrupt Organizations (“RICO”) law.

After reviewing some of the basic RICO statutes, I think the U.S. Attorney’s office prosecutors may have a case against the officers and individuals involved.

The RICO law, 18 USC §1962(c), prohibits “any person employed by or associated with any enterprise engaged in… activities… which affect[] interstate… commerce, to conduct… such enterprise’s affairs through a pattern of racketeering activity…” (emphasis added)

§ 1961(1) defines a “racketeering activity” as

(A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance… which is chargable under State law and punishable by imprisonment for more than one year [or] (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201… (emphasis added)

One of the acts “indictable under any of the following provisions of title 18” is extortion, which is defined by § 1951(a) as when someone “obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do (sic)…”  That section further defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

And § 1961(5) defines a “pattern of racketeering activity” as “at least two acts of [even the same] racketeering activity…”

While the town of Tenaha itself is not a proper subject of RICO prosecution because it is not a “person” under the RICO statute, the Marshall, Mayor, Constable and Shelby County D.A., in their individual capacities, would be proper “persons” for RICO prosecution. See Pelfresne v. Village of Rosemont, 22 F.Supp.2d 756, 761 (N.D. Ill. 1998).

If the facts are indeed as the San Antonio Express-News has reported, then over 140 motorists have been stopped and been “willingly” induced to sign over their property with the threat of bogus prosecutions for crimes they were never charged with and which involved searches that probably violated their fourth Amendment right to be free from unreasonable searches and seizures.

Furthermore, the Mayor’s comments defending  the practice indicated that it was their intent to use these means to bolster the cash-strapped budget of the town’s police force. This implied that their the use of the Texas forfeiture statute to confiscate travelers’ money and property using abuses of their 4th Amendment rights was a coordinated conspiracy.

Travelers’ freedom to pass and bring property between states appears to have been impeded by “wrongful use of… fear… under color of official right.” If indeed this has occurred in over half of the 140 instances of the induced property forfeitures between 2006 and 2008, and it can be shown that the officials involved took part in at least two instances of extortion each, then it would appear that the Marshall, Constable, Mayor and D.A. in Tenaha and Shelby County may be susceptible to criminal (and perhaps civil) RICO prosecution.

At the very least, the U.S. Attorney’s Office for the Eastern District of Texas ought to look into whether an investigation should be opened to determine if criminal RICO prosecution may be appropriate.

Picture courtesy of community-builder.

tenahaThe Chicago Tribune has just picked up on a story from over a month ago at mysanantonio.com. The Texas town of Tenaha is using a state forfeiture law that gives the police the right to seize any property used in a crime to bolster that department’s budget. Police officers have been using this law to stop cars traveling through their tiny (pop. about 1000) town and they have taken property from over 140 drivers between 2006 and 2008.

They apparently told people that if they didn’t sign their property over to the police, they would press charges against them for money laundering or other crimes. One waiver said “In exchange for (respondent) signing the agreed order of forfeiture, the Shelby County District Attorney’s Office agrees to reject charges of money laundering pending at this time…”

Cynically, the mayor of the town said that the seizures allowed a cash-poor city the means to add a second police car in a two-policeman town and help pay for a new police station… “It’s always helpful to have any kind of income to expand your police force.”

Without probable cause that a crime has taken place, and exigent circumstances to justify why the police must search the car without a warrant, police may not search a person’s car unless they have a “reasonable suspicion” that a person poses a danger to the police officer. And even then, they may only pat down a person or search in their immediate vicinity to the extent that such a search may help them find any weapons that could be used against them. They may not search outside of that scope searching for evidence of any crime however. Terry v. Ohio.

In some cases, the only “factual basis” for the drug or money laundering “charges” was the presence of larger sums of money in the car. And even for that, they would have had to search the car to find the motorists’ expensive property or cash without any “reasonable suspicion” of a threat to the police officer. In such a situation, that would be unconstitutional as well.

Normally, the remedy for the police’s violation of someone’s 4th Amendment rights would be suppression of any evidence obtained throught that violation. But in this case, since the individuals chose to sign over their property to the police, and no charges were filed, there is no evidence to suppress. Thus, the only remedy for a violation of these people’s Constitutional rights is by civil remedy, a §1983 discrimination case.

Thus, David Guillory, attorney for the so-far eight plaintiffs in the lawsuit against the town of Tenaha, filed a §1983 Complaint in District Court seeking compensation for the town’s violation of his clients’  Fourth Amendment Constitutional rights.

In an effort to prevent such abuses by towns in the future, the Texas Senate Criminal Justice Committe has recommended several changes to the forfeiture laws there (p.71), including a shift of the burden of proof to the government in order to seize assets:proposed-law-changes-texas

If the facts are proven to be as egregious as Mr. Guillory and the aforelinked articles suggest, I very much hope he is successful in his case against the town and that the State adopts more stringent rules to prevent abuses like these from happening in the future.

Picture Courtesy of Chicago Tribune