I'm a long-time critic of state and federal forfeiture laws. Civil forfeiture laws, supposedly derived from an obscure passage in the Bible, permit police to seize your property without ever charging you with a crime, much less convicting you of one. Based on the flimsiest imaginable evidence (perhaps provided by a "confidential informant"), police can seize your bank accounts, security accounts, your vehicle—even your home—if it's allegedly purchased with, connected to or "facilitates" any one of more than 300 crimes.
Criminal forfeiture laws are just as bad. Once prosecutors obtain an indictment, they can go about seizing all property allegedly connected to your crime, including funds you might plan to use to hire a defense attorney. And now, according to prosecutors, they can literally seize the shirt off your back.
Last month, federal prosecutors in California authorities filed an indictment charging 79 members of the Mongols, a West Coast motorcycle gang, with various racketeering, drug and money laundering offenses. As is typical in organized crime cases, a key part of the indictment is a request for forfeiture of supposedly criminally derived assets. The feds also filed a parallel civil forfeiture case against assets the Mongols owned.
Among other assets the Feds want to seize is the Mongols’ trademark, which portrays a pony-tailed warrior with a handlebar mustache wearing sunglasses. According to Thomas O’Brien, the U.S. Attorney prosecuting the case, “If any law enforcement officer sees a Mongol wearing his patch, he will be authorized to stop that gang member and literally take the jacket right off his back.”
I can certainly appreciate O’Brien’s desire to shut down what the indictment describes as a tightly organized group routinely engaging in murder, torture, drug trafficking and other offenses. But if the government can seize any article of clothing containing a Mongol patch, why can’t it then ban—and subsequently seize—other items containing unpopular symbols?
I can think of numerous items that many people find objectionable: Confederate flags, Nazi swastikas, or robes worn by the KKK, among others. Could the government ban ownership of these items based on an indictment of certain people who display them? If the government decided to seize a popular retail brand like The Gap, could police fan out and start seizing teenagers’ baseball caps and T-shirts? Under O’Brien’s logic, the answer would be yes.
And there’s an additional problem: the Mongols don’t even own their trademark! Back in April 2008, the Mongols transferred its trademark to Shotgun Productions, LLC, in April, a company that isn't even named in the indictment.
Until federal prosecutors brought this case, the government at least had to allege that your property was used for an illegal purpose. But in Thomas O’Brien’s world, you can lose your property simply because it has the wrong logo on it.
Forfeiture laws are some of the most insidious legal procedures ever devised by mankind. I hope that the ramifications of this case give Congress an incentive to enact significant reforms, if not abolish forfeiture altogether. It’s about time!
Copyright © 2008 by Mark Nestmann
Update: In 2011, a federal court dismissed both the civil and criminal forfeiture cases seeking to seize the rights to the Mongols trademark.
(An earlier version of this post was published by The Sovereign Society.)
