Sheriffs Defying a Hypothetical Federal Gun Grab Means Nothing If They Will Cage You Over a Plant

By William Norman Grigg
Oct. 17, 2015

Elkhart County, IN — Brad Rogers, Sheriff of Elkhart County, Indiana, has encouraged residents not to register their firearms and has promised to defy any executive order requiring gun confiscation. While a federal gun grab remains a hypothetical proposition, Rogers — a self-described constitutional sheriff -- could take immediate action to battle ongoing federal abuses in his county committed in the course of the patently unconstitutional “War on Drugs,”

including the variety of government-licensed theft called “civil asset forfeiture.”

One small but significant first step would be for Sheriff Rogers to cancel a training session by the "Desert Snow" asset forfeiture consulting group that is scheduled to take place in Elkhart next July. Founded by former California Highway Patrol Officer Joe David, Desert Snow has tutored police in the art of turning every traffic stop into a potential profit center. Officers are taught how to bully intimidated people into allowing "consensual" searches; how to depict such things as open containers of water or soft drinks in the vehicle's interior as “indicators” of narcotics trafficking; how to write reports and present courtroom testimony that will make their stops and seizures more palatable to judges.

Joe David has built a financial empire by teaching forfeiture seminars across the country and overseas. He also nearly wound up in prison in Oklahoma after it was revealed that he and other Desert Snow associates were illegally conducting traffic stops and seizures despite the fact that they were not sworn law enforcement officers.

As a law enforcement officer, Sheriff Rogers should view David and his associates as a likely source of criminal mischief. As a "constitutional peace officer," he should be condemning their activities, rather than using his office to place his imprimatur upon them.

Sheriff Rogers is on the advisory board of the Constitutional Sheriffs and Peace Officers Association (CSPOA). Regarded by some left-leaning "watchdog" organizations as an "anti-government hate group," the CSPOA encourages elected sheriffs and local police chiefs to resist federal encroachment on the reserved powers of states and local governments. Sheriff Rogers was criticized by some Elkhart County residents for traveling to Bunkerville, Nevada in April 2014 on what he called a "peacekeeping" mission during the stand-off between the BLM and the family and supporters of embattled rancher Cliven Bundy.

Rogers also intervened on behalf of Amish farmer David Hochstettler, a raw milk producer, when the FDA demanded to search his farm without a warrant in 2010. Summoned to appear before a federal grand jury, Hochstettler refused, invoking his Fifth Amendment right against self-incrimination. He also contacted Sheriff Rogers, who told the FDA that any federal official who sought to inspect the farm without a proper warrant would be arrested on trespassing charges. The grand jury subpoena issued to Hochstettler was eventually withdrawn.

The sheriff has been voluble in his criticism of other varieties of federal overreach, including the ubiquitous practice of civil asset forfeiture.

"Criminal asset forfeiture and civil asset forfeiture are different in their scope and constitutionality, in my opinion," Rogers wrote in the June 19th installment of his "Ask The Sheriff" column for The Goshen News. "Criminal asset forfeiture is seizing property from persons who have been convicted of a serious crime, defendants are allowed due process, and the forfeited property was typically involved in the carrying out of the crime."

Sheriff Rogers appears to believe that federal efforts to enforce drug prohibition are constitutional, despite the fact that no amendment has been enacted to authorize the program (as was necessary in the case of alcohol prohibition). Accordingly, he approves of criminal asset forfeiture in dealing with people convicted of narcotics offenses. That distinction would apply he writes, "when a drug dealer is dealing out of his car and the police seize the car because it was involved in a criminal act. After conviction and due process (which allows the defense to argue against forfeiture), the judge rules that the car be seized and the government take ownership of the vehicle. Criminal asset forfeiture is constitutional."

In so-called civil asset forfeiture, by way of contrast, government agencies confiscate property "without criminal charges and without due process, often merely on hunches and without probable cause that a crime has been committed. Although currently permitted throughout the nation and currently legal, civil asset forfeiture is not constitutional, in my opinion."

"Legislators at the federal and state levels should take action to end such practice and criminalize these acts by government officials involved in such civil asset forfeiture," Sheriff Rogers continues. "Law Enforcement officers and government officials should end such practices of civil asset forfeiture now! This Sheriff refuses to participate in this unconstitutional government action."

Were he consistent in his approach to federal over-reaching, Sheriff Rogers wouldn't wait for legislatures to act: If he is willing to arrest FDA regulators for trespassing, he should be prepared to arrest federal narcotics agents for theft when they seize money and other property without filing criminal charges against the owner.

Like every other jurisdiction in the United States, Elkhart County is afflicted by a federally subsidized multi-jurisdictional narcotics task force -- in this case, the Interdiction and Covert Enforcement unit (ICE). As its name indicates, ICE is essentially a secret police organization that employs informants, controlled buys, and other methods to enforce federally mandated drug prohibition policies.

The Elkhart County Prosecutor's Office explains that carrying out the "seized asset forfeiture program" is one of the central functions of ICE, and boasts that it has confiscated "over $1,500,000 in criminal assets" -- a category that includes money and property taken without a criminal conviction, or even formal criminal charges.

"Through the asset forfeiture program, criminal assets are seized by law enforcement, then ordered forfeited by the court," the Elkhart County Prosecutor explains. "The proceeds are then distributed back to law enforcement for reinvestment in crime fighting." Police agencies are able to retain forfeiture proceeds because of an "equitable sharing" arrangement with the federal government that allows them to circumvent the requirement that forfeiture revenue be placed in the general education fund.

Elkhart County Prosecutor Curtis Hill is an exceptionally passionate proponent of the drug war. In June, an ICE-coordinated joint investigation with officials from St. Joseph County led to raids on 12 convenience stores suspected of selling synthetic marijuana. Unlike his colleagues in St. Joseph County, Hill asked for, and received, staggeringly high bonds on 11 people who were arrested in the crackdown -- a total of $2.35 million for non-violent offenses -- and is seeking to seize the stores through forfeiture proceedings.

According to the Elkhart County Prosecutor, the draconian approach to this case is meant to tutor county businessmen in the "right" way of thinking about drug prohibition.

"We're hoping the consequence is sufficient enough to get people to think differently in terms of how they run their businesses," Hill told the Elkhart Truth newspaper. "If they don't think differently, there will be more of this coming. It's pretty simple."

By withdrawing his cooperation from the ICE task force, and investigating the county prosecutor's office for potential acts of official corruption, Sheriff Rogers might be able to induce the grandstanding prosecutor to think differently about the Bill of Rights and the wisdom of prohibition.

Unfortunately, there appear to be limits to Sheriff Rogers's quixotic commitment to the Constitution. This is why his office is involved in after-dark, no-knock SWAT raids in support of ICE's investigations.

Sheriff Rogers's willingness to allow nighttime military-style raids in the cause of federal drug prohibition should give his constituents reason to doubt his promise to intervene on their behalf in the event that the same federal government decides to prohibit private ownership of some kinds of firearms, as well.