Double Meanings, Legal Fictions, and the Cover They Provide

Police all over the world take things from people. Whether legal or illegal, the practice often depends on keeping up a double meaning that provides cover.

A friend in Bolivia—a truck driver—told me about the first time transit police pulled him over in La Paz. As they stood in a crowded street, the officer told him that he had to pay a “fine” of ten bolivianos. My friend reached into his pocket, but the officer, flustered, shooed him behind the truck, saying, “No, no! Not out here in the open.” They finished exchange behind the truck, pretending they were out of sight, while passers-by pretended not to notice. From then on, my friend knew that when the police demanded a “fine” they were really taking a bribe, and he was expected to provide some cover for the transaction.

Cover comes in many forms. Coded language might do the trick. A judge might suggest that a plaintiff needs to put four red stickers (red being the color of hundred-boliviano notes) on their filing, if they would like it to be considered favorably. A police officer might point to a line in a regulation to indicate that the number associated with the regulation is appropriate amount to offer: “Law number fifteen,” for 15 bolivianos.

What kind of a thing is a Ford Thunderbird or a Gold Crucifix? Cartesian common sense might describe both as an inanimate pieces of metal, objects acted upon by human subjects. Yet, the assets are defendants in real lawsuits.
Perhaps the most common kind of cover is a manila folder. A petitioner can slide the folder across a desk. A policeman or a bureaucrat can open it, look at the bills enclosed, and say, “Everything looks in order.” Sometimes, the manila folder is so thin that the outline of the bills is clearly visible.

These kinds of practices are clearly abusive and distinctly illegal.

In the United states, police officers also take cash from people who have not committed crimes. Police use a legal convention called Civil Asset Forfeiture, which allows them to use this cash to buy equipment for the local police department and even pay bonuses to police officers. The practice has received attention from Vice to the Cato Institute, including the Washington Post, The Heritage Foundation, and Slate. Common during prohibition, the practice was revived by the Comprehensive Crime Control Act of 1984—as the “war on drugs” was ramping up—which established a means for sharing property, seized under federal law, among the state and local jurisdictions that participated in the seizure. Most states passed their own laws encouraging the practice’s broad adoption.

Those states that participate fully in the program and permit proceeds to fund law enforcement activities tend to have more public scandals over the practice. Some police departments have used asset forfeiture to confiscate the homes of elderly parents of drug-dealers. Others have threatened to take away the children of innocent motorists. Since these are civil (rather than criminal) cases, the burden of proof is much lower. Often the government only has only to establish a reasonable suspicion that the property was involved in the commission of a crime, rather than the standard of “beyond a reasonable doubt” that applies in criminal cases. The practice can directly benefit private lawyers who defend police departments against those who sue to get their property back. Even judges who preside over these cases can receive proceeds from forfeitures. Everyone who is not on the take (well, almost everyone) hates the practice.

These kinds of practices are clearly abusive, but they are not illegal.

A car like this one was sued for selling marijuana. Charles01 / Wikimedia Commons (Public Domain)

In these cases, law—rather than a thin manila envelope or coded language—provides the cover for abusive practices. The practice depends on a longstanding legal fiction that treats the seized property as the defendant, accused of involvement in criminal activity. The principle—that property can be held liable for legal violations (allegedly) committed by its owner—dates back at least to the British Navigation Acts of the seventeenth century, which treated the vessel that violated British customs law as the offending party, rather than the owner. This legal fiction allowed the crown to seize goods when the owner was thousands of miles away.

Today, this same legal fiction—known as in rem (against the thing)—converts property into agents liable for criminal activity, even when the owner has not been charged with a crime. The jurisdiction files a lawsuit against the property itself. The cases have names like “State of Texas v. One Gold Crucifix,” or “State of New Jersey v. One 1990 Ford Thunderbird.

Here, enshrined in US law and at the heart of policing in the United States, we find the principal question of the ontological turn in Anthropology: what kind of a thing is a Ford Thunderbird or a Gold Crucifix? Cartesian common sense might describe both as an inanimate pieces of metal, objects acted upon by human subjects. Yet, the assets are defendants in real lawsuits. The legal fiction behind Civil Asset Forfeiture produces both the Ford Thunderbird and Gold Crucifix as other-than-human subjects, with their own dangerous agencies that must be controlled and managed. I say “produces,” rather than “represents,” because this fiction has the very real consequences. It animates the actions of a whole range of humans, including police officers, judges. Once an asset is produced as a legally liable actor, everyone operates in a world in which that object is, in fact, a subject that can be held accountable for its actions. Outcomes that would be illegal if the property were merely an object are suddenly a legal possibility when the asset, and not its owner, is the subject of a lawsuit.

Although this fiction is far more elaborate than a manila envelope or a bit of coded language, the principle at work is the same. It allows two incongruous stories to unfold at the same time, and the participants in these fictions or parallel stories decline to resolve them into a single meaning.

This double-ness—the two-faced nature of the action, as Diane Nelson might have it—provides the cover that allows these abusive practices to occur. Cover depends on the capacity to be “both-and.” A manila folder is both an empty envelope and a container for a bribe. My friend the truck-driver stumbled because he did not understand that the police officer’s demand that he pay a fine had another meaning.

In the US, such double-ness—the condition of “both-and”—is no less at the heart of “cover.” The law itself provides the ambiguity and uncertainty that facilitates abuse. A legal fiction allows property to be both inert and an actor in a criminal assemblage. This unresolved double meaning provides the cover that allows police to take citizens’ assets.

Chuck Sturtevant is a PhD candidate at the University of Aberdeen’s Centre for Citizenship, Civil Society and Rule of Law. He writes about political anthropology in the Amazonian lowlands of Bolivia. His recent published work includes “Habilito: Debt for Life.”

Featured image: Ken M/ Flicker (CC BY 2.0)

Cite as: Sturtevant, Chuck. 2018. “Double Meanings, Legal Fictions, and the Cover They Provide.” Anthropology News website, June 21, 2018. DOI: 10.1111/AN.895

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