WASHINGTON—Under civil asset forfeiture laws in the United States, police can seize your property if they can connect it, even remotely to criminal activity, with drug crime being the most common. Even if you were completely unaware of the crime, your property may be taken.
Radley Balko, a blogger and reporter for the Washington Post, has brought to the public’s attention many people whom he regards as innocent victims of civil forfeiture abuse.
On July 28th, U.S. Congressman Timothy Walberg (R-Mich.) introduced a bill aimed at reforming federal asset civil forfeiture laws. Also, last month on the Senate side, Sen. Rand Paul (R-Ky.) introduced S. 2644, the FAIR (Fifth Amendment Integrity Restoration) Act, which similarly seeks to reform the way the government seizes property suspected of being involved in criminal activity.
“When you tell [people], in America, the government can take you home, your car, your boat, without convicting or even charging you with a crime, most people cannot even believe it,” said Scott Bullock, senior attorney, who directs the Institute for Justice’s campaign against civil forfeiture. He spoke July 29, at the Heritage Foundation in Washington, D.C., on the topic, “Arresting Your Cash: How Civil Forfeiture Turns Police Into Profiteers.”
For people to get their property back once it’s been confiscated, they usually must go to court and show they legitimately earned the property. “So if it’s your cash that’s been seized, you have to find the paycheck or paystub,” Balko explained.
Sometimes the property itself is alleged to have been used in the commission of a crime, like an automobile seized for its use in a drug deal. You would have to prove that you didn’t drive the car—the so-called “innocent owner defense”—but even that may not be enough to get your property back, according Balko.
Punishing the Property
A woman’s car was subject to forfeiture and seized by police because her husband used it in the services of a prostitute, without her knowledge or consent. The U.S. Supreme Court ruled 5-4 in Bennis v. Michigan (1996) that in civil forfeiture cases, the state of Michigan was not required to provide an innocent owner’s defense, and she lost her car and was not entitled to compensation, although no one said she did anything wrong.
However, most federal and state forfeiture laws provide for an innocent owner defense, according to attorney Steven Kessler, who has written about and defended many cases regarding civil and criminal forfeiture. Nevertheless, Kessler thought the Bennis case set a bad precedent by the high court that regarded “Forfeiture had nothing to do with the owner’s culpability. The property was the offending party and, consequently, the property, not its owner, was being punished.”
The proponents of reform argue that current standards for seizing property make it too easy and tempting for government prosecutors and police to abuse their powers and cite many examples of unfair application of the law. The Fifth Amendment asserts that no person shall “be deprived of life, liberty, or property, without due process of law.” The 14th Amendment has nearly identical wording.Those who want the laws reformed say that police and prosecutors are abusing their civil property forfeiture powers with impunity. The legal environment for forfeiture cases is decidedly on the side of law enforcement and prosecutors, they say. In only six states does the government have the burden to establish that the person is guilty in order to confiscate all types of property, according to the Institute for Justice. In 38 states, the burden for all forfeitures, including one’s home, is on the owner.
In 2005, Matt Lee was driving from Michigan to the West Coast to begin a new life. His father had given him $2,500 in cash on the day he left to help him get started, as he recounted in the Silver Pinyon Journal. He kept $100 on him to add to his money for trip expenses, and put the remaining $2,400 in the trunk so he wouldn’t be tempted to use it on the way. Lee was driving on I-80 through Humboldt County, Nev., when he was pulled over by a deputy sheriff. The sheriff asked him how much money he was carrying, which was really none of his business, but Lee, who had nothing to hide told him how much and where it was. The sheriff took the money out from the trunk, and said he suspected Lee was intending to use the money to buy narcotics in California. He said he was keeping the money but Lee could continue on. Lee was not arrested. In the middle of a desert, Lee had no alternative but to drive on to California.
Three years later, Lee finally got his money returned because of a lawsuit filed against the county by another person who had also been fleeced. The latter’s attorney wouldn’t settle unless Lee also got his money back.
“In 2012, an astounding $657 million was paid out to state and local law enforcement for handling forfeiture cases,” said Andrew Kloster of the Heritage Foundation, who played host at the forum.
Congressman Walberg gave several instances of the questionable use of moneys collected from civil asset forfeiture:
“In Fulton County, Ga., football tickets for the district attorney’s office; in Webb County, Texas, $20,000 for TV commercials for the district attorney’s re-election campaign; in Kimble County, Texas, $14,000 for a training seminar in Hawaii for the staff of the district attorney’s office; in Albany, N.Y., over $16,000 for food, gifts, and entertainment for the police department.”
The proponents of reform say that the problem with asset forfeiture is the incentives it sets up for the police and/or prosecutors.
At the forum, Balko gave an example of narcotics task forces monitoring the East-West Interstate highway through Nashville, Tenn., which serves as a kind of drug corridor. Investigative reporters from the local television station discovered that police were pulling over suspected drug couriers at a 3 to 1 ratio as they were leaving Nashville compared to coming into Nashville. The reason is, said Balko: “A car full of drugs coming into a city is of no use to the task force in terms of generating revenue for them; a car leaving a city is much more likely to be full of cash than drugs. They were setting up their traps … on the west side of the city not on the east side where the drugs would be coming in.”
“Even if you support the drug war, forfeiture sets up some really perverse incentives for police officers to wait until the drugs are sold before they make their bust,” Balko said.
[color=blue]Balko said the instances of perverse incentives from the forfeiture law are well illustrated in Kansas and Indiana, as these states allow district attorneys to contract out to private law firms to handle civil and criminal property forfeiture cases. In Indiana, there were firms making millions of dollars off of these cases, and it’s still going on, Balko said.
In Kansas, Balko discussed one case that he felt illustrated an egregious conflict of interest. In a sparsely rural county, the position of district attorney (DA) is part-time. The DA also had a private law practice, and he contracted out forfeiture cases to his own practice. He got a cut whenever a case went to court. “He then proceeded to prosecute on the criminal side and civil side of these cases.”
Balko said he wasn’t accusing the individual of wrongdoing, but only pointing out the existence of a strong incentive for the DA to cut a deal on the criminal side in exchange for the accused giving up large percentages of their properties to his law firm.
Many states have recognized these problems and have passed legislation to address them, such as requiring forfeiture income go to a state school fund. The forum speakers were concerned about a way used increasingly that circumvents state reform forfeiture laws.
Federal forfeiture law allows what is called “equitable sharing,” whereby a state law enforcement agency may enter into such an agreement with a federal agency and then the forfeiture process is governed by federal law. The feds take 10 to 20 percent and give the rest back to a state law enforcement agency, even when the agency would receive none of the proceeds from state forfeitures.
Walberg said his bill, H.R. 5212, the Civil Asset Forfeiture Reform Act of 2014, would “raise the level of proof necessary for government to seize property.” He said it would place the burden of proof on the government to show the property owner had knowledge of the criminal activity. His bill seeks to restrict the use of equitable sharing agreements between the Department of Justice and local or state law enforcement.
*Image of woman being pulled over by police via Shutterstock