Civil asset forfeiture: Highway robbery – by the police

Civil asset forfeiture: Highway robbery – by the police

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The chief's getting a new Lamborghini / Photo: Richard Masoner, used under Flickr Creative Commons license
The chief's getting a new Lamborghini / Photo: Richard Masoner, used under Flickr Creative Commons license

WASHINGTON, September 25, 2014 — Under current law, government can take your car and everything in it, including cash, tools and electronics, even if you are not charged with any crime. Getting your property back can take many months and cost thousands of dollars in legal fees.

A three-part series in the Washington Post in September showed that law enforcement officers deploy their extraordinary power across the country, too often against innocent people, with the assistance and encouragement of the federal government.

According to a Post editorial:

Civil forfeiture policies are in place to combat drug rings and other organized crime.  If law enforcement officials believe that property — cars, homes or, especially, cash — is connected to criminal activity, they can take it. But officers’ pretexts can be shockingly thin: cars that have tinted windows, cars that are too clean, cars that are too dirty, drivers who are too nervous, the presence of energy drinks and so forth. Rightful owners have to hire lawyers and prove that the cash came from legitimate savings and not from drug smuggling. That takes time and often comes in the form of a settlement in which victims must promise not to sue.

After the terror attacks on Sept. 11, 2001, the federal government called on the police to become the eyes and ears of homeland security on the nation’s highways. The Department of Homeland Security spent millions on police training. The result has been the seizure of hundreds of millions of dollars in cash from motorists and others not charged with crimes.

Cash seizures can be made under state or federal civil law. The Justice Department has a civil asset forfeiture program known as Equitable Sharing. Asset forfeiture allows the government to take cash and property without pressing criminal charges and then requires the owners to prove their possessions were legally acquired. Our traditional belief that an individual is innocent until proven guilty no longer seems to be in force.

Those laws were meant to take a guy out for selling $1 million in cocaine or who was trying to launder large amounts of money. … It was never meant for a street cop to take a few thousand dollars from a driver by the side of the road. — Mark Overton, police chief, Bal Harbour, Florida

There have been 61,998 cash seizures made on highways and elsewhere since 9/11 without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion. State and local authorities have an incentive to seize cash in this way. They have kept more than $1.7 billion of this amount while Justice, Homeland Security and other federal agencies received $800 million. Half the seizures were below $8,000.

Only a sixth of the seizures were legally challenged, in part because of the costs of legal action against the government. In 41 per cent of  cases — 4,455 — where there was a challenge, the government agreed to return the money. The appeals process took more than a year in 40 per cent of those cases and often required owners of the cash not to sue police over the seizures.

Hundreds of state and local departments and drug task forces appear to rely on seized cash, despite a federal ban on use of the money to pay salaries or otherwise support budgets. The Post found that 298 departments and 210 task forces have seized the equivelant of 20 per cent or more of their annual budgets since 2008.

In a typical case, a 55-year-old Chinese-American restaurateur from Georgia was pulled over for minor speeding on Interstate 10 in Alabama and detained for nearly two hours. He was carrying $75,000 raised from relatives to buy a Chinese restaurant in Lake Charles, Louisiana. He got back his money 10 months later, but only after spending thousands of dollars on a lawyer and losing out on the restaurant deal. Why was the government not obligated to reimburse this innocent citizen for his legal fees?

Last year, The New Yorker detailed how overzealous officials in Tenaha, Texas shook down out-of-state drivers by, among other things, threatening to take their children away from them, and then funneled the confiscated cash into officer bonuses and popcorn machines.

Two men who were heavily involved in the creation of the asset forfeiture initiative in the Justice Department in the 1980s, now call for its elimination. They are John Yoder, who was director of the Justice Department’s Asset Forfeiture Office from 1983 to 1985, and Brad Gates, who was director of the office from 1985 to 1989.

Originally meant to cut into the profit motive that fueled rampant drug trafficking by cartels and other criminal enterprises, the program slowly got out of hand.  Yoder and Gates write:

As time went on and states got into the forfeiture game, the uses became more personally rewarding for law enforcement. Law enforcement agents and prosecutors began using seized cash and property to fund their operations, supplanting general tax revenue, and this led to the most extreme abuses:  law enforcement efforts based upon what cash and property they could seize to fund themselves, rather than an even-handed effort to enforce the law … Today, the old speed traps have all too often been replaced by forfeiture traps, where local police stop cars and seize cash and property to pay for local law enforcement efforts. This is a complete corruption of the process, and it unsurprisingly has led to widespread abuses.

The Asset Forfeiture Reform Act was enacted in 2000 to rein in abuses, but almost nothing has changed. Yoder and Gates argue:

Civil forfeiture is fundamentally at odds with our judicial system and notions of fairness. It is unreformable. In America, it is often said that it is better that nine guilty people go free than one innocent person be wrongly convicted. But our forfeiture laws turn our traditional concept of guilt upside down? Civil forfeiture laws presume someone’s personal property to be tainted, placing the burden of proving it ‘innocent’ on the owner. What of the Fourth Amendment requirement that a warrant to seize or search requires the showing of probable cause or a specific violation? … The individual is the font of sovereignty in our constitutional republic, and it is unacceptable that a citizen should have to ‘prove’ anything to the government. If the government has probable cause of a violation of law, then let a warrant be issued. And if the government has proof beyond a reasonable doubt of guilt, let guilt be proclaimed by 12 peers.

When government takes away a portion of our freedom, it usually claims a good reason for doing so, most recently in the name of the continuing war on terrorism. Invading our privacy by tapping our phones and monitoring our e-mails is supposedly for our own good, to make us safer. The same is true in the case of asset forfeiture. When we are told that we should embrace this diminution of our freedom, all of us, liberals and conservatives, Republicans and Democrats, should be on guard.

In his opinion on Olmstead vs. United States (1927), Justice Louis Brandeis warned,

Experience should teach us most to be on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in the insidious encroachment of men of zeal, well meaning but without understanding.

The asset forfeiture program surely falls into this category. It is time that this program obeyed the law, with citizens considered innocent until proven guilty, and their Fourth Amendment rights protected. When it comes to confiscated property, the burden of proof should be upon those doing the confiscating. And if citizens are deprived of their property without any legal basis, they should be reimbursed for any legal fees incurred in getting their property back. This is only fair, but fairness seems to have been absent from this program in recent years.


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Allan C. Brownfeld
Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.