WASHINGTON, November 29, 2015 — Civil forfeiture laws allow police in just about every state to take citizens’ property, including cash, cars, electronics, even houses, without due process, simply by stating they believe the taken property was somehow involved in a criminal activity.
Property can be legally taken without any charges being placed, without an arrest, without a criminal indictment and without any evidence at all that a crime has occurred.
Last year was seminal. Police took more assets (in absolute dollar value) using forfeiture laws than was lost by Americans in burglaries. Police seized more than $4.5 billion property from Americans in 2014. For the same year, burglary losses were $3.9 billion.
A large majority of Americans remain unaware of this outrageous situation. For the victims, it is truly a nightmare.
In 2013, a police officer stopped an 81-year-old man in Nevada for a minor traffic violation. They asked him if he had any illegal substances or large amounts of currency. He answered “No.” nonetheless, the cops’ drug-sniffing dog allegedly alerted the police that there were drugs in the vehicle. A search by the officers revealed no drugs, but $8,400 in cash. The cop took the money, suggesting it was drug-related.
Most often, police keep the money. One police unit used money seized to buy a margarita machine for its office (similar to a Slurpee machine seen at 7-11 stores). In Oklahoma, part of the money seized was used by a district attorney to make payments on his student loans.
Bloomberg news has investigated this disconcerting phenomenon. Their report concluded: “Stop-and-Seize” authority is turning the police into self-funding gangs.
This is all too true, unfortunately, and not funny at all. Nonetheless, see comedian John Oliver’s interesting take on this issue as it was aired on his HBO show “Last Week Tonight”:
Civil forfeiture laws were originally designed as a tool to prevent criminals from profiting from their crimes. Conceptually, it was believed that in the course of an investigation or an arrest, police could take property if they believed the property was connected to, or was itself the “ill gotten gains” from criminal activity.
For example, a drug kingpin’s cash would be seized to prevent him from enjoying it when he got out of jail. Or a thief steals your television. Then, the police catch the thief, recover your television, and return it to you.
A law designed to give cops the right to confiscate and keep luxury possessions of major drug dealers mostly ensnares modest homes, cars and hard-earned cash of ordinary, law-abiding people. This was not the way it was supposed to work. U.S. Rep. John Conyers (D-Mich).
In fairness, these forfeiture laws have had a serious impact on illegal drug organizations. They have thwarted criminals. They have enabled the return of billions of dollars in value of stolen items to victims. But they have also lavished untold billions into the pockets of police and prosecutor’s offices.
During an investigative hearing, one police officer admitted his office took “things wanted, that we couldn’t otherwise buy, like presents.”
In the early 1980s, most states did not have forfeiture laws. As part of the war on drugs, the federal government enacted a “federal adoption” law that allowed local and state police to seize property under state laws and then apply for federal “adoption,” so that the forfeiture would occur under federal law. The program allowed local law enforcement agencies to share in the proceeds with federal agencies. Excessive abuse became common.
Prior to leaving office, former U.S. Attorney General Eric Holder prohibited local and state policy from using federal forfeiture law to seize personal property or cash without warrants or without issuing criminal charges, save when federal government authorities were involved directly in a given case.
Additionally, federal agencies can no longer accept, or “adopt” assets seized by local or state police, unless the property includes firearms, ammunitions, explosives, child-pornography or other materials concerning public safety.
Nevada police twice stopped Straughan Gorman, who was driving an RV at the time. During the first stop, the cop did not have a drug dog available and Gorman would not consent to a search. The cop then contacted a colleague further down the road who did have a dog, and asked him to look out for Gorman. The dog allegedly “alerted” the second officer that there were drugsin Gorman’s RV. Of course, there were not.
Nevertheless, the cops seized $167,000 in cash. Gorman sued, and a federal judge ruled in his favor, citing that the government had failed to demonstrate any connection between the money and drugs and that they had violated his Fourth Amendment rights. The judge further dinged the prosecutors for arguing that the two traffic stops were unrelated. The government has appealed the decision and is still holding Gorman’s money.
Another example: A new college student traveling from Chicago to Los Angeles was stopped and all of the money he had saved to begin school was taken. The police warrant said traveling from Chicago to LA was inherently suspicious.
While citizens have the right to go to court to complain, it often costs more to do so than it is worth. Police often take as little as $100.
A Philadelphia couple living next door to a known drug dealer was surprised when police entered their home after a conducting a raid on the drug dealer. They had no connection to the dealer. But police took $3,500 from them anyway. After 18 months and five court appearances, the woman’s money was returned to her. But the man, having moved away and unable to get to court, lost his money.
Most states allow police to proceed under the assumption that money, vehicles and houses are “guilty,” even if the property owners are innocent.In the challenge process, the property owner’s property “is guilty until proven innocent.” To recover property wrongfully taken, the property owner must show that the property is lawfully his, and he must rebut the government’s claims of illegality.
An ex-stripper successfully retrieved more than $1 million taken from her by proving she had made the money from lawful activities, specifically by stripping, and not drug dealing, as the police had alleged.
A poll conducted by the Huffington Post not surprisingly found that 71 percent of Americans oppose civil asset forfeiture. The publication commented: “too bad their representatives don’t care.”
Among the states currently, New Mexico stands alone, having recently passed a law eliminating civil asset forfeiture. Montana recently introduced a law allowing forfeiture of property, but only if the property owner is convicted of a crime. California legislators attempted to pass a conviction requirement as well, but a unified effort by law enforcement agencies helped defeat the effort.
On the other hand, Michigan’s new forfeiture law makes it an iota more difficult, and thus almost meaningless, to assess the legality of seizures. They now require “clear and convincing” evidence to be shown by police, rather than “a preponderance of the evidence” before allowing police to seize citizens’ assets.
A Texas legislator’s efforts to reform the state’s seizure law was killed because a committee chairman refused to move the proposed law forward until more concessions were made to law enforcement interests.
Virginia’s attempt to add a conviction requirement was also killed in committee. The effort had garnered almost 100 percent support from other legislators, but failed because the state’s Crime Commission claimed it needed more time to examine the issue.
Wyoming’s governor killed a proposed reform bill claiming seizing property without securing convictions was “important” and “right.”
Despite nearly unanimous support in many state legislatures, those at the top of the food chain seemingly remain more interested in appeasing law enforcement agencies and prosecutors than in instituting needed reforms.
Perhaps unsurprisingly, the pushback is more fervent in states (most of them) where law enforcement agencies complain about budgetary shortfalls. If they cannot take your property, the reason, they won’t have enough money to buy the things they want or to offset the cost of their seizure efforts.
Happy travels, America.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.