Civil forfeiture in the United States
Civil forfeiture in the United States, sometimes called civil judicial forfeiture, is a controversial legal process in which law enforcement officers take assets from persons suspected of involvement with crime or illegal activity without necessarily charging the owners with wrongdoing. While civil procedure, as opposed to criminal procedure, generally involves a dispute between two private citizens, civil forfeiture involves a dispute between law enforcement and property such as a gold crucifix, a pile of cash, a house or a boat, such that the thing is suspected of being involved in a crime. To get back the seized property, owners must prove it was not involved in criminal activity. Sometimes it can mean a threat to seize property as well as the act of seizure itself.
Proponents see civil forfeiture as a powerful tool to thwart criminal organizations involved in the illegal drug trade, with $12 billion annual profits, since it allows authorities to seize cash and other assets resulting from narcotics trafficking. Proponents argue that it is an efficient method since it allows law enforcement agencies to use these seized proceeds to further battle illegal activity, that is, directly converting bad things to good purposes by harming criminals economically while helping law enforcement financially. Critics complain that innocent owners become entangled in the process such that their right to property is violated, with few legal protections and due process rules to protect them in situations where they are presumed guilty instead of being presumed innocent. Further, critics argue that the incentives lead to corruption and law enforcement misbehavior. There is consensus that abuses have happened but disagreement about their extent as well as whether the overall benefits to society are worth the cost of the instances of abuse.
METHODS — Apply force then take’em to court to keep their $$$
The government simply files a civil action against the property itself, and then generally must prove, by a preponderance of the evidence, that the property is forfeitable under the applicable forfeiture statute. Civil forfeiture is independent of any criminal case, and because of this, the forfeiture action may be filed before indictment, after indictment, or even if there is no indictment. Likewise, civil forfeiture may be sought in cases in which the owner is criminally acquitted of the underlying crimes…
—Craig Gaumer, Assistant United States Attorney, 2007
Properties which can be confiscated include real estate property such as a house or motel, cars, cash, jewelry, boats, and almost anything suspected of being related to the manufacture and sale and transportation of illegal controlled substances, such as:
raw materials needed to make them
containers to hold them
vehicles to transport them
information for manufacture and distribution, such as books, records, and formulas
money and other valuables “used or intended to be used” to buy or sell them
property facilitating illegal transactions
chemicals needed to make them
machines for making capsules and tablets
A motorist stopped by police in Tennessee.
One method of intercepting funds is by highway interdictions, typically along highway routes suspected to be used regularly by drug smugglers, often between Mexico and the United States. Police stops often target out-of-state drivers who are using rental cars, often not issuing traffic tickets, disproportionately pulling over African Americans and Latino-Americans.
There have been numerous examples in the media.
Mandrel Stuart was not charged with a crime and there was no evidence of illegal activity but police seized his money because they assumed it was drug-related:
Mandrel Stuart and his girlfriend were on a date driving on Interstate 66 … The traffic stop on that balmy afternoon in August 2012 was the beginning of a dizzying encounter that would leave Stuart shaken and wondering whether he had been singled out because he was black and had a police record. Over the next two hours, he would be detained without charges, handcuffed and taken to a nearby police station … stripped of $17,550 in cash … earned through … a small barbecue restaurant … he was going to use the money that night for supplies and equipment.
—report in the Washington Post, 2014
From 2006 to 2008, currency deposits alone exceeded $1 billion for each year. Source: the Institute for Justice
Javier Gonzalez was carrying $10,000 cash in a briefcase and got pulled over in Texas; deputies handed Gonzalez a waiver, that if he signed over the money and did not claim it later, he would not be arrested, but if he refused to sign the waiver, Gonzalez would be arrested for money-laundering. Gonzalez signed the waiver wondering if the officers were real “officers of law” and wondering if he got robbed, but later sued the county, which lost, and returned his cash plus paid him $110,000 in damages plus attorney’s fees.
Matt Lee of Clare, Michigan was driving to California with $2,500 cash when pulled over by police in Nevada, who seized almost all of the cash under suspicion that it was a “drug run”; Lee hired an attorney who took half of his fee, leaving Lee with only $1130 remaining.
I just couldn’t believe that police could do that to anyone … It’s like they are at war with innocent people.
—Matt Lee, interviewed in the Washington Post, 2013
Tan Nguyen. In 2008, a federal judge ordered $20,000 returned to a man after police seized the money during a traffic stop in Nebraska, after reviewing a recording of the seizure in which a sheriff’s deputy suggested that we “take his money and, um, count it as a drug seizure.” Tan Nguyen’s $50,000 was confiscated by police during a traffic stop, and the county agreed to return the funds after a legal challenge.
Civil forfeiture case US District Court Nebraska.
In May 2010 a couple was driving from New York to Florida and they were stopped by police because of a cracked windshield. During questioning, the officer decided that $32,000 cash in the van was “probably involved in criminal or drug-related activity”, seized it, shared it with federal authorities under equitable sharing. The victim hired a lawyer to get back the seized money who urged settling for half of the seized amount, and after the lawyer’s fees, the victim only got back $7,000.
Police sometimes ask stopped motorists to sign “roadside property waivers” which, unless signed, threaten criminal charges unless valuables are handed over; the waivers say, in effect, that victims will not contest the seizure in exchange for not being arrested. If a passing motorist does not sign a waiver and it becomes recorded as a legal case, the case names are often unusual. In a civil forfeiture case, the asset itself is listed as the “defendant”. For example, one case was titled State of Texas v. One Gold Crucifix, based on a traffic stop in which a woman was pulled over, no charges were filed, but this item of jewelry was seized. Another case name was United States v. $35,651.11 in U.S. Currency.
The Washington Post analyzed 400 seizures in 17 states which were examples of equitable sharing arrangements. Police stop motorists under the pretext of a minor traffic infraction, and “analyze” the intentions of motorists by assessing nervousness, and request permission to search the vehicle without a warrant; however, of the 400 seizures studied by the Washington Post, police did not make any arrests.
Other cash seizures
Cash has been seized in peculiar circumstances. For example, New York businessman James Lieto’s $392,000 in cash was seized by federal authorities, since his legitimate funds mixed up with illegal funds in an armored car which was seized by an FBI probe. Lieto had to wait until the government’s criminal case was finished before he could get his money back, which took considerable time, and caused considerable financial hardship and stress.
Police have broken into homes. In March 2012, in the middle of the night, without a warrant, New York City police burst into the home of Gerald Bryan, ransacked his belongings, ripped out light fixtures, arrested him, and seized $4,800 of his cash, but after a year, the case against him was dropped. When Bryan tried to get back his money, he was told it was “too late” since the money had already been put into the police pension fund. Victims of forfeiture often find themselves faced with fighting in a “labyrinthine” procedure to get their money back.
In May, 2013, IRS agents seized $32,821 from the account of a restaurant owner in Arnolds Park, Iowa, on suspicion of tax evasion, but the seizure was contested by lawyers from the Institute for Justice.
The IRS is increasingly taking money from legitimate businesspeople who … run an honest cash business and make frequent cash deposits … The government doesn’t allege that she evaded taxes. The government doesn’t allege that she was depositing money from an illicit source. She’s simply depositing her own lawfully-earned money … that she gets from customers in her restaurant…
—Institute for Justice attorney Larry Salzman, 2014
Seizures of real estate
Prosecutors threatened to seize a motel, similar to this one owned by the Caswell family, when there was illegal drug use on the premises.
Police can seize not only cash from cars but real estate such as a person’s home. For example, homes have been seized even if it was somebody other than the homeowner on the premises who committed drug crimes without the owner’s awareness. If the IRS suspects that property is involved with crime, or has been produced as a result of crime, then it has a pretext with which to seize it. From 2010 to 2013, two motel owners were under constant threat of their property being seized after there were incidents of drug selling on the motel premises. A judge ruled in 2013 that the owners could keep their motel since the owners did not know about the illegal activity and took all reasonable steps to prevent it.
“I’d like to see this law done away with, or heavily modified … This law, where you are presumed guilty and have to prove yourself innocent, is completely backward from any other law I’ve ever heard of. It’s hard to believe the government has that kind of power. It’s ridiculous. Prosecutors abuse it, and the average person can’t afford to fight it.”
—Russell Caswell, motel owner, 2013
Police seized a house on the pretext that it was being used for selling drugs, after a couple’s son was arrested for selling $40 worth of illegal drugs. In another case, homeowners Carl and Mary Shelden sold their house to a man who was later convicted of fraud, but because of the real estate transaction, the Sheldens got caught up in a 10-year legal battle that left them “virtually bankrupt”; after years, they finally got back their house but it was in badly damaged condition; the Sheldens did nothing wrong.
Seizures of vehicles
A Rolls Royce car similar to this one was seized by police and used for personal purposes.
In Detroit, men suspected of hiring prostitutes had their automobiles seized. A sheriff in the south used a seized Rolls Royce car for personal purposes. An owner’s sailboat was taken after he was caught with a negligible amount of marijuana.
Seizures of firearms
Four states (California, Connecticut, Indiana and New York) have statutes that allow law enforcement officials to seize a person’s firearms without a warrant or court order if there is probable cause the individual is mentally unstable or may use the weapons to commit a crime. The weapons are to be held in the custody of the law enforcement agency until the case against the individual is dispositioned in a court of law; or the weapons must be returned to the owner if no criminal charges are filed within the timeframe specified by law. In practice, some law enforcement agencies in these states have been known to either sell or destroy seized firearms without compensating the owner after the legal matter that led to the initial seizure has been settled.
Seizures of funds in a bank account
The government can seize money directly from a bank account. One way this happens is when there are large numbers of cash deposits which government investigators suspect are done as a way to avoid deposits which exceed $10,000, since deposits greater than that amount must be reported to the federal government. But it can happen that legitimate businesses have regular large deposits of cash. In one instance, the Internal Revenue Service waited for large deposits to be placed into an owner’s bank account, and then forced the bank by legal means to surrender it to the agency by means of a secret warrant; authorities took $135,000 from Michigan restaurant owners, named the Cheung family, who made cash deposits from their Chinese restaurant. In another instance, a businessman in New Jersey made repeated cash deposits to save for purchasing a house; each payment was below the $10,000 threshold for reporting to the government, but there were 21 deposits over a period of four months, which caused government to suspect that criminal activity was involved; as a result, the IRS seized $157,000 and the businessman was forced to hire an attorney to get his funds returned. Officials seized $35,000 from the bank account of a grocery store “without any warning or explanation” in 2013.
After police and authorities have possession of cash or other seized property, there are two ways in which the seized assets become permanently theirs: first, if a prosecutor can prove that seized assets were connected to criminal activity in a courtroom, or second, if nobody tries to claim the seized assets. What happens in many instances is that the assets revert to police ownership by default. If a victim challenges the seizure, prosecutors sometimes offer to return half of the seized funds as part of a deal in exchange for not suing. Sometimes police, challenged by lawyers or by victims, volunteer to return all of the money provided that the victim promises not to sue police or prosecutors; according to the Washington Post, many victims sign simply to get some or all of their money back. Victims often have “long legal struggles to get their money back”. One estimate was that only one percent of federally taken property is ever returned to their former owners.
Statistical evidence suggests a strong upward trend in recent years towards greater seizure activity. In 1986, the Department of Justice’s Asset Forfeiture Fund took in $93.7 million; in 2008, it took in $1 billion. Much of this growth happened in the past decade; one analysis suggested that seizures have grown 600 percent from 2002 to 2012. From 2005 to 2010, government seizures of assets from both criminals as well as innocent citizens went from $1.25 billion to $2.50 billion. Federal authorities seized over $4 billion in 2013 through forfeiture, with some of the money being taken from innocent victims. In 2010, there were 15,000 cases of forfeitures. Over 12 years, agencies have taken $20 billion in cash, securities, other property from drug bosses and Wall Street tycoons as well as “ordinary Americans who have not committed crimes.” One estimate was that in 85% of civil forfeiture instances, the property owner was never charged with a crime. In 2010, there were 11,000 forfeiture cases which were noncriminal. In 2010, claimants challenged 1,800 civil forfeiture seizures in federal court.
Standards of proof in state forfeiture laws
Source: Institute for Justice
Note: “9” means most protection for citizens
State Standard Rank
Alabama Prima facie/Probable cause 1
Alaska Prima facie/Probable cause 1
Delaware Prima facie/Probable cause 1
Illinois Prima facie/Probable cause 1
Massachusetts Prima facie/Probable cause 1
Missouri Prima facie/Probable cause 1
Rhode Island Prima facie/Probable cause 1
South Carolina Prima facie/Probable cause 1
Wyoming Prima facie/Probable cause 1
Georgia Probable cause/Preponderance 2
North Dakota Probable cause/Preponderance 2
South Dakota Probable cause/Preponderance 2
Washington Probable cause/Preponderance 2
Arizona Preponderance 3
Arkansas Preponderance 3
Hawaii Preponderance 3
Idaho Preponderance 3
Indiana Preponderance 3
Iowa Preponderance 3
Kansas Preponderance 3
Louisiana Preponderance 3
Maine Preponderance 3
Maryland Preponderance 3
Michigan Preponderance 3
Mississippi Preponderance 3
New Hampshire Preponderance 3
New Jersey Preponderance 3
Oklahoma Preponderance 3
Pennsylvania Preponderance 3
Tennessee Preponderance 3
Texas Preponderance 3
Virginia Preponderance 3
West Virginia Preponderance 3
Clear & convincing 4
New York Preponderance
Clear & convincing 4
Clear & convincing 4
Colorado Clear & convincing 5
Connecticut Clear & convincing 5
Florida Clear & convincing 5
Minnesota Clear & convincing 5
Nevada Clear & convincing 5
Ohio Clear & convincing 5
Utah Clear & convincing 5
Vermont Clear & convincing 5
California Clear & convincing
Beyond a reasonable doubt 6
Nebraska Beyond a reasonable doubt 7
North Carolina Beyond a reasonable doubt 7
Wisconsin Beyond a reasonable doubt 7
Montana Criminal conviction
required before seizure 8
New Mexico Abolished 9
Civil forfeiture varies greatly state by state. An analysis by Sarah Stillman in The New Yorker suggested that states that place seized funds in neutral accounts, such as Maine, Missouri (which puts seized funds in accounts for public education), North Dakota, and Vermont, have been much less likely to have major scandals involving forfeiture abuse. States like Texas and Virginia and Georgia which have few restrictions on how police use the seized funds have had more scandals, as well as states which allow the Equitable sharing program. With Equitable Sharing, state police can “skirt state restrictions on the use of funds“, according to Stillman. In Florida, using Equitable Sharing, the small village of Bal Harbour raked in almost $50 million in three years by its vice squad. Only in Nebraska and Wisconsin does the civil forfeiture standard of beyond a reasonable doubt happen.
Florida. Allows Equitable sharing between state and federal agencies.
Georgia. There are few restrictions on how police use seized assets. Georgia investigators found more than $700,000 in “questionable expenses” by Camden County’s sheriff between 2004 and 2008, including a $90,000 Dodge car and a $79,000 boat.
Maine Seized funds go into neutral accounts.
Maryland. In Maryland, police forfeitures were $6 million in 2012 and $2.8 million in 2013.
Minnesota. Minnesota passed a law in 2014 which forbids authorities from confiscating property unless they have been convicted of a crime or plead guilty to committing it.
Missouri Seized funds go into accounts earmarked for public education.
Montana In June 2015, governor Steve Bullock signed a law requiring authorities to first get a criminal conviction before seizing property through civil forfeiture.
Nebraska State civil forfeiture standard is beyond a reasonable doubt.
Nevada. There were allegations that Nevada police unlawfully took tens of thousands of dollars from motorists.
New Mexico Government took $800,000 from a used car dealer in Albuquerque, New Mexico, and held his money for many months before giving it back, but the seizure had an adverse effect on his business and on the owner’s health. In 2015, New Mexico Governor Susana Martinez signed a bill into law making Civil Forfeiture illegal in New Mexico.
New York New York City ransacked a home, seized cash, but it was later returned.
North Carolina. Abolished civil forfeiture almost entirely.
North Dakota Seized funds go into neutral accounts.
Pennsylvania. In Philadelphia, it is often the homes of African-Americans and Hispanics who are targeted by civil forfeiture abuses; what happens in many instances is that a child or grandchild who doesn’t own the home is nabbed on a drug-related offense, and police use this as a pretext to seize the entire home. In Philadelphia, authorities made thousands of “small-dollar seizures”; in 2010, the city filed 8,000 forfeiture cases which amounted to $550 for the average take. From 2002 to 2012, Philadelphia seized $64 million by means of its forfeiture program, a total which was more than that seized by Brooklyn and Los Angeles combined.
Texas. In Texas, in Jim Wells County, authorities seized more than $1.5 million during a four-year period mostly off of U.S. Route 281, described as a “prime smuggling route for drugs going north and money coming south.” Seized cash is a third of the budget of the sheriff’s department, allowing it to buy more equipment, high-powered rifles, and police vehicles. There are few restrictions on how police use seized funds. In some counties in Texas, 40% of police revenue comes from forfeitures. Texas, with many smuggling corridors to Mexico, and police seized $125 million in 2007.
Vermont Seized funds go into neutral accounts.
Virginia. Few restrictions on how police use seized assets.
Washington, D.C.. Victims seeking to get their seized property back in Washington, D.C. may be charged up to $2500 for the right to challenge a police seizure in court, and it can take months or years for a decision to finally happen.
Wisconsin State civil forfeiture standard is beyond a reasonable doubt.
FBI Special agent Douglas Leff argues that civil forfeiture is a necessary tool for law enforcement to combat money laundering by criminal operatives.
Proponents argue that civil forfeiture tactics are necessary to help police fight serious crime. It is seen as a vital and powerful weapon in the continuing battle against illegal drugs, and effective at discouraging criminal activity. It makes it easier for law enforcement to fight organized crime when they had trouble imprisoning offenders, since they could deprive them of their property and income when it is much harder to prove their guilt in a court of law.
Prosecutors choose civil forfeiture not because of the standard of proof, but because it is often the only way to confiscate the instrumentalities of crime. The alternative, criminal forfeiture, requires a criminal trial and a conviction. Without civil forfeiture, we could not confiscate the assets of drug cartels whose leaders remain beyond the reach of United States extradition laws and who cannot be brought to trial. Moreover, criminal forfeiture reaches only a defendant’s own property. Without civil forfeiture, an airplane used to smuggle drugs could not be seized, even if the pilot was arrested, because the pilot invariably is not the owner of the plane. Nor could law enforcement agencies confiscate cash carried by a drug courier who doesn’t own it, or a building turned into a “crack house” by tenants with the knowing approval of the landlord.
—GERALD E. MCDOWELL Chief, Asset Forfeiture & Money Laundering Section, Dept. of Justice, 1996, writing in the New York Times
The head of the asset forfeiture section of the Department of Justice said that civil forfeiture of cash from innocents was insignificant compared to the “thousands of traffic stops” which bust major drug money couriers.
What’s troubling to you? That a drug trafficker who’s bringing money from the U.S. to Mexico, who’s carrying hundreds of thousands of millions of dollars in cash in their pickup truck, who just sold dope and crack and cocaine to children in your playgrounds, and his money is being taken away? That troubles you?
—Richard Weber, US Justice Department, 2008
Police used civil forfeiture laws to help return swindled funds to their owners.
Civil forfeiture has been used to restore money stolen by fraud and other schemes by corrupt politicians. Civil forfeiture targets cybercrime, fraud and scams in high finance at Wall Street, and money-laundering on a global scale. It enables police to have sufficient power to “return money to crime victims” in instances of swindling or fraud. Civil forfeiture laws were helpful in enabling authorities to seize and return swindled funds by the Bernard Madoff fraud.
Proponents argue that government has sufficient safeguards in place so that individuals can challenge seizures if the need arises. Justice William H. Rehnquist said in a Supreme Court decision that federal forfeiture in drug-related cases was not a punishment but served nonpunitive purposes such as encouraging people to be careful that their property was not used illegally. A lobbyist for the Maryland State Police named Thomas Williams argued that bills to require police to keep better records of seized property would cost law enforcement more time and money, and that trying to track seizures by multi-agency task forces would not be easy. Proponents say that when claimants contest the seizures, they rarely win back their money, suggesting that the “system is working properly.” Proponents say the system is monitored to make sure seizures are properly done. In addition, the funds enable police forces to equip themselves further for more effective crime prevention; for example, a $3.8 million drug bust let officers equip their cars with $1,700 video cameras and heat-sensing equipment for a seven-member force.
Critics include citizens, defense attorneys, advocates for civil rights. They point to serious instances of abuse in which innocent owners have been victimized. Critics are from both sides of the political spectrum, from left-leaning groups such as the American Civil Liberties Union and right-leaning groups such as the Heritage Foundation. The main criticisms of civil forfeiture proceedings are as follows:
Flawed judicial process. Critics suggest that civil forfeitures are mostly “devoid of due process”. Arguments have been made that the seizures violate the due process clause of the constitution since owners have few means to challenge the seizures. They see some seizures as assaults against individual rights. Critics argue that criminals are treated better in the courts than innocent owners who have property seized, since criminals are often told they have a right to an attorney, and that the beyond a reasonable doubt standard of proof is much higher in criminal trials than in civil trials. Burden of proof is shifted to victims to prove innocence. Victims of civil forfeiture are considered guilty until proven innocent, thereby turning the principle of innocent until proven guilty on its head. Because it is part of the civil justice system, there are no attorneys provided for defendants as can happen in some criminal trials; people who can not afford an attorney have slim chances of recovering their property. Most cases are never heard by a jury or judge since victims are unable to fight the seizures by hiring a lawyer. In contrast to principles of open justice, seizures are often done through sealed documents with a lack of transparency. Clinical law professor Louis Rulli of the University of Pennsylvania said that a piece of property does not have the same rights as a human: no right to an attorney, no presumption of innocence.
Excessive punishment. Justice John Paul Stevens said in a single dissenting vote in 1996 that civil forfeiture of a house, in which marijuana had been illegally processed, was an example of an excessive fine, and a violation of the Eighth Amendment, although the majority of the court disagreed.
Critics contend that the lure of cash tempts police towards subverting the rules for personal gain.
Motivates police misbehavior. Critics contend that the system is set up in a way as to incentivize “perverse behavior” by “predatory government agencies”. It makes it possible for government officials to seize property such as cash, vehicles, houses, jewelry from people without ever convicting them for wrongdoing in a court or even charging them with a crime. The cash and assets are a major temptation for police to presume that activity is illegal. Critics say the huge amount of money involved have a distorting effect on police, such that they are more interested in seizing cash rather than illegal drugs. Seized assets can be used for police office expenses, new equipment, vehicles. The profit motive, in which police can keep 90% or more of profits, “forms the rotten core of forfeiture abuse.” Prosecutors and police have a strong incentive to seize property since the funds can be used to pay expenses of the District Attorney’s office, including salaries. Over a ten-year period, the forfeiture money collected was $25 million in Philadelphia, with seized funds being used to pay salaries for people working in the District Attorney’s office. When funds are returned to the victim, it can happen that the funds come out of taxpayer money, not out of police funds such as a pension fund. Seized amounts of money have gone for new police equipment, parties, travel expenses, training seminars, sometimes held in distant locations such as Las Vegas or Hawaii. A Texas prosecutor used $25,000 in seized cash to take his office staff including spouses and a judge on a vacation to Hawaii. There are no penalties for wrongful seizures, particularly when taxpayers pay when ill-gotten gains from innocent citizens must be returned, so there is an incentive to “find” a drug-related issue when police come across cash. The incentives work against police seizing drugs but push them to seize cash instead:
“If a cop stops a car going north with a trunk full of cocaine, that makes great press coverage, makes a great photo. Then they destroy the cocaine… If they catch ’em going south with a suitcase full of cash, the police department just paid for its budget for the year.”
—Jack Fishman, former IRS agent, criminal defense attorney, 2008
Innocent owners ensnared. Critics argue that innocent owners suffer emotionally and financially.
Difficult to challenge seizures. The process forces property owners with limited financial abilities to have to hire attorneys and take time and money simply to “prove their innocence.” Victims must actively fight to recover their seized property; if they do nothing, or wait, then they will lose everything. If victims do not seek help from sympathetic lawyers such as those of the Institute for Justice, they can sometimes be offered to have a fraction of their property returned as part of a deal; critics have described the IRS as “bullies” practicing “extortion” against innocent citizens. Procedures to get money back are often fraught with difficulty. Retrieving seized property can be a “bureaucratic nightmare” where victims meet not with a judge or jury but with a prosecutor.
Arbitrary punishments. Critics suggest that civil forfeitures can be arbitrary, varying significantly from one case to another; for example, Alan Finder in the New York Times wondered whether it was “fair that one driver loses a car worth $45,000 and another loses one worth $700?”, if each situation resulted from drunk driving arrests.
Unfairly targets poor and politically weak persons. Many victims of civil forfeiture are “poor and politically weak” and unable to mount a sustained battle in the courts to get their property returned.
Subverts state law. Local and state police often cooperate with federal authorities in what has been called equitable sharing agreements. Since many states have laws restricting or limiting civil forfeitures, as well as requiring higher standards of proof before property can be taken, local police can sidestep these rules by treating the suspected criminal activity as a federal crime, and bringing in federal authorities. As a result, after the seizure, local and federal agencies divvy up the “loot” with 10% to 20% of it going to the federal agency and the remainder to the local police force. Accordingly, equitable sharing “effectively subverts the will and intent of the state legislatures” and has been criticized by prominent civil rights attorney and property rights advocate Scott Bullock as being a “complete violation” of the principle of federalism.
Extent of abuse. Proponents and critics differ about the extent of cases in which innocent persons had their property seized. Proponents argue that the cases are few in number, while critics contend that many instances of abuse happen without awareness by the public as a result of the signing of waivers, victims not challenging seizures for lack of knowledge, and other reasons related to a general lack of judicial transparency. The Baltimore Sun made reports that in 2012, half of victims with seized assets were not convicted of a crime.
Efforts at reform
Comedian John Oliver did a sixteen minute segment on his show Last Week Tonight in 2014 discussing civil forfeiture.
There have been numerous reports in the media about systemic abuse of civil forfeiture. USA Today described it as “an increasingly common—and utterly outrageous—practice that can amount to legalized theft by police.” Reporter Sarah Stillman writing in the The New Yorker interviewed numerous police officers, lawyers, prosecutors, justices and plaintiffs around the United States and found that many had reservations that innocent Americans were being abused. The New Yorker published a “sprawling investigation” about how cities abuse civil forfeiture to “bolster their cash-strapped coffers by seizing the assets of the poor, often on trumped up charges.” Comedian John Oliver devoted a presentation to a satirical exposure of civil forfeiture in 2014.
Organizations working for reform, as well as helping individual victims, include the Institute for Justice, a libertarian nonprofit law firm in Washington, D.C., which works to end civil forfeiture abuse. It has helped numerous clients recover property seized by the government. The Institute of Justice is helping one forfeiture victim sue the federal district court as well as the mayor, district attorney, and police commissioner in Philadelphia. Scott Bullock, senior attorney at the Institute for Justice, advocates that civil forfeiture should be abolished except for use in enforcing maritime and customs laws, and require that any seizures be linked to criminal convictions of specific people. If that is not possible, Bullock recommends that seized revenues be placed in neutral funds such as drug treatment efforts, that standards of proof for law enforcement be raised to ensure that police provide “clear and convincing evidence” of wrongdoing, that the burden of proof should be moved to government to prove wrongdoing, that seized assets should be tracked such that information is easily accessible by the public, and that the equitable sharing arrangement be abolished. Sometimes victims turn to the American Civil Liberties Union for legal assistance in winning back their seized property.
There has been opposition to civil forfeiture in some lower courts. There have been attempts by lawmakers to introduce legislation to prevent abuses based on civil forfeiture procedures; one proposal was to raise the standard of proof necessary before property could be seized, and require government to prove that an owner of property was involved in an illegal criminal activity before such seizures could happen. There have been class action lawsuits against authorities, such as one in East Texas by black and Latino drivers; the suit alleges that police took $3 million from 2006 to 2008 in 140 separate incidents. One reform effort is to require authorities to keep better records about seized assets.
In 2015, New Mexico Governor Susana Martinez signed a bill into law making Civil Forfeiture illegal in New Mexico, making New Mexico the first state to outlaw the practice. The bill passed through both the New Mexico Senate and House with unanimous votes, and was signed into law by the Governor on April 10, 2015.
^ Jump up to: a b c d US Department of Justice (January 2013). “Types of federal forfeiture”. United States Department of Justice. Retrieved October 14, 2014. …….(Source: A Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies, U.S. Department of Justice, March 1994)
^ Jump up to: a b c d Brenda J. Buote (January 31, 2013). “Tewksbury motel owner glad to close book on seizure threat”. Boston Globe. Retrieved October 11, 2014. …Motel Caswell… free from the threat of seizure by US Attorney Carmen Ortiz…
^ Jump up to: a b c d e f g h i JOHN BURNETT (June 16, 2008). “Seized Drug Assets Pad Police Budgets”. NPR. Retrieved October 11, 2014. …Every year, about $12 billion in drug profits returns to Mexico from the world’s largest narcotics market — the United States…..
^ Jump up to: a b c d e f g h ALAN FINDER (February 24, 1999). “Drive Drunk, Lose the Car? Principle Faces a Test”. The New York Times. Retrieved October 11, 2014. …police to seize the cars of motorists arrested for drunken driving, … an ancient principle of American and British law … has generally been upheld by the Federal courts…
^ Jump up to: a b c d e f g h i j k l m n o p q r Chip Mellor (June 8, 2011). “Civil Forfeiture Laws And The Continued Assault On Private Property”. Forbes magazine. Retrieved October 11, 2014. …civil forfeiture, property owners are effectively guilty until proven innocent. ….
^ Jump up to: a b c d e f g h i j k l m n o p q r s t u v w x y z aa ab ac Sarah Stillman (August 12, 2013). “Taken: Under civil forfeiture, Americans who haven’t been charged with wrongdoing can be stripped of their cash, cars, and even homes. Is that all we’re losing?”. The New Yorker. Retrieved October 11, 2014.
^ Jump up to: a b c d e f g h i j k l m n o p q Radley Balko (January 15, 2014). “Gothamist on asset forfeiture abuse at NYPD”. Washington Post. Retrieved October 11, 2014. …Though it’s been going on for more than 30 years, most people just aren’t aware of it. And they’re pretty astonished when they learn about it….
^ Jump up to: a b c JOHN BURNETT (June 15, 2008). “A Primer on Dirty Money”. NPR. Retrieved October 11, 2014. ….the money’s going back to Mexico the same way the drugs are — in the back of a car or in a concealed trap or in an 18-wheeler.”..
^ Jump up to: a b c d e f g h i “What’s Yours Is Theirs: A homeowner challenges Philadelphia’s abusive civil forfeiture law.”. Wall Street Journal. September 4, 2014. Retrieved October 11, 2014. …Under civil forfeiture laws, police can seize and sell private property whether or not the target is convicted of a crime. …
^ Jump up to: a b c d e f g h i JOHN ENDERS (ASSOCIATED PRESS) (April 18, 1993). “Forfeiture Law Casts a Shadow on Presumption of Innocence : Legal system: Government uses the statute to seize money and property believed to be linked to narcotics trafficking. But critics say it short-circuits the Constitution.”. Los Angeles Times. Retrieved October 11, 2014. ….When Carl and Mary Shelden sold their home and agreed to carry a $160,000 note, they had no idea they were about to be trapped in a government web that would cost them almost everything they owned…
^ Jump up to: a b c d e f g h i j Radley Balko (July 31, 2014). “Rep. Tim Walberg introduces bill to curb asset forfeiture abuse”. Washington Post. Retrieved October 11, 2014. …Last week, it was Sen. Rand Paul (R-Ky.) in the Senate. Now Rep. Tim Walberg (R-Mich.) has introduced a bill in the House to rein in civil federal asset forfeiture abuses. …
^ Jump up to: a b c d e f g h i j k l m n o p q r s t u v w x y z aa ab JOHN R. EMSHWILLER And GARY FIELDS (August 22, 2011). “Federal Asset Seizures Rise, Netting Innocent With Guilty”. Wall Street Journal. Retrieved October 11, 2014. …New York businessman James Lieto … Federal agents seized $392,000 of his cash anyway….
^ Jump up to: a b c d e LINDA GREENHOUSE (June 25, 1996). “Supreme Court Roundup;JUSTICES UPHOLD CIVIL FORFEITURE AS ANTI-DRUG TOOL”. The New York Times. Retrieved October 11, 2014. …the Supreme Court ruled today that the Government can both prosecute someone for a crime and seize his property through civil forfeiture without violating the constitutional bar against double jeopardy….
^ Jump up to: a b c d e f g h i j JOHN BURNETT (June 16, 2008). “Cash Seizures by Police Prompt Court Fights”. NPR. Retrieved October 11, 2014. …The law states that authorities can confiscate your money without ever charging you with a crime, as long as they can prove it’s tied to illegal activity — but sometimes it happens even when they can’t….
^ Jump up to: a b c Robert O’Harrow Jr, Michael Sallah (September 7, 2014). “Police intelligence targets cash: Reports on drivers, training by firm fueled law enforcement aggressiveness”. Washington Post. Retrieved October 11, 2014. …During the rush to improve homeland security a decade ago, an invitation went out from Congress to a newly retired California highway patrolman named Joe David. A lawmaker asked him to brief the Senate on how highway police could keep “our communities safe from terrorists and drug dealers.”…
Jump up ^ ASSOCIATED PRESS (October 10, 2014). “US settles suit with African official over assets”. Miami Herald. Retrieved October 11, 2014. …Teodoro Nguema Obiang Mangue … $20 million from the sale of these assets to a charitable organization to be used to benefit the people of his country… U.S. authorities filed civil-forfeiture cases three years ago… looted profits….
^ Jump up to: a b c d e f g h i j k l m n o p q r Craig Gaumer, Assistant United States Attorney, Southern District of Iowa (November 2007). “A Prosecutor’s Secret Weapon: Federal Civil Forfeiture Law” (PDF). United States Department of Justice. Retrieved October 24, 2014. November 2007 Volume 55 Number 6 “…One of the main advantages of civil forfeiture is that it has less stringent standards for obtaining a seizure warrant” … see pages 60, 71…
Jump up ^ Note: the legal tests used to justify civil forfeiture vary according to state law, but in most cases the tests are looser than in criminal trials where the “beyond a reasonable doubt” test is predominant
^ Jump up to: a b PETER J. HENNING (March 24, 2014). “Deducting the Costs of a Government Settlement”. The New York Times. Retrieved October 11, 2014. …The Supreme Court distinguished between forfeitures in criminal and civil cases in United States v. Bajakajian….
^ Jump up to: a b c GERALD E. MCDOWELL Chief, Asset Forfeiture & Money Laundering Section, Dept. of Justice (July 5, 1996). “Why Prosecutors Choose Civil Forfeiture (LttE)”. The New York Times. Retrieved October 11, 2014. …Prosecutors choose civil forfeiture not because of the standard of proof, but because it is often the only way to confiscate the instrumentalities of crime. ….
^ Jump up to: a b c d e f g h i Larry Salzman (September 25, 2013). “Assault by civil forfeiture: The Feds seized more than lunch money from a Michigan grocer.”. USA Today. Retrieved October 11, 2014. …the IRS and the U.S. Department of Justice teamed up … civil forfeiture….
^ Jump up to: a b c d e f g h i j k l m n George F. Will (April 30, 2014). “George F. Will: The heavy hand of the IRS”. Washington Post. Retrieved October 11, 2014. …aimed primarily at money laundering by drug dealers, requires banks to report cash deposits of more than $10,000…
^ Jump up to: a b c d e f g h i j k l Robert O’Harrow Jr., Michael Sallah, Steven Rich, Alice Crites, Alexia Campbell, Cathaleen Chen, Hoai-Tran Bui, Nagwa Abdallah, Justin Warren (September 8, 2014). “They fought the law. Who won? Many drivers faced a long ordeal in court to try to get their money back from police”. Washington Post. Retrieved October 11, 2014. …Mandrel Stuart … would be stripped of $17,550 in cash….
Jump up ^ Williams, Holcomb and Kovandzic, Institute for Justice, Part I: Policing for Profit, Retrieved October 25, 2014 (see Table 6 left most column)
^ Jump up to: a b c ZUSHA ELINSON (March 16, 2014). “Asset Forfeiture Gets a Close Look in Nevada: Official Review Follows Allegations of Unlawful Seizure of Thousands of Dollars”. Wall Street Journal. Retrieved October 11, 2014. …Allegations that law-enforcement officers in northern Nevada unlawfully took tens of thousands of dollars from passing motorists has spurred an official review and bolstered critics of such asset-forfeiture programs….
Jump up ^ Note: when there are numerous cash deposits, each below the $10,000 threshold for reporting requirements, it is sometimes called “structuring” and is a federal crime, as well as being a method often used to conceal illegal activity
^ Jump up to: a b November 4, 2014, Russ Mitchell, Dickinson County News, May 2015 date likely to settle Mrs. Lady’s case, Retrieved April 3, 2015, “…accounts are often seized without any real investigation. agents simply looked at her bank deposits and saw frequent bank deposits of less than $10,000….”
Jump up ^ Daniel Finney, Des Moines Register, November 2, 2014, Forfeiture target calls it ‘a violation of civil rights’, Retrieved April 3, 2015, “… May 2013 when two Internal Revenue Service agents knocked on the door of her Spirit Lake home…”
^ Jump up to: a b c d e Ian Duncan (March 1, 2014). “Senator proposes more tracking for asset forfeiture cases”. Baltimore Sun. Retrieved October 11, 2014. …Police in Maryland have broad powers to take money, cars and houses they suspect of being linked to crimes, but a Republican state senator wants them to keep better track of assets they seize….
^ Jump up to: a b c d e f g h Stewart M. Powell (May 26, 2013). “Asset forfeiture both an effective tool, civil-liberties nightmare”. San Francisco Chronicle. Retrieved October 11, 2014. …Federal asset forfeiture is both an effective crime-fighting tool and a civil-liberties nightmare that has victimized many innocent citizens, …
Jump up ^ Williams, Holcomb and Kovandzic. “Policing for Profit: Part I”. Institute for Justice. Retrieved October 26, 2014. …see Table 2 …
^ Jump up to: a b c d Nick Sibilla, July 2, 2015, Forbes, Civil Forfeiture Now Requires A Criminal Conviction In Montana And New Mexico, Retrieved July 3, 2015
^ Jump up to: a b c Ilya Somin (May 11, 2014). “Minnesota adopts law curbing asset forfeiture abuse”. Washington Post. Retrieved October 11, 2014. …the Minnesota state legislature recently adopted a law curbing asset forfeiture abuse. The new law forbids authorities from confiscating and keeping suspects’ property unless and until they have been convicted of a crime, or pleads guilty to committing it:…
^ Jump up to: a b Dan Boyd, Capitol Bureau Chief (April 2015). “Civil asset forfeiture bill signed into law by Gov. Susana Martinez”. Albuquerque Journal. Retrieved May 12, 2015. Gov. Susana Martinez does not like the term “policing for profit,” but she still signed into law today a measure aimed at barring law enforcement from seizing money, cars or other types of property from people on civil grounds during an arrest or traffic stop on suspicion the property was connected to a crime.
Jump up ^ BENJAMIN WEISER (August 28, 2014). “No Pension Until Miguel Martinez, an Ex-New York Councilman, Pays Back Stolen Funds”. The New York Times. Retrieved October 11, 2014. …civil forfeiture laws to “claw back” pension benefits from corrupt politicians….
Jump up ^ Editorial Board (20 November 2014). “When police play bounty hunter: Our view: Civil asset forfeiture is government at its absolute worst.”. USA Today. Retrieved 7 December 2014.
^ Jump up to: a b Scott Bullock, Institute for Justice, Policing for Profit: Foreword — Recommendations for Reform, Retrieved October 21, 2014