Policing for Profit: The Abuse of Civil Asset Forfeiture is the most comprehensive national study to examine the use and abuse of civil asset forfeiture and the first study to grade the civil forfeiture laws of all 50 states and the federal government. Under state and federal civil asset forfeiture laws, law enforcement agencies can seize and keep property suspected of involvement in criminal activity. Unlike criminal asset forfeiture, with civil forfeiture, a property owner need not be found guilty of a crime—or even charged—to permanently lose her cash, car, home or other property.
In the House of Representatives, Congressman Tim Walberg has sponsored H.R. 5212, the Civil Asset Forfeiture Reform Act of 2014 (CAFRA 2014), to reform federal civil forfeiture laws. & To Help Stop Abuse of Civil Asset Forfeiture.
Asset forfeiture is a practice the United States long has used. The federal government started using the tactic more frequently in the 1970s as law enforcement agencies began cracking down on drug use. The idea behind most forfeitures is to punish those who have committed wrongdoings.
The Civil Asset Forfeiture Reform Act of 2000 changed some of the federal forfeiture laws, despite protests from the law enforcement community and the Department of Justice. One of the most significant changes made to forfeiture law is the waiver of a cost bond in all cases except administrative forfeiture.
The legislation also changed the existing law to allow for a court appointed attorney to represent a claimant, which previously was not done. It shifted the burden of proof from the claimant to the government and limited the availability of warrantless seizures.
Today forfeiture is consolidated into a few general provisions. There are two types of forfeiture cases in the United States, criminal and civil. Nearly half of the forfeiture cases in the country are civil cases, but they often are tied to pending criminal cases.
Courts can have either in rem or in personam jurisdiction in forfeiture proceedings. The U.S. Government essentially sues the item of property in in rem jurisdiction, not the person, and the owner is effectively a third-party claimant. This often is used in civil forfeiture cases.
In civil cases, the owner does not have to be guilty of any crime for his or her property to be taken. This means it is possible for the government to seize the property by proving someone other than the owner used the property to commit a crime.
The theory behind in rem proceedings is the legal idea that the property itself is considered guilty. The court, which then has jurisdiction over the property, will decide who has superior title between the government and the claimant.
In some instances after a person is convicted of a crime, the federal government could confiscate some of his or her property. Typically, the items that are taken from the person are things that could have been related to the crime. For example, if a person used a vehicle to transport illegal narcotics, it could be seized.
Generally, criminal forfeitures are in personam. The criminal forfeiture is usually carried out in a sentence following a conviction and is a punitive act against the offender. This means it essentially is another penalty for a crime.
A seizure warrant can be issued before the property actually is taken, but there is generally no pre-seizure notice provided to the owner. The U.S. Supreme Court has held that pre-seizure notice is not required in order to meet due process requirements. Property can be seized without a warrant for several different reasons, including:
• A complaint for forfeiture was filed and an arrest warrant in rem was issued • The property was lawfully seized by state or local law enforcement and was turned over to a federal agency • Probable cause exists to believe the property is subject to forfeiture and the seizure is pursuant to a lawful arrest or search or an exception to the Fourth Amendment warrant requirement applies
The United States Marshals Service is responsible for managing and disposing of properties seized and forfeited by Department of Justice agencies. The service currently manages billions of dollars worth of property.
John Yoder and Brad Cates, who headed the Asset Forfeiture Office at the U.S. Department of Justice from 1983 to 1989, slammed civil forfeiture as a “complete corruption” and “fundamentally at odds with our judicial system and notions of fairness,” in an op-ed for The Washington Post. Thanks to civil forfeiture laws, police and prosecutors don’t need to charge someone with a crime to seize and keep their property. Yoder and Cates “were heavily involved in the creation of the asset forfeiture initiative at the Justice Department,” they write, but after seeing civil forfeiture become a “gross perversion of the status of government amid a free citizenry,” the two now believe it should be “abolished.”
Their criticisms come on the heels of an extensive, three-part investigation by The Washington Post into highway interdiction. Since 9/11, without warrants and despite a lack of criminal charges, law enforcement nationwide has taken in $2.5 billion from 61,998 cash seizures under equitable sharing. This federal civil forfeiture program lets local and state law enforcement literally make a federal case out of a seizure, if they collaborate with a federal agency. Not only can they then bypass state forfeiture laws, they can pocket up to 80 percent of the proceeds. So of that $2.5 billion seized through equitable sharing, local and state authorities kept $1.7 billion for their own uses.
In order to seize cash, police typically pulled drivers over for minor traffic infractions. During the stop, police would look for “indicators” of suspicious, criminal activity. Tinted windows, air fresheners, trash in the car, “a profusion of energy drinks,” “a driver who is too talkative or too quiet” and signs of nervousness have all been considered indicators. For one Florida sheriff, “cars obeying the speed limit were suspect—their desire to avoid being stopped made them stand out.”
On the grounds that a driver is sufficiently suspicious, police then have the authority to search the car with a drug dog. If the dog alerts (and there are significant concerns about their accuracy), police then have probable cause to seize property owned by the driver. After police seized cash, the government usually wins: The Washington Post found that out of nearly 62,000 cash seizures since 9/11, in only 4,455 cases—seven percent—did the government agree to return at least a portion of the money taken.
Vincent Costello was one of them. Driving down to fix up a home in Florida with his girlfriend, the two were pulled over in May 2010 by Deputy Mason Ashby for a cracked windshield. During the stop, Ashby claimed he smelled marijuana and searched the van. No drugs were found. But the deputy did find over $30,000 in cash. Ashby contacted another deputy, a member of a regional DEA task force. Despite the pesky fact that they didn’t find any drugs, police seized all of Costello’s cash.
After he hired an attorney, the government offered to settle his case. But Costello would only get half of his money back. With his legal fees topping $9,000, Costello kept just $7,000—less than a quarter of what was originally seized. “Why would [they] give anything back if they thought you were guilty?” he told The Washington Post.
Since equitable sharing is a federal program, it can be very difficult to prevent law enforcement from participating, even in states that have strong protections for property owners. In Utah, voters, by a margin of 2:1, overwhelmingly backed an initiative that overhauled the state’s civil forfeiture laws and sharply curtailed involvement in equitable sharing in 2000. Under these short-lived reforms, just $3,357 was transferred to Utah in fiscal year 2002 through equitable sharing. One year later, that number was $0.
Undaunted, law enforcement lobbied heavily and convinced state lawmakers to pass a bill in 2004, weakening the initiative. It had been the first time since the 1960s that the Utah legislature had overturned a citizen ballot initiative. With the reforms gutted, Utah law enforcement could continue to police for profit. Over the past two years, Utah law enforcement has received over $2.8 million from equitable sharing.
The lure of equitable sharing is even more pronounced in North Carolina, the only state without civil forfeiture. Law enforcement there can only take property after a person has been convicted of a crime and gain nothing after a property has been forfeited. Yet by partnering with federal agencies, police in North Carolina are doing an end-run around state law. They’ve done so with gusto, seizing over $130 million under equitable sharing, the fifth most of any state. Of that, North Carolina law enforcement kept $96.9 million.
While the Post investigation focused on highway interdiction, civil forfeiture is by no means limited to drivers. The Institute for Justice has represented a motel owner in Massachusetts, a California landlord, grocery store owners in Michigan, and just launched a major class-action lawsuit on behalf of homeowners in Philadelphia.
Across the country, 298 departments and 210 task forces, ranging from tiny Estelline, Tex. to Philadelphia, have seized the equivalent of at least 20 percent of their budgets. Police departments have become “dependent, if not addicted to that revenue stream,” noted Norm Stamper, former Seattle Chief of Police and now an advisory board member of Law Enforcement Against Prohibition. “It’s when that revenue becomes a line item in next year’s budget that you’re dealing with I think a corrupt practice,” he added.
The notion that civil forfeiture can be a perverse incentive is further bolstered by a new IJ report, “Bad Apples or Bad Laws?” Using experimental economics, researchers at Chapman University created a video game that split participants into two groups: red for sheriffs, blue for citizens. When rules were in place that mimicked civil forfeiture, sheriffs took more property.
These takings also fostered ill will between the two groups, with blue participants making comments like “he has too much power,” “red has no incentive to help us” and “some reds just wanna see the world burn.” Likewise, civil forfeiture is overwhelmingly unpopular.
Prospects for reform are starting to brighten. Earlier this year, Minnesota enacted a landmark law that requires a criminal conviction or its equivalent before the government can forfeit property. In Congress, Sen. Rand Paul has proposed the Fifth Amendment Integrity Restoration (FAIR) Act, which would largely end equitable sharing. Similarly, in the House, Rep. Tim Walberg has sponsored a bill that, in his words, would require the U.S. Attorney General “to certify that equitable-sharing agreements are not entered into simply to get around state laws that would prohibit a forfeiture.”
Police are sworn to protect the public, not to profiteer. “The police belong to the people,” remarked Stamper. “Not the other way around.”
In August 2012, the ACLU settled a class action suit against officials in Tenaha and Shelby Counties in Texas, where police seized an estimated $3 million from innocent motorists between 2006 and 2008. Police officers routinely pulled over motorists, usually Black or Latino, without any legal justification, asked if they were carrying cash and, if they were, ordered them to hand over the cash to the city or face charges of money laundering or other serious crimes. This happened in over 140 cases. Here are some of the stories.
James Morrow, a 32-year-old African American from Arkansas, was driving through Tenaha, Texas on his way to visit a cousin in Houston in August 2007 when he was pulled over for allegedly "driving too close to the white line." Though he had neither committed a crime nor had a warrant out for his arrest, a police officer ordered Morrow out of his car and began interrogating him on the side of the road in this 1,000-person town in East Texas. Despite having no evidence that Morrow had ties to crime, the police officer continued to badger him, asking if he had any money with him and eventually bringing an untrained dog to the scene to sniff the car.
The police searched James Morrow’s car and seized $3,969 in cash they found, as well as two cell phones. They accused Morrow of money laundering, for no other reason than carrying cash in his private car. Morrow spent the night in the local jail, where the police and the district attorney threatened to prosecute him for laundering money unless he forfeited the cash to the officers, and warned him not to hire a lawyer or try to get his money back.
Morrow was never charged with a crime. He hired an attorney to fight to get his money back, but after paying $3,500 in attorney fees he was left with little more than $400.
“I was victim of truly unjust law enforcement practices and just couldn’t walk away,” Morrow said of the experience, adding that he couldn’t “believe that this went on in modern times.”
Javier Flores, a 29-year-old artist of Hispanic descent, and his friend William Parsons, 31, were visiting friends in Pittsburgh in 2008 when they got news of a hurricane headed toward their hometowns in southwest Texas. They had planned to fly home at a later date, but anxious to help their families prepare back home, Flores and Parsons booked a rental car, taking turns driving through the night to beat the storm.Flores and Parsons were pulled over near the small town of Tenaha on their way home. Flores, an auto mechanic at the time, wore his hair in an afro and was frequently mistaken as African-American although he is Latino. Parsons, a college student and part time truck driver, was often mistaken as Hispanic although he is white.
The officer circled the car a few times with a dog before conducting a full search of the car. As one officer searched the rental car, the other handcuffed Flores and put him in the backseat of the police vehicle. The officers took $8,400 they found among the luggage in the trunk of the rental car, telling Parsons (falsely) that he could not legally carry more than $1,500. They threatened prison time and invented charges of money laundering, bullying Flores and Parsons into waiving their rights to the money in exchange for their release.
Though the pair was never charged with money laundering – or with any offense or violation, for that matter – it cost them $5,000 in legal fees to recover the money taken from them on the side of Highway 59.
Flores said he “doesn’t even want to drive anywhere now” and that he’s stopped taking road trips to California, opting to stay home for fear of being profiled on the road. He cut his hair and avoids growing it too long.
Jennifer Boatright Jennifer Boatright, her former partner Ron Henderson, and their two small children were driving a rental car in April 2007 when they were pulled over on Highway 59 by Tenaha police.
Despite having allegedly pulled over the interracial couple for driving in a left-turn lane, the officers never wrote a traffic ticket, instead interrogating them about whether they were carrying money. When Boatright said they had around $6,000 on them to buy a used car, the officers began searching the car.
The police seized $6,037 in cash as well as a roadside assistance kit from the car, with no legal justification for the search or the seizure. Despite finding no drugs or contraband, the couple was arrested and threatened with charges of money laundering. The officers also threatened to send their kids to foster care, coercing the couple into signing a form waiving all rights to the money in exchange for letting them leave with their children.
“It was give them the money or they were taking our kids,” Jennifer Boatright later told the Chicago Tribune. “They suggested that we never bring it up again. We figured we better give them our cash and get the hell out of there.”
Dale Agostini Maryland-based restaurant owner Dale Agostini, his fiancée, their one-year-old son and a cook who works with Agostini, all black, were stopped for allegedly driving in the left lane while traveling on Highway 59 near Tenaha in 2007. The Tenaha police officer ordered Agostini out of the car and began interrogating him and, later, his passengers. Police officers used an untrained dog to “sniff” the car, and then initiated a search. They found and took $50,291 that Agostini was carrying to buy equipment for his Washington, D.C. restaurant, Sweet Mango, where he had worked for over 20 years. The officers also took six cell phones, an iPod, and eventually seized the car.
Agostini and his passengers were taken back to the station, where the police said they were arresting everybody and calling Child Protective Services to take the baby. They were threatened with criminal charges of money laundering and engaging in organized criminal activity, though no criminal charges were ever made.
Agostini asked to call a lawyer, but was told he couldn’t make a call until he’d been in jail for four hours. He then asked if he could kiss his baby son Amir goodbye, but police refused. One officer told Agostini that he could kiss his son when he got out of jail. The adults were taken to the county jail and the baby was taken away.
Did you know you don’t actually need to be charged with a crime for the government to seize your financial and property assets?
Under U.S. law, it can take only the suspicion of a crime to turn lives upside down and seize the property of innocent citizens.
The civil asset forfeiture law allows government agencies like the IRS or the Department of Justice to confiscate anyone’s property without obtaining criminal charges against them.
Originally intended to seize the assets of money launderers and drug dealers, the law’s low requirement threshold has allowed government agencies to incorrectly identify someone as a possible suspect in a crime take their assets. It can take more than a year for an innocent person who has had their business, property or finances seized to be cleared of wrongdoing, during which time they can lose everything, said Rep. Tim Walberg (R-Mich.), who is working to reform the law.
Walberg has introduced the Civil Asset Forfeiture Reform Act, which would require the government to show proof that an individual was involved in criminal wrongdoing before it can seize property. Currently before the House Judiciary Committee, the legislation has several cosponsors but may have difficulty passing both the House and Senate.
Wednesday’s new episode of TheBlaze TV’s For the Record, “Seized,” will reveal how thousands of people have become innocent victims of the government’s forfeiture law and what they are doing to fight back.
“This has a tremendous negative impact on our freedoms and the ability to carry on our government the way it’s been established according to the Constitution,” Walberg said. “That’s not what government should be, in the place of being a fearmonger, a producer of fear in the peoples’ lives and ultimately, using their power to extract resources for their own benefit.”
David B. Smith, an asset forfeiture attorney based in Alexandria, Virginia, just outside the nation’s capital, told The Blaze that many small-business owners become targets of the government because they don’t have a full understanding of the law. He said many small-business owners draw the attention of the IRS when they inadvertently engage in “structuring,” a banking tactic often used by money launderers.
Structuring is when someone makes deposits or withdrawals of less $10,000 to avoid having the bank file a currency transaction report with the IRS or the Financial Crimes Enforcement Network. Business owners, however, have told Smith they believed they were following the law when they made deposits or withdrawals of less than $10,000.
Smith, who helped draft the Civil Asset Forfeiture Reform Act of 2000 and other federal and state forfeiture laws, said the banks don’t warn customers that they will be targeted by the government if they make these types of deposits.
“There are federal judges who don’t know it’s illegal. There are loads of lawyers who don’t know it’s illegal, even criminal defense lawyers, because very few people handle these types of cases,” Smith said.
But it’s not just seizing people’s assets without proper cause that’s a concern. According to the Institute of Justice, a civil liberties law firm and government watchdog group, allegations of overreach by law enforcement have included using forfeiture funds to purchase unnecessary and often outlandish items, including:• In Georgia, a district attorney’s used forfeiture funds to buy steak, booze and to see CeeLo Green in Concert.
• In Texas, a district attorney used $500 dollars of seized forfeiture funds to buy tequila, rum and a margarita machine to throw a party.
• Another Texas district attorney spent $27,000 to attend a conference in Hawaii.
• A Georgia sheriff’s office spent $90,000 on a Dodge Viper for its D.A.R.E. program.
But it’s what law enforcement officials themselves say that reveals how dependent the agencies have become on forfeiture funds. At a Columbia, Missouri, Citizens Police Review Board in November 2012, Police Chief Ken Burton explained in detail how his department uses the forfeiture funds, saying there are no real limitations on what the departments can buy.
“We usually base it on something that would be nice to have,” Burton. “We usually base it on something that would be nice to have that we can’t get in the budget for. We try not to use it for things that we need to depend on … it’s kinda like ‘Pennies from Heaven’ to get you a toy or something that you need is the way we typically look at it.”
Rep. Fights Forfeiture with Civil Asset Forfeiture Reform Act of 2014 In the House of Representatives, Congressman Tim Walberg has sponsored H.R. 5212, the Civil Asset Forfeiture Reform Act of 2014 (CAFRA 2014), to reform federal civil forfeiture laws. Like the FAIR Act, Walberg’s bill would:
Shift the burden of proof to the federal government. Under current law, property owners are required to prove they are innocent to get their seized property back. But with this new legislation, the government would have to prove that an owner intentionally used his or her property for criminal activity (or consented to its illegal use by another person).
Raise the standard of proof required to forfeit property. Right now, the government only needs to show that a property is connected to a crime by a “preponderance of the evidence” (more likely than not) in civil forfeiture cases. If CAFRA 2014 passes, the federal government would instead need to prove by “clear and convincing evidence” that there was a substantial connection between illegal conduct and property.
Additionally, the Civil Asset Forfeiture Reform Act of 2014 would:
Give property owners a right to an attorney in civil forfeiture cases. Since these cases are in civil court, not in criminal court, property owners battling civil forfeiture do not have a constitutional right to an attorney to represent them. Often, the cost to hire an attorney is worth more than the property that was seized so many civil forfeiture cases aren’t even challenged in court. CAFRA 2014 would help rectify this injustice.
Require more transparency for forfeiture funds. The bill would specifically identify which funds were obtained from criminal forfeiture and which ones were from civil forfeiture, providing more information about law enforcement’s forfeiture activities to Congress.
Restrict participation in equitable sharing. Under the new legislation,local and state law enforcement could only take part in equitable sharing if they do not circumvent state civil forfeiture laws.
Criminal forfeiture is an action brought as a part of the criminal prosecution of a defendant. It is an in personam (against the person) action and requires that the government indict (charge) the property used or derived from the crime along with the defendant. If the jury finds the property forfeitable, the court issues an order of forfeiture.
For forfeitures pursuant to the Controlled Substances Act (CSA), Racketeer Influenced and Corrupt Organizations (RICO), as well as money laundering and obscenity statutes, there is an ancillary hearing for third parties to assert their interest in the property. Once the interests of third parties are addressed, the court issues a final forfeiture order.
Civil judicial forfeiture is an in rem (against the property) action brought in court against the property. The property is the defendant and no criminal charge against the owner is necessary.
Administrative forfeiture is an in rem action that permits the federal seizing agency to forfeit the property without judicial involvement. The authority for a seizing agency to start an administrative forfeiture action is found in the Tariff Act of 1930, 19 U.S.C. § 1607. Property that can be administratively forfeited is: merchandise the importation of which is prohibited; a conveyance used to import, transport, or store a controlled substance; a monetary instrument; or other property that does not exceed $500,000 in value.
Source: A Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies, U.S. Department of Justice, March 1994.
Hey, here’s a great crime-fighting idea: Let’s give local police and prosecutors the authority to seize cash, cars, homes, and other property from private citizens—without a court convicting those citizens of any crime. Without, in fact, even charging those citizens with any crime. Then let the authorities sell the goods and keep the proceeds for themselves.
What could possibly go wrong?
Well, now we know. In fact, we’ve known for a long time. Since the practice described above, called civil asset forfeiture, took off about three decades ago, its flaws have become painfully clear. The system’s incentives have led some localities to turn forfeiture into little more than a shakedown operation.
That has produced untold cases like Mandrel Stuart’s. Stuart, a Staunton businessman, got pulled over for a minor traffic violation. The police seized the $17,550 they found in his car. Unlike many victims of forfeiture, Stuart fought back. A jury said the government should return his money—which it did. But by then, he had lost his small barbecue joint because he didn’t have the funds to keep it running.
Congress tried to rein in such abuses in 2000, when it passed the Civil Asset Forfeiture Reform Act. It didn’t help. In 2010, the libertarian Institute for Justice produced its “Policing for Profit” report, which showed how miserably the change in federal law had failed to stem the rampant abuse. The report gave Virginia a D-minus. “Virginia’s civil forfeiture laws utterly fail to protect property owners,” it concluded. “Property owners bear the burden of proof for innocent-owner claims, effectively making them guilty until proven innocent. Moreover, law enforcement retains 100 percent of the proceeds from civil forfeiture.”
The institute is now suing over asset forfeiture in Philadelphia, which has reaped more than $64 million from the practice over the course of a decade—and used $25 million of it to pay prosecutors’ salaries. Among the plaintiffs: Chris Sourovelis and family, whose house was seized after their son was caught selling $40 worth of drugs nearby.
Earlier this month The Washington Post ran its own lengthy exposé on civil asset forfeiture. It counted up tens of thousands of cash seizures on the nation’s highways that funneled $1.7 billion to state and local agencies, and an additional $800 million to the feds. Only one in six seizures was challenged; 40 percent of challenges took more than a year to resolve. The series also uncovered a network called Black Asphalt that lets officers “share detailed reports about American motorists—criminals and the innocent alike—including their Social Security numbers, addresses and identifying tattoos, as well as hunches about which drivers to stop. ... A thriving subculture of road officers on the network now competes to see who can seize the most cash and contraband.”
One of the cases the paper highlighted involves Victor Ramos Guzman and his brother-in-law. They were driving a rental car on I-95 south of Richmond when they were stopped for speeding. They had $28,500 in the car, which was seized by Immigrations and Customs Enforcement. As it turns out, the money belonged to a Baltimore church the two men were members of. They were using it to buy land for another church. ICE eventually gave back the money. According to The Post, the Virginia State Police trooper who pulled them over is a member of the Black Asphalt network. State police spokeswoman Corinne Geller told the newspaper that “the facts of the stop speak for themselves.” Yes they do.
Do some seizures fulfill the original goals of the forfeiture program—disrupting criminal enterprises while giving local police departments some badly needed revenue? Absolutely. But by the same token, you’re also likely to catch a lot of bad guys and disrupt criminal enterprises if you conduct house-to-house searches of whole neighborhoods. But catching bad guys is not the prime function of law enforcement. The prime function is protecting the rights of the law-abiding. Busting bad guys is simply a means to that end.
The perversion of asset forfeiture into a moneymaking scheme for law enforcement agencies reflects a broader problem. It is a case study in how government becomes a self-dealing special interest. Other examples abound—from social welfare programs that try to erase the stigma of dependence on social welfare programs, to weapons programs even the military doesn’t want—but few illustrate the problem in such bold colors. Imagine what audits would be like if IRS agents got to keep any money they said you owed. That’s civil asset forfeiture in a nutshell.
The abuse has gotten so bad that two of the practice’s principal originators have now repudiated their own program. John Yoder and Brad Cates ran the Justice Department’s Asset Forfeiture Office in the 1980s. The other day, The Washington Post ran an op/ed they co-wrote—“Kill the Program We Helped Start”—in which they said “civil asset forfeiture and money-laundering laws are gross perversions of the status of government amid a free citizenry. The individual is the font of sovereignty ... and it is unacceptable that a citizen should have to ‘prove’ anything to the government.”
Exactly so. Asset forfeiture should be limited to criminal cases. The government should not use a lower standard of proof to take property simply because it thinks somebody might be up to something, maybe. If it can’t prove a case, then it should not get the cash. Police departments that play by the rules should have no problem with that. And police departments that don’t should have a lot less power in the first place.
I. CIVIL ASSET FORFEITURE REFORM Summary of the Problem: The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) delivered several meaningful and overdue reforms — for example, it placed the burden of proof on the government, by a preponderance of the evidence, in all civil forfeiture cases covered by the Act. It also abolished the cost bond, the tariff claimants had to pay before they could proceed legally for return of their own property. Unfortunately, many of the law’s important reforms have been undermined by statutory loopholes or judicial decisions.
Several states have enacted similar or broader reforms, including provisions to require criminal conviction prior to any forfeiture. Federal law has frustrated some of these reforms. Under the federal equitable sharing law, if state police want to circumvent state forfeiture laws — for example, because the state law allocates forfeited assets to the state’s education fund — they simply turn the forfeiture over to federal law enforcement authorities. Federal authorities keep 20% and return roughly 80% to the state police. We believe that federal legislation or regulation to halt this circumvention of state law and fiscal policy would garner strong bipartisan support. This issue also possesses a “states’ rights” component, allowing states to enact their own reforms without federal interference.
Executive: An executive order or agency regulation is an available, though not preferred, remedy for use of equitable sharing to circumvent state law.
Legislative Changes: Congress should pass comprehensive legislation to curb abuses of federal and state forfeiture powers and fulfill the original intent of the bipartisan Civil Asset Forfeiture Reform Act and related state reforms.
1. Amend the federal equitable sharing law, under which state police circumvent state forfeiture laws by turning over the forfeiture to federal law enforcement authorities in exchange for a percentage of the proceeds. Amend 21 U.S.C. § 881(e)
2. Clarify CAFRA’s fee shifting provision, which has been undermined by Second Circuit case law, to fully enforce the government’s obligation to pay attorney fees to prevailing claimants. Amend 28 U.S.C. § 2465(b)(1)
3. Close loopholes, created by judicial decisions, in the statutory right to sue the government (i.e., waiver of sovereign immunity) for negligent or intentional damages to or loss of seized property in its custody. Amend 28 U.S.C. § 2680(c)
4. Explicitly waive sovereign immunity where the government forfeits property without proper notice to the owner or destroys, sells or loses property without having forfeited it. Amend Rule 41(g) of the Federal Rules of Civil Procedure
Legislative Appropriations (Solutions w/ Funding Requests): Congress could prohibit or restrict the use of Justice Department funds to forfeit property under the equitable sharing law.
Executive Branch: Department of Justice
Legislative Branch: House and Senate Judiciary Committees; House and Senate Appropriations Committees
Legislative Branch: In 2000, Congress unanimously enacted the Civil Asset Forfeiture Reform Act (CAFRA), the only major reform of our Nation’s civil forfeiture laws in over 200 years. The CAFRA had strong bipartisan support, reflecting the public’s concern that our property rights were in danger from overzealous enforcement of unduly harsh forfeiture laws. See U.S. v. James Good Real Property, 510 U.S. 43, 114 S. Ct. 492, 505 (1993) (“Individual freedom finds tangible expression in property rights”).
In 1988, Congress passed an amendment requiring that federal transfers of forfeited assets to a state be allocated according to the state’s asset distribution formula. However, the amendment was repealed in 1989 before it took effect (Public Law 101-189, §1215(a)).
Judicial Branch: Judicial decisions have undermined the rights of prevailing parties to obtain attorney fees and damages from the government. See, e.g., United States v. Khan, 497 F.3d 204 (2d Cir. 2007); Foster v. United States, 522 F.3d 1071 (9th Cir. 2008); Adeleke v. United States, 355 F.3d 144, 154 (2d Cir. 2004); Diaz v. United States, 517 F.3d 608 (2d Cir. 2008).
On November 18, 2009, Shukree Simmons, who is African-American, was driving with his business partner on the highway from Macon, Georgia, back to Atlanta after selling his cherished Chevy Silverado truck to a restaurant owner in Macon for $3,700 of sorely needed funds. As Mr. Simmons passed through Lamar County, he was pulled over by two patrol officers who stated no reason for the stop, but instead asked Mr. Simmons numerous questions about where he was going and where he had been, and even separated him from his business partner for extended questioning. The officers searched both people and the car, finding no evidence of any illegal activity. A drug dog sniffed the car and did not indicate the presence of any trace of drugs. Notwithstanding the total lack of evidence of criminal activity and Mr. Simmons’s explanation that he was carrying money from selling his truck, the officers confiscated the $3,700 on the suspicion that the funds were derived from illegal activity, pursuant to their authority under Georgia’s civil asset forfeiture law. Despite the fact that Mr. Simmons mailed his bill of sale and title for the truck to the officer, he was told over the phone that he would need to file a legal claim to get his money back.
For most people in Mr. Simmons’s position, the story would end there. To challenge this activity and get their money back, victims of seizures bear the burden of initiating a claim for the money. If no claim is filed, the police can keep the money. It is unlikely that regular folks whose money is taken will be equipped to seek out the appropriate statute and comply with the requirements for making a claim. While lawyers are available to do this work, the price is high — in Georgia, a standard retainer fee is $5,000. Many people lack the resources to pay that price, and even if they had them, it would not make sense to pay more than the value of the seized funds.
Luckily for Mr. Simmons, he spoke to a lawyer who referred his case to the ACLU, which became involved in December 2009. The ACLU sent a letter to Lamar County Sheriff Larry Waller asserting Mr. Simmons’s right to the money and seeking its return. Waller responded that he agreed that the state had no right to the funds, but directed Mr. Simmons to initiate a claim. The ACLU pushed back, and in early January the Sheriff returned the money to Mr. Simmons.
Asset forfeiture laws create huge incentives for law enforcement officers to police for profit. In 2003, the total amount forfeited to Georgia law enforcement was $38,330,861. Georgia’s law permits one-third of seizure proceeds to return to local law enforcement, which can be used for any law enforcement purpose except for the payment of salaries or rewards. The rest of the money goes into the local general fund, and must be used for programs such as drug treatment and witness protection. However, in Georgia and most other states, if police want access to more of the money for their budgets, they may turn over a drug-related seizure to the D.E.A., thereby federalizing the seizure. The DEA “does the paperwork”, handles any claims to the money by individuals (who must sue in federal court), and returns 80 percent of the money to the police, with no state law strings attached. Police may then use the funds for any law enforcement purpose, including payment of salaries. This process, known as equitable sharing, permits local law enforcement to do an end run around state civil asset forfeiture laws.
Reports from other asset forfeiture cases in the media and in lawsuits indicate that police do not seize assets from all equally. Instead, they target those persons they associate with criminal behavior and drug trafficking. The result is a regime of racial profiling of black and Latino drivers on the highways, who are stopped and stripped of their money based on minimal or non-existent evidence.
Mr. Simmons' case demonstrates the extent to which civil asset forfeiture laws, formed to assist officers in fighting drug crimes, are misused against people of color in cases in which there is no evidence of criminal activity. Mr. Simmons was never arrested and never charged. Instead, the Sheriff's department took his money, admitted that it has no right to keep the money, and told Mr. Simmons that he must make a legal claim to get it back. The ACLU seeks to challenge this and other civil asset forfeiture law abuses. The era of easy money for police departments by wrongfully taking cash from vulnerable drivers must end.
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