If Government Can Use Asset Forfeiture Schemes To Steal Your Property, You Have No True Rights

“The fact is that the government, like a highwayman, says to a man: Your money, or your life. And many, if not most, taxes are paid under the compulsion of that threat. The government does not, indeed, waylay a man in a lonely place, spring upon him from the road side, and, holding a pistol to his head, proceed to rifle his pockets. But the robbery is none the less a robbery on that account; and it is far more dastardly and shameful.”[2]— Lysander Spooner, American abolitionist and legal theorist

Relying on the topsy-turvy legal theory that one’s property can not only be guilty of a crime but is guilty until proven innocent, government agencies at all levels have eagerly cashed in on civil asset forfeiture as a revenue scheme under the pretext of the War on Drugs.

Civil asset forfeiture schemes allow police and prosecutors to “seize your car or other property, sell it and use the proceeds to fund agency budgets—all without so much as charging you with a crime.”[3] This incentive-driven excuse for stealing from the citizenry is more accurately referred to as “policing for profit” or “theft by cop.” Indeed, in one year alone, as The Washington Post reported, “law enforcement took more stuff from people than burglars did.”[4]

As constitutional attorney John W. Whitehead points out, if the government can arbitrarily freeze, seize or lay claim to your property (money, land, or possessions) under government asset forfeiture schemes, you have no true rights.[5]

The Ugly Business of Asset Forfeiture

Supposedly, “we the people” are presumed innocent until proven guilty. Civil asset forfeiture, however, turns that rule on its head. In fact, with civil forfeiture, the property is guilty until the owner proves its innocence.[6]

Here’s how the whole ugly business works in a nutshell.

First, government agents (usually the police) use a broad array of tactics to profile, identify, target and arrange to encounter (in a traffic stop, on a train, in an airport, in public, or on private property) those  individuals who might be traveling with a significant amount of cash or possess property of value.[7] Second, these government agents—empowered by the courts and the legislatures—seize private property (cash, jewelry, cars, homes and other valuables) they “suspect” may be connected to criminal activity.

Then—and here’s the kicker—whether or not any crime is actually proven to have taken place, without any charges being levied against the property owner, or any real due process afforded the unlucky victim, the property is seized by the government, which often divvies it up with the local police who helped with the initial seizure.

In a Kafkaesque turn of the screw, the burden of proof falls on the unfortunate citizen, who must mount a long, complicated, expensive legal campaign to prove their innocence in order to persuade the government that it should return the funds they stole. Not surprisingly, very few funds ever get returned.

The Horror Stories Are Legion

It’s a new, twisted form of guilt by association, only it’s not the citizenry being accused of wrongdoing, just their money. Motorists have been particularly vulnerable to this modern-day form of highway robbery.

The horror stories are legion and growing.

For instance,

• On Sept. 21, 2015, Kentucky resident Gerardo Serrano had his new Ford pickup truck seized by U.S. Customs and Border Protection agents after a search of his vehicle uncovered five bullets in the console of his truck. The bullets belonged to the man’s lawfully owned gun, which he had left at home.[8] The search took place after border agents objected to Serrano photographing the checkpoint, forcefully yanked Serrano out of his truck, and demanded access to his phone (which Serrano refused to allow without a warrant). For three hours, Serrano was locked up in a cell without food, water or a toilet. Eventually, he was released without being charged with any crime. However, the government refused to return his truck. Two years and thousands of dollars later, Serrano is still working through legal channels to have his truck returned.[9]

• On April 1, 2013, James Leonard was stopped by Texas police officers for a minor traffic violation, a violation that ended up costing over $200,000. Police took $201,000 in cash they found in a safe in Leonard’s car, claiming the money was connected to drug dealing and could be seized and kept by the state.  But neither Leonard nor anyone else was ever charged with a drug crime. In fact, the only evidence supporting the suspicions of the police was that the road Leonard was driving was a reputed “drug corridor” and Leonard and his passenger gave conflicting stories about what was in the safe.  The money actually belonged to Leonard’s mother and was the proceeds of the sale of her home, a fact confirmed by a bill of sale that also was in the safe.  Despite the fact that Leonard was innocent of wrongdoing, the U.S. Supreme Court upheld the theft on a technicality.[10] The Leonards lost their life savings. [11]

• Police raided the Contemporary Art Institute of Detroit’s monthly “Funk Night” party in 2008, claiming that the establishment did not have a license.[12] Officers ticketed attendees for loitering and impounded 40 vehicles simply because attendees had driven them to the event. In order to have their cars returned, attendees each were forced to pay a $900 impound fee, totaling over $35,000. Unfortunately, one attendee’s car was stolen from the impound lot.

• During a routine traffic stop in July 2013, Mississippi police confiscated $360,000 from a secret compartment in the driver’s car.[13] The police had no proof that the driver had committed a crime, but the police were “not ruling out criminal activity.”

• Police stole $50,000 in cash from Amanee Busbee—money which she planned to use to complete the purchase of a restaurant—and threatened to hand her child over to CPS if she resisted.[14] She is one of the few to win most of her money back in court.

• Police stole $22,000 in cash from Jerome Chennault—which he planned to use as the down payment on a home—simply because a drug dog had alerted police to its presence in his car. After challenging the seizure in court, Chennault eventually succeeded in having most of his money returned, although the state refused to compensate him for his legal and travel expenses.[15]

• Police stole $8,500 in cash and jewelry from Roderick Daniels—which he planned to use to purchase a new car—and threatened him with jail and money-laundering charges if he didn’t sign a waiver forfeiting his property.[16]

• Police stole $6,000 in cash from Jennifer Boatright and Ron Henderson and threatened to turn their young children over to Child Protective Services if they resisted.[17]

Tenaha, Texas, is a particular hotbed of highway forfeiture activity, so much so that police officers keep pre-signed, pre-notarized documents on hand so they can fill in what property they are seizing.[18] As the Huffington Post explains, these police forfeiture operations have become little more than criminal shakedowns:

Police in some jurisdictions have run forfeiture operations that would be difficult to distinguish from criminal shakedowns. Police can pull motorists over, find some amount of cash or other property of value, claim some vague connection to illegal drug activity and then present the motorists with a choice: If they hand over the property, they can be on their way. Otherwise, they face arrest, seizure of property, a drug charge, a probable night in jail, the hassle of multiple return trips to the state or city where they were pulled over, and the cost of hiring a lawyer to fight both the seizure and the criminal charge. It isn’t hard to see why even an innocent motorist would opt to simply hand over the cash and move on.[19]

The Expansion of Asset Forfeiture Scams

Unsurprisingly, these asset forfeiture scams have become so profitable for the government that they have expanded their reach beyond the nation’s highways.

According to USA Today, “the U.S. Department of Justice received $2.01 billion in forfeited items in 2013, and since 2008 local and state law enforcement nationwide has raked in some $3 billion in forfeitures through the federal “equitable sharing” program.”[20] In fact, the Drug Enforcement Administration (DEA) has been colluding with the Transportation Security Administration (TSA) and local police departments to seize a small fortune in cash from American travelers using the very tools—scanners, spies and surveillance devices—they claimed were necessary to catch terrorists.[21]

As USA Today reports, although DEA agents have seized more than $203 million in cash in airports alone since 2006, they almost never make arrests or build criminal cases in connection to the seized cash.[22]

For instance,

• DEA agents at the Cincinnati/Northern Kentucky International Airport stole $11,000 in cash from college student Charles Clarke—his entire life savings, in fact—simply because they claimed his checked suitcase smelled like marijuana. Apart from the sniff test, no drugs or evidence of criminal activity were found.[23]

• Christelle Tillerson was waiting to board a flight from Detroit to Chicago when DEA agents stole $25,000 in cash from her suitcase, money she planned to use to buy a truck. Tillerson was never arrested or charged.[24]

• Joseph Rivers was traveling on an Amtrak train from Michigan to Los Angeles when police stole $16,000 in cash in a bank envelope—money the 22-year-old had saved up to produce a music when he arrived in Hollywood—based solely on their groundless suspicions that the money could have been associated with drugs.[25]

How does the government know which travelers to target?

Through surveillance of Americans’ domestic travel records, by profiling train and airport passengers, and by relying on a “network of travel-industry informants that extends from ticket counters to back offices.”[26] In one instance, the DEA actually promised to give a TSA security screener a reward for identifying luggage with large sums of cash: the more cash found, the bigger the reward.[27]

So now it’s not just drivers who have to worry about getting the shakedown. Any American unwise enough to travel with cash is fair game for the government pickpockets.

Asset Forfeiture by the Numbers

Unfortunately, law enforcement agencies know that it is much easier to seize private property through civil forfeiture than by charging someone with a crime. As a result, 87% of forfeitures sought by the U.S. Department of Justice are civil forfeitures.[28]

Incredibly, these asset forfeiture scams have become big business—and profitable business, at that—for the federal government and states. In 1986, the Department of Justice took in $93.7 million through forfeitures.[29] By 2014, it was taking $4.5 billion worth of property annually, an increase of over 4000 percent—an amount greater than the value of all documented cash and property lost to burglary in the same year.[30] In those states where data could be obtained, forfeiture revenues more than doubled between 2002 and 2013.[31] In 2015, the federal government seized nearly $2.6 billion worth of airplanes, houses, cash, jewelry, cars and other items under the guise of civil asset forfeiture.[32]

This explosion in such takings is not surprising because most federal and state laws give the proceeds of civil asset forfeiture to the very police that seize the property. Not only can government actors steal your property, they can then sell those assets that are rightfully yours and retain the profits.[33] By allowing law enforcement to keep the fruits of unfairly seized assets, police are encouraged to take money from citizens resulting in what has been described as “policing for profit.”[34]

Police agencies have used their ill-gotten gains “to buy guns, armored cars and electronic surveillance gear,” reports The Washington Post. “They have also spent money on luxury vehicles, travel and a clown named Sparkles.”[35]

Despite the fact that 80 percent of these asset forfeiture cases result in no charge against the property owner, challenging these “takings” in court can cost the owner more than the value of the confiscated property itself. As a result, most property owners either give up the fight or chalk the confiscation up to government corruption, leaving the police and other government officials to reap the benefits.[36]

The Fleecing of the American Public Must Stop

This fleecing of the American public is fueled by laws that give the government every advantage in keeping property unfairly taken from owners and that encourage police to seize a citizen’s property. As described by Chip Mellor of the Institute for Justice:

Civil forfeiture laws represent one of the most serious assaults on private property rights in the nation today. Under civil forfeiture, police and prosecutors can seize your car or other property, sell it and use the proceeds to fund agency budgets—all without so much as charging you with a crime. Unlike criminal forfeiture, where property is taken after its owner has been found guilty in a court of law, with civil forfeiture, owners need not be charged with or convicted of a crime to lose homes, cars, cash or other property.[37]

Civil asset forfeiture severely undermines numerous rights guaranteed by the Constitution.  It allows law enforcement to seize property without a warrant and without a prior hearing, simply by claiming the property is connected to criminal activity. And even though the government may claim a criminal offense is involved, no criminal prosecution need be brought in order for the government to keep the property. Instead, forfeiture can be obtained in a civil lawsuit that denies the property owner all of the Constitutional protections guaranteed to persons charged with a crime.[38]

Civil asset forfeiture is particularly harmful to minorities and the poor who are least able to defend their interests in forfeiture proceedings. In fact, reports show that various law enforcement agencies have seized a disproportionate amount of assets from minorities or minority neighborhoods.[39] Supreme Court Justice Clarence Thomas has pointed out “these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.”[40]

The Justice Department has been complicit in this abusive scheme, which the Trump administration refers to as a “vitally important law enforcement tool,”[41] through its determination to not only defend but expand the use of civil asset forfeiture.[42]

For example, Attorney General Jeff Sessions has reinstituted a program known as “equitable sharing” under which state and local police can turn over seized assets to the federal government for forfeiture, thereby avoiding state law restrictions on forfeiture. This is in return for 80% or more of the proceeds of the forfeited property.[43] Moreover, for the majority of seizures examined, the Justice Department has been unable to verify that the seizure had advanced or was even related to a criminal investigation.[44]

The Founding Fathers held an unwavering belief in the right of the citizenry to be protected against any abusive efforts by the government to seize their personal property. This bulwark against such illegal “takings” is enshrined in the Fourth Amendment’s prohibition on unreasonable seizures and the Fifth Amendment’s guarantee that no person be deprived of property without due process of law.[45]

By using civil asset forfeiture laws to take billions of dollars’ worth of property annually from citizens merely on the suspicion that the property has some minimal connection to criminal activity, and without any true due process being afforded the property owners, state and federal law enforcement agencies are acting in blatant disregard of the U.S. Constitution.

Lysander Spooner, a 19^th century American abolitionist and legal theorist, was right when he concluded that the government is far more disingenuous and dangerous to the rights, property and lives of the citizenry than the common criminal or highwayman. As Spooner points out:

[Unlike the government,] the highwayman … does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit…  He has not acquired impudence enough to profess to be merely a “protector”… He does not persist in following you on the road, against your will; assuming to be your rightful “sovereign,” on account of the “protection” he affords you. He does not keep “protecting” you, by commanding you to bow down and serve him; by requiring you to do this, and forbidding you to do that; by robbing you of more money as often as he finds it for his interest or pleasure to do so; and by branding you as a rebel, a traitor, and an enemy to your country, and shooting you down without mercy, if you dispute his authority, or resist his demands… In short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave.[46]

The government’s practice of policing for profit must stop.[47]

The following Constitutional Q&A explains how and why the government uses civil asset forfeiture, the legality of the practice, what happens once the police seize an individual’s assets, and what the American people can do to guard against such illegal takings.

Q: What is Civil Asset Forfeiture?

A: Civil asset forfeiture is a government practice in which law enforcement agents seize private property by claiming that they “suspect” the property is connected to criminal activity, usually the sale of drugs or other contraband.[48] In many cases, the government can keep the property regardless of whether they prove that you committed any crime and give the proceeds of the property to the law enforcement agency that seized the property. These seizures can happen during any encounter with police.

Q: What kinds of assets can the government take?

A: Civil asset forfeiture allows the government to take money, cars, securities, land and virtually any kind of property if it suspects the property may be related to criminal activity.[49] Property can be seized if the government claims it was used to commit a crime (such as a boat used to smuggle drugs into the country),[50] or that it was obtained as a result of criminal activity.[51] It is not required that the owner be charged with or even accused of a crime before the property is taken from him. Once taken, the government is allowed to keep the property and money unless and until someone with an interest in the property successfully challenges the forfeiture in legal proceedings.[52]

Q: What is the purpose of civil asset forfeiture?

A: Originally, forfeiture was intended to deprive criminals of the things they used to commit offenses. Smugglers or pirates were the targets and forfeiture laws were used to seize their ships or cargos to stop their unlawful acts.  Because the party responsible for the crime was often in a foreign land and not within the jurisdiction of the courts, the law provided that a forfeiture lawsuit was against the property, not the person.  This also allowed the lawsuit to be civil in nature and not subject to the special protections afforded persons charged with crimes. Forfeiture laws were originally applied narrowly, typically limited only to customs matters and piracy.[53]

Q: Why do we still have civil asset forfeiture?

A: Forfeiture is now “presented as a way to cripple large-scale criminal enterprises by diverting their resources,”[54] but modern forfeiture proceedings also are used to punish owners who use property for criminal purposes.[55] Even though the purpose of asset forfeiture is now largely to punish persons, the government is still allowed to proceed directly against the property in a civil suit instead of against the property owner.[56] Furthermore, by allowing the government to keep the proceeds of forfeiture, law enforcement officers are incentivized to continue utilizing the practice in order to augment law enforcement department budgets.[57]

Q: Doesn’t the U.S. Constitution protect me from the police taking my property?

A: The Fourth Amendment protects persons from unreasonable searches and seizures and generally requires that police have a judge-issued warrant to search and seize property.[58] Because these are civil proceedings against the property itself, however, civil asset forfeiture allows the government to circumvent the Fourth Amendment’s protections. In most jurisdictions, all the police need to do in order seize most types of property is to assert that they have probable cause to believe that the cash, car or other property is connected to a crime that permits civil forfeiture.[59] Once the property is seized, civil forfeiture proceedings can be brought to transfer ownership to the government.  In order for the true owner to keep the property, he must file a claim to the property, which is time-consuming, costly and often requires hiring an attorney.[60]

Q: Does this mean the police really take my property without proving I have committed a crime?

A: Yes. Not only may the government permanently deprive the someone of his property without proving he is guilty of a crime, they do not need to prove a crime even occurred before seizing the assets. The Supreme Court has held that the Constitution does not prohibit civil forfeiture of property even though the owner is innocent of any crime and was unaware that the property was used in connection with criminal activity. [61] Some forfeiture laws, however, do allow owners to defeat a forfeiture claim by showing they were innocent and unaware of any criminal activity.

Q: If I’m innocent until proven guilty, how can the police take my property?

A: Unlike criminal forfeiture, where property is taken after its owner has been found guilty of a crime beyond a reasonable doubt in a court of law, civil forfeiture is a lawsuit against the property itself.  Property owners need not be charged with or convicted of a crime in order to lose their homes, cars, cash or other property.[62] And because the lawsuit is civil and not criminal, there is no constitutional right to a jury or a requirement that the grounds for the forfeiture be proven beyond a reasonable doubt.[63] Thanks to the archaic principles underlying civil forfeiture, your property is guilty until you prove it innocent.[64]

Q: What is the difference between civil and criminal forfeiture?

A: Criminal forfeiture is a punishment that is imposed after a person is convicted of a criminal offense and as a part of a criminal sentence.[65] If allowed by a statute, a court may order a convicted person to forfeit money or other property obtained as a result of the criminal acts. Civil forfeiture, does not require any proof of guilt other than a showing of probable cause, if even that. The government is also able to take property through “administrative forfeiture,” by which an agency can start the forfeiture process simply by providing notice to any known owners of the property (usually limited to assets worth less than $500,000) and then publishing notice of the intended forfeiture in a newspaper. If no one steps forward to file a claim to the property, the forfeiture is complete and it belongs to the government.[66] The upshot of this distinction is that in criminal proceedings, defendants must be proven guilty beyond a reasonable doubt and have the right to an attorney and trial by a jury. None of these constitutional protections apply to civil asset forfeiture. Whether the court treats a forfeiture case as civil or criminal has great implications for whether a right to a jury trial exists and what standard of proof the government is required to meet.[67]

Q: Where am I at risk for civil asset forfeiture?

A: Any place and at any time. Police have been known to use a broad array of surveillance tactics to profile, identify, and target people who might be traveling with a significant amount of cash or possess property of significant value.  Police can then arrange an encounter in a traffic stop, on a train, in an airport, in public, or on private property.[68] Once the cash or valuable property is found, a vague claim of connection to drugs or other criminal activity can be leveled by the police and the forfeiture nightmare begins.[69] In some jurisdictions, police use traffic stops in forfeiture operations that are little different from a criminal shakedown, using threats of criminal charges to force citizens to give up their money or property and allow it to be forfeited.[70] Moreover, at airports, Drug Enforcement Agents and Transportation Security Administration agents can use traveler information to target and seize cash for forfeiture while rarely arresting or charging the owner with any crime.[71]

Q: If the police take my property, how can I get it back?

A: While the exact procedure for challenging a forfeiture depends on what law is the being used to take the property, the process usually involves the filing of some claim to the property with an agency or court.  However, this is just the first step. Going the further step of proving the property is not subject to forfeiture is complicated and time consuming. Forfeiture cases are typically legally complex and difficult for individuals to win—some civil asset forfeiture proceedings took a year or more to navigate according to a recent study by the Institute of Justice.[72] Property owners often choose not to fight the forfeiture because it costs more to challenge the government than the property is worth.[73] According to one inquiry, only one in five victims of civil asset forfeiture disputed the seizures, but of those, over 40% had their property returned, indicating the tremendous error rate in forfeiture proceedings.”[74]

Q: What happens to property after it is forfeited?

A: The money that is obtained by forfeiture, either directly or as the result of the sale of personal and real property, is almost always returned to the law enforcement agencies that participated in the seizure of the property. Only seven states and Washington, D.C., block law enforcement access to forfeiture proceeds.[75] All remaining jurisdictions allow law enforcement to keep at least 45 percent of the value of all forfeited property.[76] The fact that law enforcement agencies directly profit from the fruits of civil asset forfeiture is no doubt responsible for the explosion in its use and it abuse by police. As the Institute for Justice summarized it:

[C]ivil forfeiture laws in most states and at the federal level give law enforcement agencies a financial stake in forfeitures by awarding them some, if not all, of the proceeds.  The financial incentive creates a conflict of interest and encourages the pursuit of property instead of the pursuit of justice.[77]

If this were not bad enough, reports indicate that there is rampant misuse of forfeiture proceeds by law enforcement for purposes that do not further public safety, including purchasing illegal drugs, prostitutes, luxury vehicles, catering, and a clown named Sparkles.[78]

Q: How common is civil asset forfeiture?

A: Civil asset forfeiture has increased dramatically since 2001. Between 2001 and 2014, “deposits to the Department of Justice and Treasury forfeiture funds exploded by more than 1,000 percent.”[79]

Q: What can I do to protect myself against civil asset forfeiture?

A: What we are witnessing right now is a growing tension between the prohibitions on government overreach established by America’s founders and the present-day government’s blatant disregard for the rule of law.

While the Constitution—particularly the Fourth and Fifth Amendments—clearly guard against unreasonable or excessive seizures of property by government agents without due process of law, these protections have been severely eroded by the courts and the legislatures. What little hope remains for ending abusive civil asset forfeiture schemes by government agencies rests largely with the citizenry and their willingness to become engaged, informed and actively involved—especially at the local level—in grassroots efforts to demand transparency, accountability and reform.

Become informed about the laws and policies in your state regarding civil asset forfeiture. What are your local police practices when it comes to asset forfeiture? How are forfeiture funds used within your own localities? What oversight is provided? Is there a profit incentive driving what gets seized and how funds are distributed? What recourse do citizens have (locally)? At the very least, contact your local representatives and urge them to reform the laws to protect the constitutional rights of property owners in forfeiture proceedings, to end “policing for profit,” and to forbid state and local officers from participating in “equitable sharing” with the federal government.

Reform takes time, and reforming a corrupt system requires a significant amount of pushback from the citizenry. Even then, it is an uphill battle. In the meantime, be conscientious about what possessions you carry with you in public and the risks inherent in doing so. When traveling, avoid carrying large sums of cash or expensive property.  As pointed out above, the government targets individuals they believe are carrying excessive cash and consider it inherently suspicious. Before you loan a vehicle or car to another person, be aware of any suspicious circumstances indicating the borrower may intend to use it for illegal activity.

If your cash or property is seized, insist on being informed by police (in writing, ideally) on what grounds they are taking your property: this may prevent them from using a different reason in court.  Keep and read carefully any paperwork you get regarding the seizure and forfeiture.  These papers should inform you of what you need to do to reclaim your property and when you need to take those actions. Because forfeiture can be a complicated process and reclaiming your property can be difficult, legal assistance is advised.

Victims of forfeiture actions do have a right to be heard and to retain an attorney to help them in fighting against government oppression.

---

Defending your rights

The Rutherford Institute stands ready to defend your rights if they are violated by the government. For over a quarter century, we have assisted, without charge, persons deprived of their liberty by government officials.

Should you have further questions or need legal assistance in exercising your constitutional rights, please contact the Legal Department at legal@rutherford.org.

---