Policing For Profit: When The Government Takes Your Property & Makes You Pay To Get It Back
The government can seize your property without a criminal conviction. Even if you get it back, the cost of fighting for what’s yours can leave you financially devastated.
Imagine losing your car, your savings, or the money you need to pay rent or keep your business running.
Not because you’ve been convicted of a crime. Not even because you’ve been charged with one. But because the government suspects your property may be connected to criminal activity by someone else.
Now imagine having to hire a lawyer, navigate a complicated legal system, and spend months or years fighting to recover what belongs to you.
Eventually, the government gives up and returns your property.
You won. Or did you?
If you’ve spent thousands of dollars defending yourself and the government doesn’t have to reimburse you, getting your property back may be a hollow victory.
That’s one of the fundamental problems with civil asset forfeiture, a legal practice that allows government authorities to seize money, vehicles, homes, and other property suspected of being connected to criminal activity without first securing a criminal conviction.
The government has enormous resources to pursue these seizures. Ordinary Americans often don’t have the resources to fight them.
And in a system where the cost of defending your property can exceed the value of what was taken, the government doesn’t necessarily have to win in court to leave you worse off.
Sometimes, simply forcing you to fight is enough.
He Got the Money Back. The Government Left Him With the Bill.
Attorney Richard Ross learned firsthand how expensive it can be to challenge a government seizure.
Ross became the victim of a fraud scheme involving money transferred into an account he maintained to safeguard client funds. Federal authorities suspected that some of the money was connected to criminal activity. But rather than limit the seizure to those funds, the government took the entire account—including more than $1.2 million that officials acknowledged appeared unrelated to the suspected fraud.
Ross wasn’t accused of wrongdoing. Nevertheless, he spent more than a year and over $100,000 in attorneys’ fees trying to recover the unrelated money. Eventually, the government abandoned its forfeiture action and returned the funds.
That should have been the end of the ordeal.
Instead, Ross found himself facing another costly fight.
Although the government had returned the money, it refused to reimburse the legal expenses Ross incurred defending the funds against forfeiture. The government’s reasoning rested on a technical distinction: because it had voluntarily dismissed the case before a judge ruled against it, Ross supposedly hadn’t won in the way the law requires.
A federal district court agreed. So did the U.S. Court of Appeals for the Second Circuit.
Ross has now asked the Supreme Court to review that decision.
In a joint amicus brief, The Rutherford Institute and the Goldwater Institute are urging the justices to hear the case and enforce the financial safeguards Congress established for people who successfully challenge government forfeitures.
The question is straightforward: Should the government be allowed to escape paying legal expenses simply by dropping a case before it loses?
How Can the Government Take Property Without a Criminal Conviction?
For most Americans, the idea that the government can take their property without first proving they committed a crime seems to turn the justice system upside down.
Yet that is a defining feature of civil asset forfeiture.
Unlike criminal forfeiture, which generally follows a conviction, civil forfeiture is directed against the property itself. The government alleges that the property is connected to illegal activity and seeks a court order allowing it to keep the property.
The owner may never be charged with a crime.
That doesn’t mean the government automatically gets to keep everything it seizes. Federal law provides procedures for challenging forfeiture, requires the government to prove its case in contested judicial proceedings, and recognizes defenses for innocent owners. But those protections can be difficult and expensive to exercise.
Consider what happens when police seize someone’s vehicle.
The owner may need that car to get to work, take children to school, or care for a family member. Losing it for months can have consequences that go far beyond the vehicle’s monetary value.
Or consider a small business whose operating funds are seized. Even if those funds are eventually returned, the business may struggle to pay employees, cover expenses, or stay open.
For someone with limited savings, the cost of hiring a lawyer can be prohibitive.
And when legal expenses threaten to exceed the value of the seized property, walking away may seem like the only practical choice.
That creates a troubling reality: a person can have the legal right to challenge a seizure without having any realistic ability to do so.
How Civil Forfeiture Became a Financial Incentive
Civil forfeiture has existed in American law for centuries, particularly in customs and maritime enforcement, but the practice expanded dramatically during the War on Drugs, when federal and state governments increasingly used forfeiture laws to target money and property believed to be connected to drug trafficking.
The goal was to deprive criminal enterprises of the resources needed to operate.
Yet the system also created financial incentives for law enforcement agencies to seize and retain valuable property. In some circumstances, forfeiture proceeds can be used to support law enforcement activities. Critics have long warned that allowing government agencies to benefit from seized property creates an incentive to pursue forfeitures aggressively, even when the evidence is questionable.
The danger is not merely that the government might take property it has no right to keep.
It’s that government agencies may have little financial incentive to exercise restraint when owners must bear the expense of fighting back.
And the effects are especially troubling for people who cannot afford a prolonged legal battle. A wealthy owner may be able to spend years contesting a seizure. Someone living paycheck to paycheck may have little choice but to surrender the property.
When a Legal Safeguard Becomes a Loophole
By the late 1990s, concerns about abusive forfeiture practices had grown so widespread that Congress stepped in.
The Civil Asset Forfeiture Reform Act of 2000, commonly known as CAFRA, was intended to make federal forfeiture procedures fairer and provide greater protection for innocent property owners. One of its safeguards addressed a particularly practical problem: the cost of getting seized property back.
Congress provided that property owners who “substantially prevail” in civil forfeiture proceedings may recover reasonable attorneys’ fees and certain litigation expenses.
The purpose was not simply to help people recover what the government had taken. It was also to prevent a successful challenge from leaving them financially ruined. That protection gives property owners a greater ability to defend themselves. It can also discourage the government from pursuing weak forfeiture cases.
But the dispute in Ross v. United States exposes a serious question about how that safeguard works. The government argued that because it voluntarily dismissed its forfeiture case before a judge entered a favorable judgment for Ross, he had not qualified for attorneys’ fees. The lower courts agreed.
The Rutherford Institute and the Goldwater Institute argue that this interpretation ignores the ordinary meaning and purpose of Congress’s words.
Ross challenged the forfeiture. The government abandoned its claim. The unrelated funds were returned.
In any practical sense, Ross accomplished what he set out to do.
Yet under the lower courts’ interpretation, that may not be enough. And that creates a perverse incentive.
Suppose the government seizes someone’s property and pursues a forfeiture case that becomes increasingly difficult to defend. If it continues litigating and loses in court, it may be required to pay the owner’s legal expenses. But if it drops the case just before the court rules, it may avoid that financial responsibility altogether.
The owner gets the property back in either scenario. The legal bills are another matter.
As The Rutherford Institute and the Goldwater Institute warn, a rule that allows the government to avoid attorneys’ fees through voluntary dismissal can encourage weak forfeiture actions by insulating the government from the costs it imposes on property owners.
What About the Constitution?
Civil asset forfeiture raises constitutional concerns that reach beyond the specific question in Ross’s case.
The Fifth Amendment prohibits the government from depriving people of property without due process of law. The Eighth Amendment protects against excessive fines, including forfeitures that qualify as punishment.
Yet the practical ability to exercise those protections depends on whether people have a meaningful opportunity to challenge the government.
If recovering a car requires spending more than the car is worth, how meaningful is that opportunity? If someone must spend years in court simply to regain access to savings, how much protection has due process really provided? And if the government can abandon a weak case without bearing the financial consequences, what incentive exists to avoid questionable seizures in the first place?
These concerns have also reached the Supreme Court.
In Culley v. Marshall (2024), the Court considered whether due process required a separate preliminary hearing for owners seeking the return of vehicles seized for civil forfeiture. The majority ruled that a timely forfeiture hearing satisfied the procedural requirement at issue without the need for a separate preliminary hearing.
But in a concurring opinion, Justice Neil Gorsuch, joined by Justice Clarence Thomas, raised broader questions about modern civil forfeiture practices, including the financial incentives associated with them.
Justice Thomas had previously expressed concerns about the widespread and profitable nature of modern forfeiture in Leonard v. Texas (2017).
These concerns underscore a larger constitutional principle: government power must be accompanied by meaningful safeguards against abuse.
A right that ordinary people cannot afford to defend offers little protection when government officials overstep their authority.
When Getting Your Property Back Isn’t Enough
The Supreme Court is not being asked in Ross v. United States to decide whether civil asset forfeiture itself is constitutional.
The narrower question is whether someone who successfully recovers seized property after the government voluntarily dismisses its case qualifies for attorneys’ fees under the federal reform law. But the implications extend well beyond that technical question.
At stake is whether the government can use the expense of litigation to its advantage, leaving people financially worse off even after its forfeiture efforts fail.
For Richard Ross, that has meant more than $100,000 in legal expenses—and additional costs incurred fighting to recover those fees.
For someone without Ross’s resources or legal experience, the same kind of seizure could mean losing a livelihood, a home, or the ability to support a family.
That’s why financial accountability matters.
The government should not be free to pursue questionable seizures, force people into costly court battles, and then escape responsibility simply by abandoning its case when defeat appears likely. Getting your property back should mean more than recovering what was taken. It should mean having a meaningful remedy when the government gets it wrong.
Constitutional rights should not be reserved for those who can afford the cost of defending them.
Ross v. United States
Article posted with permission from John Whitehead
