The growing outcry over police confiscation

  • 17 September 2014
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A police officer in front of his car door. Image copyright Thinkstock

Ming Tong Liu had a suitcase with $75,195 (£46,000) he was going to use to buy a restaurant. For Mandrel Stuart it was $17,550 in proceeds from a barbecue restaurant. Benjamin Molina was going to use $18,000 to buy a car. Jose Jeronimo Sorto had $28,500 in church funds for a land purchase in El Salvador and a new trailer in North Carolina.

Each of these men was driving in the US with sizable amounts of cash when they were pulled over by police for minor traffic infractions. Mr Liu, for instance, was going 10 miles over the speed limit. Mr Stuart's car's windows were too dark.

Each of these men had the money in their possession confiscated by police despite not being charged with a crime. It was enough that the officers suspected the money was tied to an illegal activity.

It's a process called civil forfeiture, and it is the subject of a recent three-part series in the Washington Post, which looked at these four cases and hundreds of others in which law enforcement confiscated property based solely on reasonable suspicion. The owners are then presented with an often long, difficult legal process to go about reclaiming what was taken.

The numbers, the Post reports, are truly astounding. In 2012 around $4.6bn (£2.8bn) in cash and property were confiscated. The practice has prompted a closet industry of businesses with names like Desert Snow that specialise in advising law enforcement on how to most effectively conduct roadside seizures.

Although drawn from British admiralty law, where ships could be confiscated to pay for damages, civil forfeiture in the US only really became an issue in the last 30 years as the government ramped up its efforts to combat drug trafficking.

Federal law, as well as the laws in 42 states, was written to allow law enforcement to confiscate property - cars, planes, houses, businesses, currency - suspected to be tied to illegal activity. They could then use the assets for… well, pretty much whatever they want.

According to the Institute for Justice, which is leading a class-action suit against the city of Philadelphia's forfeiture programme, police have used the money for "better equipment, nicer offices, newer vehicles, trips to law enforcement conventions and even police salaries, bonuses or overtime pay".

It creates a perverse incentive, they say, for law enforcement to confiscate first and ask questions later.

"This pecuniary interest and the other advantages granted to the government under civil forfeiture laws have distorted law enforcement priorities, altered officer and prosecutor behaviour and led to a number of police and prosecutorial abuses," writes Scott Bullock in the foreword of the institute's 2010 report on the practice, Policing for Profit.

Civil forfeiture law is based on the premise that inanimate objects can be held responsible for crimes. A robbery getaway car, for example, can be confiscated by the government even if the perpetrators are never caught or even identified.

As the Deseret News editors note, this leads to "strange cases with titles like 'State of Texas v one 2004 Chevrolet Silverado'".

The legal standards in cases like these is substantially less stringent, as well. An individual can be criminally convicted only if guilt is proven "beyond a reasonable doubt". For a piece of property all that is required is a "preponderance of the evidence".

More than that, however, the burden of proof lies with the owner, not the government. Once the government has confiscated property, it's up to the individual to convince a court to give it back - often requiring time and costly legal representation to successfully do so.

"If your find yourself embroiled in a forfeiture case and you can't afford a lawyer, you have no recourse," the Deseret News editors write. "You're also very likely to lose."

According to the Post's report, only one-sixth of seizures studied since 2001 were challenged in court:

"In 41 percent of cases- 4,455 - where there was a challenge, the government agreed to return money. The appeals process took more than a year in 40% of those cases and often required owners of the cash to sign agreements not to sue police over the seizures."

The federal government also often teams up with state law enforcement through a process called equitable sharing. Local police use federal law to confiscate property, then they give 20% of the proceeds to the federal government and keep the rest for themselves.

Government officials have a decidedly different view, of course.

George D Mosee Jr, Philadelphia's deputy district attorney, tells Slate's David Weigel that critics don't think of the crime that's prevented through the civil forfeiture process.

"Pimps who could have climbed back into their cars watched those cars be sold off," Weigel writes. "Drug dealers who otherwise could have re-established home bases were deprived of them."

"One of the things I've heard is that they believe that these are victimless crimes," Mosee tells Weigel.

"I would point out that there are always victims. They are just not readily identifiable victims. If you live next door to a crack house, or a house that's being used as a weed store, then they're victims."

But stories about civil forfeiture have been popping up in the mainstream media for years now. In August 2013, the New Yorker's Sarah Stillman wrote an 11,000-word article with its own collection of angry, frustrated citizens who were battling the government for return of the property and money.

She interviewed an elderly couple in West Philadelphia who were threatened with eviction from their home because their son made several $20 drug sales to a police informant from their front porch.

What's different now, however, is that a growing chorus from both the left and the libertarian right are calling for change.

"With the generally pro-government power Washington Post and the consistently pro-liberty Institute for Justice both attacking civil asset forfeiture, perhaps we're at a turning point," writes George Leef in Forbes.

Following the police shooting of an unarmed black teen in Ferguson, Missouri, libertarians and liberals expressed outrage at what they saw as an overly militarised police force abusing protestors. It's this sort of across-the-political-divide criticism that some view as sowing the seeds of change.

"From a political standpoint there's something for everyone to hate about the practice," writes the Washington Post's Christopher Ingraham. "Liberals note that it disproportionately affects poor and minority citizens, while conservatives are inclined to see it as a gross overreach of state power."

In late July Congress began considering efforts to reform forfeiture laws by requiring the government to prove a greater connection between property and a crime and proof that the owner knew the property was being used for criminal activity.

"Our constitutional framework emphasizes the need to uphold individual rights above all," Michigan congressman Tim Walberg, the House of Representative bill's author, writes in the Washington Post. "We should not accept a system in which Americans must live in fear that their property could be seized by those whose chief mission should be to serve and protect."

Growing public awareness and media criticism of the practice may not translate into legislative action, however. As with previous efforts, the bills will face strong opposition from law-enforcement groups, the Post reports. The website gives Mr Walberg's measure only a 2% chance of being enacted.

With asset forfeiture the old saying is particularly true. Follow the money.