Civil Asset Forfeiture Part One: How Robbery is Legalized
In 2013, George Reby was traveling through Tennessee when he was stopped by law enforcement for speeding. The officer asked Reby for permission to search his vehicle, and upon receiving it, seized $22,000 in cash belonging to the driver. The officer suspected the money was being used to buy drugs, as he later confirmed in an affidavit, saying,“common people do not carry this much U.S. currency.”
But Reby protested that he was intending to purchase a car in Nashville, and even pulled out his computer with the eBay listing, which the officer omitted from his report. All of the money was whisked away by the police, and no criminal charges or investigations were ever carried out against Reby. In the interviews that followed, he stated, “If somebody told me this happened to them, I absolutely would not believe this could happen in America…You live in the United States. You think you have rights, and apparently, you don’t.”
This is not an isolated incident, however. Similar cases have been reported for decades, such as that of Alda Gentile, a woman who was pulled over for speeding in Georgia and had $11,530 intended for house hunting in Florida confiscated, or Joseph Rivers, a young musician traveling from Detroit to Los Angeles in pursuit of a career who was stopped for no reason by the DEA and had $22,000 confiscated. Rivers was the only African-American in his section of the train, and also the only person to be approached by the DEA. This practice, known as civil asset forfeiture, is expressly permitted by law and has been for decades.
Commonly referred to as “policing for profit” and “highway robbery,” civil asset forfeiture is a law enforcement tool used by both state police and federal agencies like the FBI, DEA, and DHS intended primarily to combat organized crime and drug kingpins. It allows the government to seize a person’s money or property based on just the assumption that it is somehow related to illegal activity. No charges have to be carried out against the person; in legal terms, the charges are in rem, which means they are carried out against the property itself. As absurd as it sounds, the government is literally prosecuting an inanimate object. This results in some very strange court case names, e.g. United States v. $10,000. In Joseph Rivers’ case, the DEA released a statement reflecting this oddity, saying, “We don’t have to prove that the person is guilty. It’s that the money is presumed to be guilty.”
Because the charges are pursued in civil court, the plaintiff only needs a preponderance of the evidence to prove guilt, which is a far lower standard than the, “beyond a reasonable doubt,” standard used in criminal court. Whichever of the several definitions you use, the preponderance of the evidence is extremely subjective, so it allows the DEA to steal Rivers’ cash simply because he had a one-way ticket, possessed a large amount of money, and looked suspicious. Sometimes the police use drug-sniffing dogs on the cash they intend to seize, despite the fact that 90% of U.S. banknotes contain traces of cocaine.
Once the property is seized, the burden of proof flips, and it becomes the person’s, or claimant’s, duty to prove that the property is innocent. But because the person is technically not the defendant, they don’t have the right to a public defender as enshrined in the Constitution. As a result, most victims of civil forfeiture either cannot afford to hire an attorney and take the time off work to go to court, or the legal costs just outweigh the value of the property being seized. A report by the Institute for Justice discovered that about 29 billion dollars in cash and property were seized by the federal government between 2001 and 2014. But this does not account for all of the seizures conducted by state and local police, and few states had any requirements to report details on their civil forfeitures during that time.
"The quality of the data ranged from useless to pathetic…The ability to do any basic or simple analysis to know what is going on is basically impossible,” said Dick Carpenter, a co-author of the report.
Another report by the Washington Post gathered data from Justice Department seizure records, court cases, and interviews with police, prosecutors, and motorists. Despite the lack of available data, the report can be used as a decent sample that reveals how often the government gets away with this legalized theft. Only about 17% of civil forfeitures were ever challenged in court, and just 40% of that 17% resulted in the person receiving their property back. In 40% of those cases, the entire legal process lasted more than one year, and the claimant often had to sign an agreement saying they would not sue the police afterward.
Another tactic police departments use to ensure they get to keep what they steal is to target poor, often minority communities. A report from the Nevada Policy Research Institute (NPRI), a conservative think tank, analyzed the geographical distribution of civil forfeitures by the Las Vegas Metropolitan Police Department during 2016. Of the 1.9 million dollars in asset revenue, 2/3 came from 12 zip codes that were disproportionately impoverished and non-white. Additionally, 94% of the seizures were conducted on suspicion of drug offenses, which we know is easy to fabricate and often unjustified even when true. Another report by the ACLU in 1999 analyzed discriminatory traffic stops by the Illinois State Police. While Hispanics comprised less than eight% of the Illinois population and took fewer than three% of the personal vehicle trips, they comprised approximately 30% of the motorists stopped by ISP drug interdiction officers for discretionary offenses such as failure to signal a lane change or driving one to four miles over the speed limit. But when searches were conducted, drugs were found more often in vehicles driven by Whites than Hispanics. Additionally, while African Americans comprised less than 15% of the Illinois population and took 10% of the personal vehicle trips, they comprised 23% of the searches. In District 4, they comprised 24% of the local driving-age population but were the targets of 63% of the searches.
It isn’t just cash that is seized; any property linked to illegal activity is also fair game. In 2008, the Detroit police raided the Contemporary Art Institute of Detroit’s monthly “Funk Night,” where 130 art-lovers danced to music and a disco ball until 2 a.m., when some uninvited guests arrived. Police officers dressed in black paramilitary uniforms with masks and flashlight-mounted shotguns stormed inside, forced everyone to the floor, searched them, gave them each a ticket for loitering in a place of illegal occupation, then impounded over 40 cars parked outside the party. According to witnesses, those who did not get on the floor quickly enough were kicked down, and some people in the outdoor area had to lie with their faces in the mud. To retrieve their vehicles, each person had to pay at least $900, adding up to a collective cost of over $35,000. This fascist insanity took place simply because the organization was allegedly not licensed to host a dance party, though that was the only justification. The real motivation behind the raid was probably to make a profit for the police department.
But it doesn’t end there. What, you thought an innocent person’s cars would satisfy the appetite of the state-burglars? Wrong. In Philadelphia in 2012, police in riot gear broke down the door of a house belonging to 68-year old Mary Adams and 70-year old Leon Adams while they were sitting at the kitchen table eating breakfast. They informed the couple that they had ten minutes to pack up and leave the house, which they had owned since 1966, forever. The justification? Their 31-year old son, who had been helping take care of his father suffering from pancreatic cancer and a recent stroke, sold $20 worth of marijuana from the house to a police informant. Upon barging into the home, the SWAT team arrested the son, and one officer said to him, “Apologize to your father for what you’ve done.”
It cannot be articulated how audacious the police’s presumption is here, to act as if the sale of $20 worth of a drug that shouldn’t be illegal to begin with, and not the seizure of their entire home is to blame for their misery.
There are tens of thousands of cases like this happening all over the country, with hundreds of millions of dollars in cash, cars, houses, and whatever else looks appealing being stolen from innocent civilians every year. Once an asset is seized by the police, they auction it off to the highest bidder, then pocket the cash for themselves. Because most states allow forfeiture revenue to flow directly into police department funds, police are incentivized to put profit over justice, which has led to some rather nefarious law enforcement practices.
In 2014, Harry S. Connelly Jr., the city attorney of Las Cruces gave a seminar to local officials on civil forfeiture. He called them “little goodies,” then described how officers in his jurisdiction could not wait to seize one man’s vehicle outside a bar.
“A guy drives up in a 2008 Mercedes, brand new. Just so beautiful, I mean, the cops were undercover and they were just like ‘Ahhhh.’ And he gets out and he’s just reeking of alcohol. And it’s like, ‘Oh, my goodness, we can hardly wait.’
He then continues to give instructions on how to size up someone’s possessions.
Don’t bother with jewelry (too hard to dispose of) and computers (“everybody’s got one already”), Do go after flat screen TVs, cash and cars. Especially nice cars.
Sean Mcmurtry, the chief of the forfeiture unit in Mercer County, New Jersey, made equally unnerving comments at the seminar. His handling of a case is determined by department wishlists. Speaking to law enforcement officials, he said, “If you want the car, and you really want to put it in your fleet, let me know — I’ll fight for it. If you don’t let me know that, I’ll try and resolve it real quick through a settlement and get cash for the car, get the tow fee paid off, get some money for it.”
This perverted incentive doesn’t just corrupt state and local law enforcement, however. Federal agencies like the ICE are also affected, as is apparent from an “Asset Forfeiture Handbook” written in 2010 and obtained by The Intercept in 2017. The guide instructs officials “not to waste instigative time and resources” on what it calls “liabilities,” which just means property that isn’t valuable enough to profit from seizing.
“As a general rule, if total liabilities and costs incurred in seizing a real property or business exceed the value of the property, the property should not be seized.”
A large section of the handbook discusses how to determine the value of a property, and even instructs agents to obtain a warrant so they can search the house, then bring a real estate appraiser with them to help evaluate it. They should also research the home’s sale history, the market conditions, and possible liabilities. Robert Gifford, who spent over a decade as an assistant attorney in the Justice Department, said in an interview,
“I had one case where they wanted to do all these forfeitures, and I said absolutely not. I said I’d support it as long as it was not a retired mom and pop running a little flea market table on the weekend. But that was exactly who they were going after.”
A survey of 770 police managers and executives revealed that 40% considered civil asset forfeitures to be a “necessary budget supplement.” This confirms the widespread motive for police departments to prioritize profits over justice. The result is that the police over-enforce minor offenses where forfeiture is more probable, such as harmless drug possession or sale, rather than more pressing areas of concern, such as the thousands of untested rape kits that could lead to more meaningful convictions. In states where law enforcement is allowed to keep a larger share of the forfeiture proceeds, drug arrests constitute a significantly higher percentage of all arrests. The data is quite clear; this policy inflames corruption in our police and makes good cops turn bad.
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