The Patriots

by Hannah Cox & Brad Polumbo

Civil asset forfeiture is so unethical that most people won’t believe it’s true.

Did you know police steal more from Americans every year than burglars do?

Civil asset forfeiture (CAF) is a legal practice so bad and so unethical that most people won’t believe it’s true until they read up on it. But under this system, police are allowed to take your property if they even just suspect you of a crime (No, not charge you with a crime. No, not convict you for a crime. Suspect). And they basically just get to keep it unless you have the ability (i.e. the funds) to challenge them in court and prove your innocence.

It’s a total perversion of our Constitution, which is supposed to ensure individuals are innocent until proven guilty and which places the burden of that proof on the accuser (the state).

Recently, Vera and Apollonia Ward had a run-in with the CAF system. The women run a successful dog-breeding business and sent $17,500 via Fedex to purchase two additional dogs. But the San Joaquin County Sheriff’s Office seized the funds and accused the women of drug-trafficking. Never mind the fact that they had all the documentation needed to back-up their story, never mind the fact that police had no evidence whatsoever of their involvement in the drug-market.

“To me, it felt like being treated like a criminal, even though you’re not, it makes you question everything,” Vera said. “They tried their hardest to intimidate us, and to say that we’re basically putting our freedom on the line: ‘Give us this money, we’ll make it go away—or put your freedom on the line for it,” Vera continued.

But the women wanted to fight. Fortunately, they got in touch with pro-bono, constitutional litigators at the Goldwater Institute in Arizona who agreed to take on their case. And within a few months, the government had to return the money.

But this is their game. Police regularly use CAF to bully people out of their money and other property, and they mostly get away with it because (without pro-bono attorneys) the average person can’t afford to fight the government. The government has endless, tax-payer funded resources at its disposal, and its attorneys can easily run up the clock for those attempting to pay a defense attorney by the hour to get their money back. Police then get to keep these funds and add them to their budget much of the time.

CAF is not only a disgustingly unconstitutional law, it also leads to really corrupt police behavior. When police get to profit off the property they discover on people just because they merely suspect them of a crime, they are far more apt to behave like road pirates—targeting and profiling certain kinds of cars and finding reasons to search people and their cars. They should be focusing their time on solving and preventing violent crimes, but instead, we see a vast amount of their resources go to these endeavors instead.

All of this, unsurprisingly, traces back to the War on Drugs. Politicians and police argue that police need this authority to stop high-profile drug lords and their drug trafficking operations. It’s a bogus argument of course. The vast majority of these seizures were for less than $1000 and against people who were never even charged with a crime.

Bottom line, police should never be able to take a person’s property until they have been convicted of a crime. There’s really no ethical or constitutional if, ands, or buts about it. CAF needs to be outlawed at both the federal and state level, and you should pay close attention to the police, District Attorneys, and other politicians that benefit from this system working to keep it in place.

Litigators at places like The GoldWater Institute are heroes fighting the bad guys. Ironically, that’s what we pay the police to do.

 

Nick Sibilla , Contributor

 

In a major win for private property rights, a federal judge ruled that Indiana can no longer seize vehicles under its controversial civil forfeiture laws, which allow police to confiscate property without filing criminal charges. Judge Jane Magnus-Stinson ruled that Indiana's laws were unconstitutional because they failed to provide a timely hearing for the property owner to contest the seizure.

The decision comes just days after Hoosier lawmakers held a summer study committee to discuss forfeiture reform, and less than a month after U.S. Attorney General Jeff Sessions announced a new policy to expand police seizures nationwide.

The case began last September when an officer with the Indianapolis Metropolitan Police Department pulled over Leroy Washington and found a small amount of cannabis. Police charged Washington with dealing marijuana and seized his car.

But Washington fought back. With help from Jeff Cardella, a criminal defense attorney and law professor at Indiana University, he filed a federal class-action lawsuit last November on behalf of other owners whose cars were held by law enforcement in Indianapolis. Between November 2016 and February 2017, those agencies seized at least 169 vehicles, or 11 cars per week on average. After he filed his lawsuit, Washington was able to recover his car, though he was still able to represent the class of owners. 

The lawsuit claimed that Indiana’s forfeiture laws violated the car owners’ right to due process, as guaranteed by the Fifth and Fourteenth Amendments. In Indiana, once property is seized, law enforcement can take up to 180 days to file a forfeiture complaint, i.e. a lawsuit to permanently confiscate the seized property. If the owner demands their car back, the deadline drops to 90 days from the date of the demand.

 Even worse, the property owner cannot challenge the seizure during that months-long hold period.  That is because, under state law, seized property is “not subject to replevin,” a process that would allow the owners to regain wrongfully taken property while awaiting trial. In other words, Hoosiers would have to wait up to six months before they could even challenge a seizure in court. That even includes innocent, third-party owners (typically parents and spouses) who did not know or consent to their property being used in any criminal activity. 

As Judge Magnus-Stinson noted, losing one’s car for months on end “could cause significant hardship:”

During those months, if the owner has secured financing to purchase the vehicle, he is still required to make payments on that loan, lest he risk foreclosure and repossession. He is also required, of course, to make other arrangements for his transportation needs, which may include fundamental life activities such as transit to a job or school, visits to health care professionals, and caretaking for children or other family members.

In order to prevent “erroneous deprivation” and to safeguard due process, property owners must be “provided with some sort of mechanism through which to challenge whether continued deprivation is justifiable.” As the U.S. Supreme Court noted almost 25 years ago, “our precedents establish the general rule that individuals must receive notice and an opportunity to be heard before the Government deprives them of property.”