Our nation has some pretty absurd laws. For example, the federal government has declared the importation of crocodile feet to be illegal if done in opaque containers. The sale of deodorant labeled “extra effective” is illegal if it doesn’t reduce sweat excretion by at least 30 percenbt. The feds have even made the sale of ketchup illegal unless the label spells the word “Catsup,” “Ketchup,” or “Catchup.”
The above laws are, of course, absurd. Today, however, I’d like to discuss another absurd activity of our government: Civil Asset Forfeiture.
Many people understand a related topic in the law: Criminal Asset Forfeiture. Criminal forfeiture can occur when a criminal has acquired assets through illicit means. In such an instance, the criminal can be made to forfeit those assets. Drug dealers can be forced to give up the cash they earned selling drugs.
Civil Asset Forfeiture is a process wherein the government can take your property even if you have not been convicted of a crime. Civil forfeiture operates under the strange legal fiction that property itself can be culpable of how it has been used. In a civil forfeiture action, the government files a civil lawsuit against the property itself. Additionally, since civil forfeiture is an action against property only, the government is not held to the same difficult burden of proof or legal standards that it must prove in a criminal case.
In short, under civil forfeiture law, the government doesn’t need to convict a person of a crime to take a citizen’s stuff. Once the government alleges any criminal suspicion, however spurious, then the police can seize your property and force you to have to spend your own money to prove the property’s innocence.
In most civil forfeiture actions the government gets a presumption in its favor, and the burden of proof is often on the citizen. Indeed, civil forfeiture laws are so lax that 80 percent of persons whose property was seized by the federal government for forfeiture were never even charged with a crime, much less convicted.
Add to this the perverse incentive that in 43 states as well as at the federal level, the agency that confiscates the person’s property in a forfeiture action gets to keep much or all of the assets forfeited. As such we end up with the U.S. Attorney General in 1990 demanding his subordinates “significantly increase forfeiture production to reach our budget target.” This financial incentive creates a conflict of interest and encourages the pursuit of property instead of the pursuit of justice. Moreover, it can create odd incentives for law enforcement.
Also, if the police get to keep the property they seize, then there is a strong incentive for police to take property first and ask questions later. Here are some examples of what can happen due to the civil forfeiture laws in our country:
On Oct. 20, 2005, Javier Gonzalez took off from Austin, Texas to make arrangments for his aunt’s funeral. He borrowed his boss’s Mazda, got the day off work, and took his life savings along with some additional money from relatives to buy a tombstone, coffin, pay for funeral services, and secure transportation and burial of the remains in Mexico as his aunt had asked before she died. In total, Mr. Gonzalez pulled together $10,032, but he was prepared to spend it all. His aunt had raised him after all.
During his drive, Mr. Gonzalez was pulled over for not having a front license plate. The Mazda he was driving had no place to screw one in on the front, and his boss (a car dealer) just kept the plate in the front windshield. After police stopped him, Mr. Gonzalez was asked if he had any knives, guns, ammunition, or large amounts of money with him. He acknowledged that he had a large amount of cash, and he told the officers where it was and what he planned to do with it. He was never charged with a crime, but he was questioned for hours, and his $10,032 was seized and a civil forfeiture action was brought alleging that it was contraband. It took three years and legal fees exceeding the amount of money taken, but he ultimately won a judgment and got the money returned, without interest.
On Nov. 18, 2009, Shukree Simmons was driving back to Atlanta after selling his Chevy Silverado truck to a restaurant owner in Macon for $3,700. As Mr. Simmons passed through Lamar County he was pulled over by two patrol officers who stated no reason for the stop, but instead asked Mr. Simmons numerous questions about where he was going and where he had been. The officers searched Mr. Simmons and his passenger as well as the car. They found no evidence of any illegal activity. A drug dog sniffed the car and did not indicate the presence of any trace of drugs. Notwithstanding this and ignoring Mr. Simmons’s explanation that he was carrying money from selling his truck, the officers confiscated the $3,700 claiming they suspected that the funds were derived from illegal activity.
After Mr. Simmons later mailed his bill of sale and a copy of the transferred title for the truck to the officer showing the date and exact sale price of $3,700, he was told over the phone that the money had already been deemed forfeited, and he would have to sue to get it back. Mr. Simmons consulted with a local attorney who quoted him $5,000 as the fee for bringing such a lawsuit. For most people in Mr. Simmons’s position, the story would end there. Fortunately for Mr. Simmons, he was able to obtain the assistance of the ACLU who hired an attorney to represent him at no cost, and he was able to get his money back.
Sadly, I could recite story after story of unjust civil forfeiture actions. Civil forfeiture is routinely abused. This practice needs to be abolished. You should have to be convicted of a crime before your property is forfeited. Mere suspicion should not be sufficient. Short of doing away with the practice altogether, we should at least end the direct profit incentive under civil forfeiture laws. Civil forfeiture revenue should be placed into a neutral fund of the federal or state government, not given directly to the agency that seized the money. By granting proceeds of civil forfeiture to the law enforcement entities charged with confiscation there is an incentive to violate citizens’ rights for profit.
This should end.
John Judkins is a Greenfield attorney.