Civil Asset Forfeiture

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By taking Clarke's case, the Institute for Justice is hoping to combat not just the one injustice Clarke felt he suffered, but the civil forfeiture laws that drive all these other cases as well. So they're attaching a broader constitutional argument to the case: that the Justice Department shouldn't be able to — as it does today — choose where to spend the seized money, because that gives the executive branch appropriations powers left to Congress in the Constitution.

"Under the Appropriations Clause, Congress is the only branch that has the power to appropriate money," Sheth said. "That's designed to protect people. So if Congress — the most representative branch — holds the purse strings, then people are actually accountable to how that money is spent."

This is an argument that's been advanced by other critics of civil forfeiture, including the Drug Policy Alliance. It's unclear whether it can win in courts, and whether it would strike down civil forfeiture laws. But for organizations like the Institute for Justice, it's the best chance to take out a program that they believe is doing a lot of harm — and that lawmakers just aren't doing much about.
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... by 2014, that number had ballooned to roughly $4.5 billion for the year, ...

Now, according to the FBI, the total amount of goods stolen by criminals in 2014 burglary offenses suffered an estimated $3.9 billion in property losses. This means that the police are now taking more assets than the criminals.
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H.R. 540 said:

This bill modifies general rules governing civil forfeiture proceedings to: (1) ensure that a person contesting a civil forfeiture has legal representation without regard to whether the property subject to forfeiture is being used by such person as a primary residence; (2) increase the federal government's burden of proof in civil forfeiture proceedings to clear and convincing evidence; (3) require the government, in addition to showing a substantial connection between the seized property and an offense, to establish by clear and convincing evidence that the owner of any interest in the seized property used the property with intent to facilitate the offense or knowingly consented or was willfully blind to the use of the property by another in connection with the offense; and (4) expand the proportionality criteria used by a court to determine whether a civil forfeiture was constitutionally excessive.

To remove incentives for carrying out civil forfeitures, the bill requires proceeds from the disposition of seized property to be deposited into the General Fund of the Treasury, rather than to Department of Justice accounts for law enforcement activities.
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OKLAHOMA CITY - You may have heard of civil asset forfeiture.

That's where police can seize property and cash without first proving a person committed a crime; without a warrant and without arresting them, as long as they suspect that the property is somehow tied to a crime.

Now, the Oklahoma Highway Patrol has a device that also allows them to seize money on prepaid cards.

It's called an ERAD, or Electronic Recovery and Access to Data machine, and OHP began using 16 of them last month.

Here's how it works. If a trooper suspects a person may have money tied to some type of crime, the highway patrol can scan and seize money from prepaid cards. OHP stresses troopers do not do this during all traffic stops, only situations where they believe there is probable cause.

"We're gonna look for different factors in the way that you're acting,” Oklahoma Highway Patrol Lt. John Vincent said. “We're gonna look for if there's a difference in your story. If there's someway that we can prove that you're falsifying information to us about your business."

Troopers insist this isn't just about seizing cash.

"I know that a lot of people are just going to focus on the seizing money. That's a very small thing that' s happening now. The largest part that we have found ... the biggest benefit has been the identity theft," Vincent said.

"If you can prove can prove that you have a legitimate reason to have that money it will be given back to you. And we've done that in the past," Vincent said about any money seized.
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It shows the state is paying ERAD Group Inc., $5,000 for the software and scanners, then 7.7 percent of all the cash forfeited through the courts to the highway patrol.

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Now, the Oklahoma Highway Patrol has a device that also allows them to seize money in your bank account or on prepaid cards.

It's called an ERAD, or Electronic Recovery and Access to Data machine, and state police began using 16 of them last month.

Here's how it works. If a trooper suspects you may have money tied to some type of crime, the highway patrol can scan any cards you have and seize the money.
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The U.S. Supreme Court recently agreed to rule on a case that could have a major impact on civil liberties and whether civil asset forfeiture can continue to serve as low hanging fruit for bureaucratic interests run amok.

Timbs v. Indiana involves a man whose $42,000 Land Rover was confiscated via civil asset forfeiture. Attorneys from the libertarian public-interest law firm, Institute for Justice, don’t deny their client Tyson Timbs was convicted of selling $385 worth of heroin in two transactions and that his vehicle was used in the sale.

What they do contest is that the confiscation of the Land Rover (purchased with a payment from a life insurance policy, not drug money) was unconstitutional under the Excessive Fines Clause of the 8th Amendment.
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John Yoder was director of the Justice Department’s Asset Forfeiture Office from 1983 to 1985. Brad Cates was the director of the office from 1985 to 1989.

Last week, The Post published a series of in-depth articles about the abuses spawned by the law enforcement practice known as civil asset forfeiture. As two people who were heavily involved in the creation of the asset forfeiture initiative at the Justice Department in the 1980s, we find it particularly painful to watch as the heavy hand of government goes amok. The program began with good intentions but now, having failed in both purpose and execution, it should be abolished.
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Four years after Philadelphia police seized the home of Markela and Chris Sourovelis for a minor drug crime committed by their son, the city has agreed to almost completely dismantle its controversial civil asset forfeiture program and pay $3 million to its victims.

The Institute for Justice, a libertarian public interest law firm, announced today that the city had agreed to a settlement in a federal civil rights class-action lawsuit challenging its forfeiture program.

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Philadelphia dropped its forfeiture case against the Sourevelises after their plight drew national media attention, but last year a federal judge allowed the Institute for Justice's suit to proceed as a class action. The city also put stricter rules into place for when houses could be seized and voluntarily stopped using forfeiture funds to pay the salary of police and prosecutors.

Under the terms of the settlement, codified in two binding consent decrees, Philadelphia will no longer seek property forfeitures for simple drug possession and will stop seizing petty amounts of cash without accompanying arrests or evidence in a criminal case. It will also put judges in charge of forfeiture hearings, will streamline the hearing process, and will ban the Philadelphia district attorney and Philadelphia Police Department from using forfeiture revenue to fund their payroll.

The city will disburse the $3 million settlement fund to qualifying members of the class action based on the circumstances of their case. A Philadelphia resident whose property was forfeited but was never convicted of a related crime, for example, will receive 100 percent of the value of the property.

Last June, the Pennsylvania legislature passed modest reforms of state asset forfeiture laws. The reforms increased the reporting requirements for asset forfeiture, raised the burden of proof necessary to seize property, and codified Philadelphia's new procedures for seizing homes into law. More than half of all U.S. states have passed some form of asset forfeiture reform in recent years, and in July a federal judge declared Albuquerque's asset forfeiture program unconstitutional. 
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Zamira Hajiyeva, who is the subject of the first two unexplained wealth orders obtained by the UK National Crime Agency (NCA), also spent more than £16 million over a decade at luxury department store Harrods, a High Court judgment said, according to PA. ...

If Hajiyeva cannot explain how she afforded the assets in question, she could lose them. One property, worth around £11.5 million, is in the rich London neighborhood of Knightsbridge, where Harrods is located.

Hajiyeva's husband, Jahangir Hajiyev, was the chairman of the state-controlled International Bank of Azerbaijan from 2001 until his resignation in 2015. He was later sentenced to 15 years on fraud and embezzlement charges, PA reported.

The unexplained wealth order is a new power given to law enforcement agencies this year to tackle suspected corruption. According to the government, it requires "a person who is reasonably suspected of involvement in, or of being connected to a person involved in, serious crime" to explain how their property was obtained, if their lawful income appears to be insufficient to afford it.

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"UWOs should now be used more widely to pursue more of the £4.4 billion worth of suspicious wealth we have identified across the UK."
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... 86 percent of Utah voters and 84 percent of all Americans oppose civil asset forfeiture. ...

... The most recent data for forfeitures in Utah show that only 87 percent of cases involve a criminal charge, with only 58 percent resulting in a conviction. Even more troubling, 64 percent of cases involve a default judgment because the person doesn’t even fight the forfeiture at all.
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And why don’t they fight? Consider this: The median value taken in forfeitures last year was a mere $1,071. Ask yourself: Would you hire an attorney for thousands of dollars to try to reclaim so little an amount? The question answers itself.

Then there are the larger cases, where it may make financial sense to fight. Even then, exchanges are offered by the prosecutor where the owner gets to keep half of the property if they agree to drop the case, letting the government keep the other half. No charges filed, no conviction, just a negotiation in which a property owner decides it’s better to lose some of the property than to spend a substantial amount of money and time fighting for years.

That isn’t justice. And it certainly isn’t the everything-is-peachy “essential law enforcement tool” Huber tries to depict. It is, rather, a law in dire need of reform.
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Earlier this year, my plan to ensure innocent people don’t lose their personal property to civil asset forfeiture was approved by the House with overwhelming bipartisan support.

This common-sense solution would protect the civil liberties of all Michigan residents while still allowing officers to crack down on convicted criminals. It would require an individual to be convicted of a crime before authorities are allowed to take and dispose of his or her property.

Unfortunately, the legislation has collected dust in the Senate Judiciary Committee for the five months since that historic vote. Sen. Rick Jones, who chairs the committee, appears reluctant to take the bill up for consideration. The former sheriff seems content with the status quo, which allows law enforcement officers to take and keep the property of individuals who are never even charged with a crime.
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PMBug said:

SCOTUS hears oral arguments in Timbs Vs. Indiana in two days (Wednesday):

https://reason.com/volokh/2018/11/25/this-week-supreme-court-will-hear-an-imp

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No person ... (shall) be deprived of life, liberty, or property, without due process of law; ...

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This morning, the Supreme Court heard oral argument in Timbs v. Indiana, an important asset forfeiture and property rights case. I wrote about the issues at stake here and here. The big questions before the Court are whether the Excessive Fines Clause of the Eighth Amendment is "incorporated" against state governments and, if so, whether at least some state civil asset forfeitures violate the Clause. If the answers to these two questions are both "yes," the Court could also potentially address the issue of what qualifies as an "excessive" fine.

Today's oral argument makes clear that the Court will almost certainly rule that the Excessive Fines Clause does indeed apply to the states. The justices also seem likely to rule that at least some state asset forfeitures violate the Clause. Both liberal and conservative justices seemed to support Timbs on these two issues, especially incorporation. It is hard to say, however, what - if anything - the Court will do on the question of how to define "excessive." The justices could well decide to leave it to the lower courts, at least for the time being.
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Since the late 19th century, the Supreme Court has been applying—or incorporating—the various provisions contained in the Bill of Rights against the states via the 14th Amendment, which says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." In other words, if the Free Speech Clause of the First Amendment applies against the states (it does), then the Excessive Fines Clause of the Eighth Amendment deserves the same treatment.

Now here is where things start to get interesting. "We all agree that the Excessive Fines Clause is incorporated against the states," Gorsuch said during the Timbs oral arguments. But he then acknowledged that not everyone on the Court agrees on exactly how it should be done. "Whether you want to do it through the Due Process Clause and look at history and tradition," he continued, "or whether one wants to look at privileges and immunities, you might come to the same conclusion."

Gorsuch was likely thinking about McDonald v. Chicago, the 2010 case in which the Court confronted these questions: Does the Second Amendment right to keep and bear arms apply against the states via the 14th Amendment, and if it does apply, is that because the right to keep and bear arms is a privilege or immunity of U.S. citizenship, or because it is one of the liberties protected by the Due Process Clause?
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Hawaiian vacation. Margarita machine. Sparkles the Clown. Are we going to add Trump’s border wall to the list of “ridiculous things” that civil asset forfeiture funds have been spent on?

It seems so if left up to this administration.

On Friday, two congressional Republicans told the Associated Press that the administration had been looking at civil asset forfeiture funds to finance the border wall’s construction. And it’s easy to see why. The federal government’s forfeiture fund currently has $3.7 billion in cash, but over $7.6 billion in assets. For the Trump administration, what could be more tempting than liquidating this slush fund to build the wall it wants a new influx of $5.7 billion for?

This scheme exemplifies all that is wrong with civil asset forfeiture, which occurs when law enforcement takes property away from someone based on the mere suspicion it is connected to a crime. To be clear — because people can’t believe this is a thing — you do not have to be arrested or convicted of a crime to have your property seized and taken under civil asset forfeiture.

And once forfeited, local law enforcement in many places can use this money for almost anything it wants. This is how civil forfeiture has earned the nickname “policing for profit.” And this is why the Trump administration thinks forfeiture funds are on the table for a border wall.

That assumption at the federal level, however, is mistaken.

Building a wall with federal forfeiture funds is no slam dunk. Federal law limits the use of such funds to certain law enforcement purposes. “Border wall” is not one of them. And it doesn’t look like Congress would take action to change the law so that “border wall” is a permissible expense. Even though we’ve heard a member of Congress suggest that a wall should be built with forfeiture funds, most federal officials are strongly opposed to civil forfeiture.

On Tuesday, Sen. Mike Lee (R-Utah), a civil forfeiture reformer, questioned Attorney General nominee William Barr on the practice. Lee got Barr to concede that you “have to strike the right balance” on civil forfeiture. In 1991, Barr said that civil asset forfeiture could give law enforcement a “speed-trap mentality” where agencies pursue forfeitures to line their own coffers.

And last week, Reps. Tim Walberg (R-Mich.) and Jamie Raskin (D-Md.) kicked off the 116th Congress by participating in a briefing on civil asset forfeiture reform, with Walberg sharing his plan to again reintroduce the FAIR Act, a comprehensive reform bill on the subject. Last Congress, the U.S. House adopted bipartisan amendments to a spending bill that would have prohibited the Justice Department from using federal dollars to increase forfeiture practices, but those amendments were not included in the final package.

When 84 percent of constituents oppose civil asset forfeiture, and 76 percent of voters are more likely to support candidates who back forfeiture reform, elected officials better listen. And this administration should listen to those who are saying building a wall with forfeiture “might be the worst idea yet.”

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Prosecutors are ignoring the Constitution and legal precedent in their zeal to punish the founders and former staff of Backpage, by seizing money and other assets that stem from protected speech and legal activity.
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Since the defendants' arrests in April 2018, prosecutors "have created constant interference with the Defendants' ability to defend this case," states a January 2019 status report filed by their lawyers. "Virtually all of the Defendants' assets have been seized, virtually all of the money in their attorneys' trust accounts designated to fund the defense has been been seized or is effectively frozen," and defense lawyers "may expose themselves to criminal liability if they use those funds to pay fees" from the case.

Last week, the Cato Institute, DKT Liberty Project, and the Reason Foundation (the nonprofit that publishes Reason magazine) filed a brief in support of the defendants on this matter. The groups say they want "to amplify the danger that the government's use of civil forfeiture to seize the assets and proceeds of expressive material poses to free expression."
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Supreme Court Delivers Unanimous Victory for Asset Forfeiture Challenge

The Eighth Amendment prohibition against excessive fines and fees applies to states as well, SCOTUS rules, opening a new way to challenge outlandish forfeitures.
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PMBug said:

Ideally, this CAF gets neutered at the Federal level, but until that time, individual states are leading the way. Except, apparently, for Michigan...

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LANSING, Mich. (AP) — Law enforcement could not permanently take ownership of cash and other property seized in drug cases unless certain conditions are met under measures that won final legislative passage Thursday.

Democratic Gov. Gretchen Whitmer is expected to sign the bipartisan bills that target civil asset forfeiture, a practice that critics say has been abused to fund police activities.

The legislation would prohibit assets taken in suspected drug crimes from being forfeited unless the defendant is convicted or the value of the money and property is more than $50,000, excluding the value of contraband. A conviction or guilty plea would not be required in instances where no one claims an interest in the property, the owner allows the forfeiture, or a defendant has been charged but cannot be located or extradited back to Michigan.
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Michigan Gov. Gretchen Whitmer signed three bills into law Thursday that significantly limit police's ability to forfeit property without first obtaining a criminal conviction. Michigan will join 11 other states that have passed laws requiring convictions before forfeitures in some or all cases—part of growing bipartisan concerns that civil forfeiture deprives property owners of due process and creates perverse incentives for the police.
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Every July, as the deadline arrives to either sign or veto bills in Hawaii, there seems to be a bit more suspense than one might expect when the same political party controls the Legislature and the governor’s office.

The good news is that Gov. David Ige is no rubber stamp for his fellow Democrats. The bad news is that some of his vetoes are ill-advised.

The latest example is his rejection of a measure to reform Hawaii’s civil asset forfeiture program. House Bill 748 passed both houses of the Legislature unanimously, and with good reason.

Last year a state audit found that the Attorney General’s Office, which administers the program, has failed to account for property obtained by forfeiture, inadequately managed program funds and failed to allocate some $2 million for drug prevention as required by law.

Even worse, the report showed that in more than a quarter of the cases in 2015, property was forfeited even though no one was ever even charged with a crime, much less convicted. In another 4% of cases, property was forfeited even though the underlying charge was dismissed.

HB 748 would’ve allowed law enforcement to still seize property. However, authorities would have needed to wait until there was a felony conviction of the owner before selling the property.

In 2015, Civil Beat reported that Hawaii authorities were seizing an average of $1.2 million in property every year, taking things like cars, boats, guns and even family homes.
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... "By gaming the system and denying property owners a 'win' in court," says Institute for Justice (I.J.) senior attorney Dan Alban, "federal prosecutors have found a way to short-circuit judicial oversight of their activities, while at the same time preserving their ability to continue to abuse Americans' property rights."

I.J. is asking the U.S. Supreme Court to consider a case that takes aim at such sneaky tactics, arguing that an owner can "substantially prevail" in a forfeiture battle, as required by the CAFRA provision dealing with attorney fees, even if the government returns the property before it officially loses in court. "The threat of paying attorneys' fees is a critical check on government abuse," observes Justin Pearson, another I.J. senior attorney. "Otherwise, there is no disincentive to stop prosecutors from filing frivolous civil forfeitures against property belonging to innocent owners."

... "Seizing someone's property and forcing them to hire an attorney for two years to get it back has real costs," Pearson says. "The government can't take your property, keep it for years, and then suddenly give it back and pretend like nothing happened."

So far, of course, the government can do exactly that. The Supreme Court can put a stop to it by taking up this case.

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... New Jersey Senate passed a bill Monday by a 36-3 vote requiring a criminal conviction in certain cases before police and prosecutors can take property using civil forfeiture.

That same day, New Jersey Gov. Phil Murphy (D) signed a transparency bill into law that will require quarterly reporting by police departments detailing their forfeiture activities. ...

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It’s after midnight at mile marker 204 on westbound Interstate 70 near Foristell. St. Charles County police officers watch for suspicious cars. Once they identify a car, they begin to look for a minor traffic violation to justify a stop. “Failing to keep right” is a common one.

After pulling over and questioning the motorists, police take them to a nearby towing company, Superior Towing, just off the highway at 11 Elaine Drive in O’Fallon. There, often in the middle of the night, police begin to take apart the vehicle and interrogate the occupants. They are looking for large amounts of cash, signs of a drug connection and inconsistencies in the motorists’ stories.

When Fleck, a trained police dog, smells marijuana on wads of cash, the officers advise the suspects that the best way to avoid years in prison is to sign a legal waiver surrendering ownership of anything in the car, including the money. Many readily sign and are released on a traffic ticket. The money — often tens of thousands of dollars — goes into police department coffers.

“People are in awful situations,” said Justin Gelfand, a former federal prosecutor who has represented some of the people taken to Superior Towing. “These often are in very coercive, unusual environments, literally waiving their right to their cash in a towing lot in the middle of the night.

“Basically they are told we can take you to jail; you won’t see your family for years,” Gelfand said. “The coercive elements are shocking. … They don’t know their rights. … They are in unenviable situations, they are scary, they are intimidating ... this is literally highway robbery by law enforcement. The idea that law enforcement should somehow have the right to take things from people and keep them, that is insane.”
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Police twice seized 50-year-old Detroit resident Melisa Ingram's car for alleged crimes she was never suspected of committing. In fact, no one was charged with a crime at all. Nevertheless, the local prosecutor demanded Ingram pay thousands of dollars to get her vehicle back, or else the county would keep it under civil asset forfeiture laws.

Ingram is now a lead plaintiff in a federal class-action lawsuit filed Wednesday against Wayne County, Michigan—which includes Detroit—by the Institute for Justice, a libertarian-leaning public interest law firm. The suit claims that the county seizes cars "simply because they are driven into, or out of, an area subjectively known for having some generalized association with crime," and that the county forces owners through a months-long, onerous process to challenge a seizure, violating their Fourth, Eighth, and 14th Amendment rights.
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Today, after illegally seizing and holding Robert Reeves’s 1991 Chevrolet Camaro for the last seven months, Detroit police agreed to return it along with $2,280 in cash they seized from him in July 2019. He picked up the car this morning.

The police’s sudden change of heart comes on the heels of a federal class action lawsuit filed earlier this month by the Institute for Justice (IJ) on behalf of Robert and others whose cars were illegally seized by Wayne County prosecutors using a controversial practice called civil forfeiture. The lawsuit challenges the county’s use of civil forfeiture to take vehicles—often from innocent owners like Robert—and hold them ransom until the owners pay exorbitant fines.

“It shouldn’t take a federal class action lawsuit for an innocent driver to get his car out of one of Detroit’s notorious impound lots,” said Wesley Hottot, a senior attorney at IJ. “The return of Robert’s property is too little, too late. Robert’s life was upended when he lost his car for seven months. Detroit’s car forfeiture program is fundamentally unconstitutional, and our lawsuit on behalf of Robert, Melisa Ingram and others victimized by the practice will proceed through the courts.”
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