SCOTUS: Police may seize property without immediate hearing

The US Supreme Court recently decided that police officers may continue to seize cars that defendants allegedly use to commit a crime, without an immediate hearing, reported Jurist. States often allow that kind of seizure—known as civil forfeiture—when officers believe that the car is connected to a crime in which the owner is not involved.

Justice Kavanaugh, writing for the majority, noted that the constitutional right to due process depends on the circumstances. States cannot take real property without a prior hearing, but personal property is different because it could be hidden before a hearing takes place. So when police officers seize cars, the owner only has a right to a timely hearing after the seizure, and not a prompt one, according to the Court.

The car owners in this case had argued that due process does give them a right to a prompt hearing under Mathews v. Eldridge. In that case, the Court created a test that balances the impact of seizing particular property or rights against the burden of having more procedures in place. Justice Kavanaugh responded that no prompt hearing is required under the Court’s precedent and that he would reach the same result under the Mathews test.

Justice Gorsuch concurred, but raised concerns about “whether, and to what extent, contemporary civil forfeiture practices can be squared with the Constitution’s promise of due process.” He criticized law enforcement agencies for using civil forfeiture as a source of income, seizing property that is easily convertible to cash and small enough to discourage owners to go to court to get it back. He also noted that this practice disproportionately affects “the poor and other groups least able to defend their interests.”

In dissent, Justice Sotomayor echoed Justice Gorsuch’s concerns: “officers have a financial incentive to target marginalized groups, such as low-income communities of color, who are less likely to have the resources to challenge the forfeiture in court.” She also highlighted that many people need their car to get to work. And she pointed to law enforcement agencies imposing high fees and holding on to property for years before going to court—”all without any initial check by a judge as to whether there is a basis to hold the car in the first place.”

Civil forfeiture is a growing practice, although the government does not always win. For example, the US Court of Appeals for the Ninth Circuit ruled in January this year that the FBI went too far when it seized 700 safety-deposit boxes from private individuals.

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Lawfare: 'American policing is violent, humiliating, and dehumanizing'

American policing is violent, humiliating, and dehumanizing, reports Lawfare. It has led to thousands of avoidable deaths. Since the 2020 murder of George Floyd, police killings have only continued, at a rate of over 1,000 people per year. Black people are much more likely to be the victims of these governmental extrajudicial killings. Rather than treat Black and Brown Americans as members of the public they are supposed to serve, the culture and practices of policing treat them as a less-than-human enemy.

Police are occupying forces in many urban Black and Brown communities. People of color too poor to live in a middle class or wealthy neighborhood because of decades of segregation, disinvestment, redlining, and mass incarceration are subjected to heavy and disproportionate surveillance and violence by police. With police helicopters overhead, more police precincts per capita, and plainclothes and uniformed police on patrol in these communities, this occupation sends a message to the public and to police themselves that the people being policed are dangerous. Notably, these militaristic police tactics have not been shown to reduce violent crime. 

But police are not in these neighborhoods to keep the peace or to respond to calls for service. If it wasn’t enough to subject people to their constant presence and scrutiny, law enforcement officers stop and search people in these communities on a regular basis. The impact is enormous. Police keep thousands of Americans from going about their daily routines, followed by manual invasions of their bodies, penetrations of their waistbands and pockets, and lifts of their garments often in public. In New York City, innocent people going about their everyday lives have been stopped by police over 5 million times since 2002. In 2011, over 685,000 New Yorkers were stopped in a single year. Police in California stopped 1.8 million people in just a six-month period. In 2018, the Metropolitan Police Department, one of many Washington, D.C., police departments, stopped more than 200,000 people in a city of just over 700,000. Police in all three places were most likely to stop or use violence against Black people, the overwhelming number of whom were innocent of any crime. While perhaps these involuntary interactions between police and civilians might seem utilitarian, safe, and brief in the abstract, in practice these experiences can be violent, terrifying, and traumatic. While pointless from a public safety standpoint, these interactions send a message to police officers that Black and Brown people can be harassed and degraded with impunity. 

Police across the country are authorized to stop people for pretextual reasons. As long as law enforcement officers have a legal justification to make a stop, they can use a hunch, caprice, or any other motivation to conduct this contact with a fellow citizen. Police can even stop someone because that person would rather decline the interaction. The ability of the police to stop anyone for whatever reason they want makes many people of color perceive police officers less as public servants and more as abusive stalkers.

It is no secret that during these stops and other interactions, police officers sometimes speak to citizens in unprofessional, disrespectful, and offensive ways. The Department of Justice reports in Chicago, Ferguson, and Baltimore made plain that police commonly used offensive language and even racial slurs in those cities when describing or addressing people of color. My own research documented well over a hundred instances of explicit racial bias by law enforcement officers on social media, text messages, and emails. The Plainview Project proved that thousands of police officers posted racist, homophobic, and misogynistic comments on a single social media platform. Police culture and practice tolerates officers disparaging the people paying their salaries. No other profession would allow its staff to treat its customers in the way the police treat the residents of many communities. 

Heavy militaristic police presence, disparaging language, frequent stops and searches based on pretexts, and disparaging language are all evidence that police view Black and Brown people with suspicion and fear. These groups of people are not served by police—they are subjugated by them. 

Some laws and policies incentivize the police to engage in these terrifying interactions. For example, some police departments have quotas for arrests, and so contacts with civilians like stop and frisks help officers make their quotas. There are other incentives to stop motorists beyond quotas. Federal funds subsidize highway traffic stops. If police departments do not write tickets or make arrests on highways, then their departments risk losing those monies.

Civil asset forfeiture, and other revenue-generating activity, is another law enforcement policy that drives dangerous interactions between police and American citizens. Stops of people give police an opportunity to seize their property without ever charging anyone with a crime or traffic infraction. In fact, in some years police have taken more from civilians than actual burglars. Memphis’s Scorpion unit—the unit at the center of the Tyre Nichols murder—was lauded recently by Memphis Mayor Jim Strickland for seizing “$103,000 in cash and 270 vehicles” just between October 2021 and January 2022. Civil asset forfeiture encourages officers to see citizens as a source of revenue for their department and incentivizes police officers to come into contact with individuals in case there are items they can seize from them. And in some jurisdictions, the revenue from tickets for traffic violations further motivates police to come into contact with Americans who are simply living their lives. For example, the Department of Justice reported that the fines and fees collected in relation to traffic enforcement in Ferguson, Missouri, where Michael Brown was killed by police, subsidized much of the city government there.

But it’s not just police policies and practices—the culture of police officer hiring also puts Americans in danger. Police officers are overwhelmingly male and young, and current hiring only perpetuates these demographics. While America is diverse in terms of gender, age, and race, its police departments are not. This is concerning—the presence of even a single woman police officer on a scene reduces the chance for violence. Women are less likely to use force and more likely to deescalate an encounter. But women make up less than 13 percent of American police departments’ staff. In addition to gender, age plays a role in the violence inflicted on civilians. Young people in their teens and twenties are often more violent, impulsive, and susceptible to peer pressure, yet police departments hire people as young as 18–21, making those officers a more dangerous cohort. The police officers charged with killing Nichols are all men between the ages of 24 and 32. 

The aftermath of the homicide of Nichols also shows that police officers will fabricate their version of events in order to justify their actions or avoid any penalties. The initial police report about Nichols’s interaction with police, written while he was still alive, is riddled with inaccuracies. Unfortunately, there are countless examples of officers lying, and they usually face no consequences for their mendacity. For example, the report about the botched raid that caused Breonna Taylor’s death falsely asserted that she had no injuries. When Buffalo police pushed an elderly man at a protest in 2020, the first police report falsely claimed that he tripped—until video showed he was violently pushed. The police report on the George Floyd case described his death as a medical event and omitted any mention of the officer pressing his knee down on Floyd’s neck for more than nine minutes. Police misrepresentations are not limited to their police reports. Testifying falsely is so common for police that there is even a term for it: “testilying.” Despite a troubling number of instances of police being exposed for lying, they continue to do it because they have little fear that they will be caught. In fact, in New York City, some officers who lied received promotions. 

One well-documented aspect of police culture that protects officers’ misrepresentations, misbehavior, and violence is known as the “blue wall of silence.” This means they do not typically report their fellow officers when they transgress. Even when citizens file complaints and civilian review boards recommend punishment for officers, police departments often lessen the severity of the discipline or ignore it altogether. For example, one study found that only 3 percent of complaints against Chicago police officers resulted in any discipline. 

On the rare occasion that police are disciplined, police culture and practice is for problem officers to stay on the force in positions where they interact with civilians. Four of the five officers accused of killing Nichols had previous complaints against them. The officer who killed George Floyd had 18 complaints against him and received discipline for two. The New York Police Department officer who was responsible for Eric Garner’s death had 17 misconduct complaints at the time of Garner’s murder. The officer who shot Walter Scott in the back on videotape had previously been in trouble with his department for using his stun gun on an unarmed person. And the officer who was convicted of killing Laquan McDonald had 29 complaints against him, many for excessive force. The officers responsible for Breonna Taylor’s killing had prior complaints against them as well. Police management and supervision practices fail to hold police accountable and instead embolden them and place them back in a position to harm.

Police culture and practices too often lead the police to harm the people they are supposed to be serving. Police violence is a leading cause of death of young Black men. While many of these deaths, like the tragic death of Tyre Nichols, make headlines, many other injuries are caused by police. For every death caused by police, at least 50 individuals are sent to hospitals due to police brutality. There are many more bruises, bumps, scrapes, and psychological traumas that are never documented. 

Nichols’s killing was tragic and avoidable. While police officers have been arrested for his killing, their prosecution will not solve the much broader problem within police policies, practices, and culture that contributed to Nichols’s death. Fundamental and drastic changes to policing—and the criminal legal system more broadly—are needed in order to stop government-funded violence against the people the government is supposed to protect.

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Fines, fees used to fund criminal justice too take a toll on poor

While the nation’s imprisoned population has declined since peaking in 2009, incarceration levels still remain extraordinarily high, reports the USA Today.

Continued efforts to lower incarceration rates will stall unless we address the role that revenue plays in the daily operation of police departments, courts, jails and prisons across the country. So much of these entities’ time and effort goes into generating revenue that the goals of pursuing justice and improving public safety often get pushed to the side.

A new Brennan Center for Justice report delves into the interlocking economic incentives that underpin our justice system. Many of these practices rely on a simple calculus: More people in the justice system means more dollars for agencies, governments and contracted for-profit firms

Some of the revenue streams flow straight out of the pockets of the people who are ticketed, searched, arrested, jailed, tried and sent to jail or prison, while others arise from a growing trade in bed space at correctional and detention facilities.

Michael Brown brought attention to Ferguson, Missouri

A 2020 study found that when a municipality increased the percentage of its revenue coming from law enforcement fines, fees and forfeitures, that rise was associated with statistically significant decreases in clearance rates (the ratio of arrests to reported crimes) for both violent and property crimes.

That is an unacceptable trade-off. It’s time for the government agencies involved in the criminal justice system at all levels to examine the revenue-generating parts of their work and its true costs, alongside the budget holes they are meant to fill.

In the face of shrinking state or federal monetary aid, eroded property and sales tax bases, and public distaste for tax increases, the pressure to bring in revenue has been intense, to put it mildly. Even so, every program, every policy that now privileges revenue over safety and justice can be realigned. The solutions to these problems exist. They just need people of courage to apply them.

The killing of Michael Brown in Ferguson, Missouri, drew national attention to user-funded justice – the city had pushed the police department and the courts to maximize funding potential of fines and fees. 

In fiscal years 2010 and 2011, about 12% of Ferguson's general fund revenue came from fines and fees. By fiscal year 2015, the city was budgeting for 23% of its revenues to come from fines and fees.

Civil asset forfeiture no longer hits just drug kingpins

Civil asset forfeiture, too, has metastasized into a major revenue source, going well beyond its onetime purpose of targeting drug kingpins. Law enforcement agencies seize and retain peoples’ cash, vehicles, homes and other items on a suspicion of their connection to an offense without having to prove the connection.

Take Minnesota’s Metro Gang Strike Force. An investigation revealed that its members were stopping and searching people who were clearly not involved in gang activity, and then taking or buying seized items for personal use – like televisions, tools, appliances and jet skis.

Law enforcement agencies have also been earning revenue from bed space. Some counties offer open beds in local jails to state or federal authorities whose own facilities are overcrowded, such as Immigration and Customs Enforcement and U.S. Marshals. Counties can arrange for the federal government to pay them to maintain a “guaranteed minimum” number of beds in their facilities. Some expand their facilities or build new ones to serve this market. Or they can act as intermediaries between federal agencies and for-profit firms, agreeing to house federal detainees and then subcontracting with a company that puts those people in their facilities. 

Rebalance the scales of justice   

While it is easy to agree that governments should not be extracting money from the most vulnerable, nor that agencies be rewarded for securing overly harsh punishments, the primary challenge to reform is that these financial motivations – and their budgetary effects – have become persistent and self-reinforcing. Nevertheless, we can rebalance the scales of justice, and we must. 

For example, policymakers can push back against the growing market in bed space and take steps to reduce correctional and detention populations safely. At the same time, where housing deficits still exist, negotiations and contracting should be subjected to increased transparency and accountability.

Lawmakers can also choose to eliminate civil asset forfeiture. Alternatively, states can redirect forfeiture proceeds away from law enforcement.

Legislatures can eliminate all fees, with outstanding debts automatically forgiven.

To realign our priorities, Congress, state legislatures, local governments and law enforcement agencies must work together to diminish the lure of existing financial incentives for agencies and municipalities that are often stretched too thin. The justice system should be funded equitably by taxpayers, all of whom are served by it – not primarily by the community’s poorest, most marginalized members.

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States scrutinize civil asset forfeiture

For more than three decades, criminal justice advocates and legal experts have pushed federal and state lawmakers to change or abolish laws that allow police officers to take property, money or assets from people who have not been convicted of crimes, reported Stateline. Most states and the federal government have such laws, which funnel billions of dollars in proceeds to police and prosecutors.

Law enforcement agencies argue that civil asset forfeiture helps curb drug trafficking and other illegal activity. The practice takes the profit out of crime, they say, and gives police and prosecutors additional resources to fight it.

But critics across the political spectrum say the statutes give law enforcement a financial incentive to go after innocent people.

Thirty-six states and the District of Columbia have taken steps to scale back their civil asset forfeiture laws since 2014. But only Maine—which enacted a law this year—Nebraska, New Mexico and North Carolina have completely abolished the practice. Those states replaced it with a criminal forfeiture process that requires prosecutors to prove the property owner’s guilt, according to the Institute for Justice, a libertarian public interest law firm and leading advocate for overhauling the laws.

In large part, civil asset forfeiture continues in the rest of the states because they have failed to close a giant loophole: the federal equitable sharing program.

That program allows state and local law enforcement officials to partner with the U.S. Justice and Treasury departments. Police agencies transfer seized property, money or assets to the federal government and receive up to 80% of proceeds from the sale of the property—regardless of state law.

Between 2000 and 2019, the federal government paid out $8.8 billion to state and local agencies participating in the equitable sharing program, according to a report released last year by the Institute for Justice. The states that participate most heavily in equitable sharing are California, Massachusetts, New York, Rhode Island and Texas.

Lower Standard of Proof

To seize property under civil forfeiture laws, the government doesn’t have to prove that the owner was involved in illegal activity. It just has to demonstrate that the property was connected to a crime.

“The fact that the burden of proof is so low for government prosecutors just provides such weak protections for property owners,” said Grey Gardner, senior staff attorney at the Drug Policy Alliance, a nonprofit organization that opposes punitive drug laws. “I think it alarms a lot of people on the right and the left.

“When people know the government is effectively taking people’s property without sufficient due process, without criminal charges … they’re disgusted by that,” Gardner told Stateline.

But John Flynn, president-elect of the National District Attorneys Association, said civil asset forfeiture laws are a valuable crime-fighting tool.

“We should not let drug dealers, or anyone involved in any kind of financial scam or Ponzi scheme, reap the benefits for their illegal actions,” Flynn said. “It’s a punishment. I don’t want drug dealers benefitting from poisoning our children and then keeping the money.”

Flynn said prosecutors don’t want innocent people to lose their belongings, but that civil asset forfeiture should be altered, not abolished. He also dismissed the assertion that police and prosecutors support the practice to “beef up their budgets.”

Opponents of civil asset forfeiture argue that the practice rarely takes down big-time criminals. In the 21 states with available data, the median currency forfeiture was just $1,276, according to the Institute for Justice report.

Only a handful of states even try to track how often they seize property from people who are never convicted of a crime, the Institute for Justice found, and the data is unreliable.

“You’re talking about hundreds of thousands of forfeitures that are initiated every year,” said Clark Neily, senior vice president for legal studies at the Cato Institute, a libertarian think tank based in Washington, D.C. “[But] police are generally pretty bad about collecting data about all kinds of practices, not just civil forfeiture.”

One fact seems clear, however: Civil asset forfeiture disproportionately affects people of color.

In a 2020 study published in the International Public Management Journal, researchers from Indiana University and Arizona State University analyzed forfeitures by 2,278 municipal police departments between 1993 and 2007 and found “a significant relationship between minority population share and reported forfeiture revenue.” Other studies and several media investigations, including a 2019 series by St. Louis Public Radio and a 2014 series in The Washington Post, reached the same conclusion.

“Given all the other factors of everything else happening in law enforcement and police action, [you can see] how that can lead to racial disparity issues here,” Isaac Safier, a San Francisco attorney who specializes in civil asset forfeitures, told Stateline. “If a guy is caught with a bag of cocaine in a fraternity house, the officers aren’t going into his father’s [investment] account and seizing all the money in [it].”

 

Safier said some of his clients are targeted because of their race. Many of them, he said, don’t have traditional bank accounts, which puts them at a disadvantage from the start.

“If a large percentage of a group of people are underbanked, then it’s going to be harder for somebody from that group to prove where their money came from and show the source of funds,” Safier said.

“If there’s an ethnic group that uses nonbanking or nontraditional banking methods such as lending circles, which are perfectly legal to raise funds for businesses … the fact they don’t have the conventional paperwork makes it harder for them to prove their case.” 

Maine Makes Big Changes

Several state legislatures took up the issue of civil asset forfeiture this year, but only one made a significant change.

In Hawaii, House and Senate negotiators couldn’t agree on the final version of a bill that would have restricted forfeiture to cases involving a felony conviction. The measure also would have directed all forfeiture proceeds to the state’s general fund.

Nevada lawmakers debated a bill that would have made any forfeiture of property worth less than $5,000 a criminal matter, rather than a civil action. It also would have prohibited police from seizing less than $200 in cash or a vehicle worth less than $2,000.

Supporters of the Nevada bill argued the changes would make it easier for property owners with less money to contest forfeitures. But police and prosecutors successfully lobbied against the measure, citing a loss in revenue and the weakening of a crime deterrent.

“We should remember that the purpose of forfeiture law is that crime should not pay,” John Jones of the Nevada District Attorneys Association told the Las Vegas Review Journal. “[The $200 limit] means that crime can pay in increments of $200 or less.”

But critics of civil asset forfeiture notched a huge victory in Maine, where a new law prohibits forfeitures except in cases where the owner of the property is convicted of a crime in which the property was involved. The measure, which became law without the signature of Democratic Gov. Janet Mills, also requires the Maine Department of Public Safety to post records of forfeited property on a public website.

Perhaps most significantly, it also bars Maine law enforcement agencies from participating in the federal equitable sharing program.

“We completely abolished civil asset forfeiture and repealed all statutes and moved everything over to criminal forfeiture which requires [a] conviction,” state Rep. Billy Bob Faulkingham, a Republican and the measure’s chief sponsor, told Stateline. “We also took it one step further … [and] ended the federal equitable sharing program.

“I think civil asset forfeiture is one of the most outrageous violations of our constitutional rights,” Faulkingham said. “I would just hope that this bill is a beacon to other states to see it can be done and needs to be done and I hope that's a domino effect for other states to enact it.”

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Maine abolishes civil asset forfeiture

Maine became the fourth state in the nation to abolish civil asset forfeiture, a practice where law enforcement can seize property if they suspect it is connected to criminal activity, even if the owner is not convicted of a crime, reported Reason.

After a bill passed by the state legislature, LD 1521, took effect without the governor's signature yesterday, Maine officially repealed its civil forfeiture laws, joining Nebraska, New Mexico, and North Carolina.

Law enforcement groups say civil asset forfeiture is a crucial tool to disrupt drug trafficking and organized crime by targeting their ill-gotten proceeds. However, groups like the Institute for Justice, a libertarian-leaning public interest law firm, say civil forfeiture provides too few due process protections for property owners, who often bear the burden of proving their innocence, and creates too many perverse profit incentives for police.

"Civil forfeiture is one of the most serious assaults on due process and private property rights in America today," Institute for Justice Senior Legislative Counsel Lee McGrath said in a press release. McGrath says Maine's new law "ends an immense injustice and will ensure that only convicted criminals—and not innocent Mainers—lose their property to forfeiture."

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Forfeiture of Land Rover was “grossly disproportionate” to the gravity of crime

The Indiana Supreme Court has ruled that a convicted drug dealer who challenged the forfeiture of his Land Rover before the U.S. Supreme Court should get his vehicle back, reported The ABA Journal.

The state supreme court ruled for Tyson Timbs, reasoning that the forfeiture is unconstitutional because the seizure of his vehicle amounted to an excessive fine, the Indianapolis Star reports.

The Indiana Supreme Court ruling followed the Supreme Court’s decision for Timbs’ in 2019 finding that the Eighth Amendment’s ban on excessive fines applies to the states, as well as the federal government. On remand, the Indiana Supreme Court said the harshness of the forfeiture was “grossly disproportionate” to the gravity of Timbs’ drug dealing crime.

The state supreme court used a two-part analysis. First, it considered whether the property seized was an “instrument” of the crime committed. The state won on that prong because Timbs had used the Land Rover to transport the first heroin that he sold to undercover officers for $225. The second drug sale, made on foot, was for $160.

But the state lost on the proportionality prong.

Timbs had purchased the Land Rover, worth at least $35,000, with life insurance proceeds that he received after his father died. He spent the rest of the money, about $30,000, on heroin. Most of the miles that Timbs put on his Land Rover were from out-of-town trips to buy the drug. Later, an acquaintance asked Timbs whether he would sell some heroin.

Timbs agreed. He made the two drug sales to a person who turned out to be an undercover officer. Police arrested Timbs as he was on his way to a third planned buy. Timbs pleaded guilty to drug dealing and conspiracy to commit theft. He spent one year on home detention and five years on probation. His costs and fees amounted to about $1,200.

The maximum fine for the offense was $10,000, and the maximum sentence was 20 years in prison.

Timbs participated in treatment programs and successfully completed his sentence. He has held down several jobs but has to use his aunt’s car to get to work.

“We conclude that the $35,000 market value of the vehicle and the other sanctions imposed on Timbs point to the punitive, rather than remedial, nature of the forfeiture,” the Indiana Supreme Court said. “It’s appropriate to evaluate the market value of the forfeiture relative to the owner’s economic means—because ‘taking away the same piece of property from a billionaire and from someone who owns nothing’ do not reflect equal punishments,” the state supreme court said, quoting a prior opinion.

“To be sure, the Land Rover’s forfeiture is not unconstitutional just because Timbs was poor,” the Indiana Supreme Court said. “Or because he suffered from addiction. Or because he dealt drugs to an undercover officer and not someone who would use them. And it’s not simply because the vehicle’s value was three-and-a-half times the maximum fine for the underlying offense. Or because he received the minimum possible sentence for his crime and wasn’t a sophisticated, experienced dealer. Or because the car, his only asset, was essential to him reintegrating into society to maintain employment and seek treatment. Rather, it’s the confluence of all these facts that makes Timbs the unusual claimant who could overcome the high hurdle of showing gross disproportionality.”

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MCN: Asset forfeitures provide a $70 billion windfall for law enforcement

Matthew T. Mangino
More Content Now
December 18, 2020

Two Middle Eastern men were driving through Pennsylvania on their way from Brooklyn to Tennessee. Their vehicle was stopped by the Pennsylvania State Police. According to Spotlight PA, an independent, nonpartisan news service affiliated with The Philadelphia Inquirer, during the traffic stop the state trooper asked if either man was carrying a large sum of cash.

The men said yes, explaining that they had $10,000 because they were worried about their car breaking down and wanted cash for repairs. They told the trooper whatever money was left would be used for one of the men to travel to Egypt.

After getting consent to search the vehicle, the police found nothing. Regardless, the state police took the $10,000. The money was later tested and found to have “high levels of PCP.”

The Pennsylvania Attorney General’s Office concluded the cash was “used to buy or sell drugs through an unknown drug-trafficking ring.” Neither man was charged with a crime or even cited for a traffic violation. However, because the men did not contest the civil forfeiture of the cash, the state kept it.

This form of government-sanctioned theft is not unique to Pennsylvania - although Pennsylvania Governor Tom Wolf has requested the state’s Office of Inspector General conduct a review of whether Pennsylvania State Police troopers are following the law when initiating traffic stops and then searching vehicles.

This week, the Institute for Justice released the third edition of “Policing for Profit: The Abuse of Civil Asset Forfeitures.” With data from 45 states, the District of Columbia and the federal government, the report reveals that civil asset forfeitures are a massive nationwide problem. According to the report, states and the federal government have forfeited at least $68.8 billion, in the last 20 years.

That is probably why, according to a Cato Institute/YouGov Survey, 84% of Americans oppose civil asset forfeitures. Only one in six people think police ought to be allowed to seize property before a person is convicted.

How can the assets of a person not convicted of a crime be forfeited to the government?

Forfeiture cases are brought against the property, meaning prosecutors file suit against items like cash, cars or homes. According to Spotlight PA, the courts then require the owners to prove they have the legal basis to challenge the state and then argue to get their property back. Since the process is handled in civil court, people seeking to get their money back are not entitled to a court-appointed attorney.

In 2019, the U.S Supreme made a ruling that many thought would kick the legs out from under civil asset forfeiture. An Indiana man was convicted of drug trafficking. The police seized his recently purchased Land Rover SUV. He purchased the SUV with the proceeds of his late father’s life insurance.

The vehicle was worth $42,000. His fine was $10,000. The trial judge said the forfeiture was, pursuant to the Eighth Amendment, excessive and disproportionate to the offense. The Supreme Court agreed.

In spite of the Supreme Court’s ruling, civil asset forfeitures continue. There is tremendous incentive for police to grab assets. In most states, police and prosecutors have complete access to those funds for any “law enforcement” purpose they can dream up.

The Institute of Justice report also revealed that forfeitures rarely target big-time criminals. Nearly half of all currency forfeitures are “worth less than $1,300.” The data reflects that the police are not taking the assets of kingpins, but rather small-time offenders who can’t afford to hire an attorney and who simply walk away from their property.

Lisa Knepper, a research director with the Institute of Justice, put it best, “Most laws still stack the deck against property owners and give law enforcement perverse financial incentives to pursue property over justice.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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PA law enforcement made over $15 million on civil asset forfeiture in 2017-18

A recent report from the Pennsylvania Attorney General shows that law enforcement across the state made over $15 million dollars through the use of civil asset forfeiture between 2017 and 2018, WHYY-FM.

This controversial legal mechanism allows police departments and district attorney offices to profit from property seized during arrests, even if a suspect is never convicted of a crime. This property — which is often tied to drug suspects — ranges from cash, cars and homes to jewelry and flat screen televisions.

While the annual haul –– which covers both the AG itself and 67 county DA offices –– is down from previous years, critics say the report shows that police still regularly take small amounts of cash from suspects — in some instances from innocent people.

Jennifer McDonald, a researcher with the national non-profit Institute for Justice, says these smaller confiscations are a sticking point for reformers. Potentially innocent people caught up in such a seizure rarely find it worth the cost of retaining a private lawyer to retrieve a few hundred dollars or less.

“For district attorneys to say, ‘Someone has $175 dollars in their wallet. We can call that drug money,’ is concerning. That means anyone who happens to be carrying cash at the wrong place at the wrong time can have their property taken and they’re very likely to not get it back,” she said.

Although the state legislature and court rulings have moved to tighten Pennsylvania’s forfeiture policies, McDonald hopes the state implements more reforms to protect innocent people.

Institute for Justice has previously sued over abuses linked to asset forfeiture in Philadelphia, where use of this tool has declined dramatically over the past decade. Although forfeiture petitions continue to bring in over a million dollars a year in Philadelphia, a Keystone Crossroads investigation earlier this year showed suburban and exurban jurisdictions had eclipsed big cities in their use of forfeiture. 

The recent AG report showed that the main subject of that story, Berks County DA John T. Adams, brought in $1.8 million between June 2017 and June 2018 –– more than any other county. 

Adams said this reflects his efforts to squash major drug organizations. He credited his county detectives with executing several high-profile busts, including the breakup of a large synthetic marijuana ring that generated hundreds of thousands of dollars.

“Part of our fight against the drug trade is to strip the profits that are made by the drug dealers and the drug organizations so they can’t reap the benefits of their illicit activity,” he said. “[Forfeiture] takes away the profits of their drug dealing. It takes away their incentive to sell drugs.”

Adams said his office had recently raised the minimum amount of cash it would seize to $500 in most cases to prevent instances in which innocent people surrendered property because it was too costly to fight back.

Adams acknowledges that the state’s forfeiture laws hold some potential for abuse — that it is largely up to individual DAs to implement controls on property confiscation.

“We know there’s a lot more scrutiny now,” he said. “We welcome that.”

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SCOTUS appears poised to narrow state asset forfeiture

A majority of the U.S. Supreme Court seems ready to make it more difficult for states to confiscate cars, houses and other property that is even tangentially used in the commission of a crime, reported NPR. It's a process legally known as civil asset forfeiture and was argued before the court this week.

That would be a victory for Tyson Timbs, whose $42,000 Land Rover was seized by the state of Indiana after he was arrested for selling a small amount of heroin to undercover cops for $400. A trial judge ruled that taking the SUV was a grossly disproportionate punishment, on top of other fines and a year of house detention.

An Indiana appeals court agreed. But the state Supreme Court ruled that the Constitution's ban on excessive fines, unlike nearly all the other provisions of the Bill of Rights, has never been applied to the states.

On Wednesday, Indiana Solicitor General Thomas Fisher defended that proposition in the U.S. Supreme Court, facing a chorus of skepticism from justices, conservative and liberal.

Justice Neil Gorsuch led off questioning Fisher. Whatever the scope of the excessive fines clause, he said, "can we at least agree" it applies to the states?

Not when the fine is levied against property, as it is here, Fisher said.

"Really?" shot back Gorsuch, "Come on, General!"

Justice Stephen Breyer hypothesized about the limits of Fisher's argument. Could the state, he asked, seize a "Bugatti, Mercedes or a special Ferrari, or even jalopy" if the driver was speeding 5 miles an hour over the limit?

"The answer," the pained-looking Fisher replied, "is yes."

Arguing the contrary position was Wesley Hottot of the Institute for Justice, representing Timbs.

Chief Justice John Roberts offered the most aggressive questioning, observing that there is a "well-established" distinction between fining someone $500,000 and confiscating assets used in a crime.

Hottot replied that confiscating property is "a very different animal" today than it was hundreds of years ago when pirate ships were the object of civil forfeiture. In contrast, he said, today police can go after every person's property, even in cases where the owner of the property is blameless and has not been charged.

Justice Samuel Alito pointed out that in this case, Timbs had been convicted of a crime. That's correct, Hottot replied, noting that the trial judge in this case sentenced Timbs at the low end of the scale and ruled against the state's attempt to confiscate the truck, saying it was disproportionate.

Several justices wanted Hottot to clarify whether he was asking the court to adopt a proportionality rule.

Not at this stage, Hottot said. All we are asking is that the court overrule the Indiana Supreme Court and declare that the Constitution's ban on excessive fines applies to the states, not just the federal government. That, he said, would give the lower courts the opportunity to work out what standards to apply.

Roberts opined that that may be like asking the court to buy a "pig in a poke."

"You say, don't worry what it means," Roberts said, "just incorporate it [to apply to the states] and then figure it out later on."

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