Lawmakers Seek to Clamp Down on Abuse-Prone Civil Asset Forfeiture

By Zoey DiMauro | August 13, 2014 | 3:20pm EDT



( Rep. Tim Walberg (R-Mich.) and Sen. Rand Paul (R-Ky.) have introduced two different bills aimed at reforming civil asset forfeiture, a little-known law enforcement tool that can be used to seize people’s cash, cars or other property even if the owner has not been charged with a crime.

“My legislation raises the level of proof necessary for government to seize property, it restores the principle of innocent until proven guilty by placing the burden on the government  to prove a property owner had knowledge of criminal activity, and restricts the uses of equitable sharing agreements between the Department of Justice (DOJ) and local or state law enforcement agencies that infringe upon state laws,” Walberg said during a recent discussion on civil asset forfeiture sponsored by the Heritage Foundation.

Paul’s bill, the FAIR Act, will “ensure that government agencies no longer profit from taking the property of U.S. citizens without due process, while maintaining the ability of courts to order the surrender of proceeds of crime," he said in a press release.

Because of the low evidentiary standards involved in civil asset forfeiture, property owners are often considered guilty until they prove themselves innocent, according to a report by the Institute for Justice (IJ) entitled “Policing for Profit.”

In one example, Matt Lee was driving across the country from Michigan to interview for a job in California when a deputy sheriff in Nevada pulled him over.  After questioning Lee about how much money he had, the officer seized Lee’s $2,400 in cash, a loan from his parents, claiming it was drug money.

Lee only got his money back three years later when Humboldt County settled another case in which the same deputy sheriff was accused of illegally confiscating $50,000 in casino winnings from Tan Nguyen.

In 42 states, at least 50 percent of forfeiture assets - including cash and vehicles -  are kept by the police, giving law enforcement an added motivation to seize property. “The combination of tremendous financial incentives and limited protections for property owners creates a situation ripe for abuse,” the IJ report stated.

In addition, police sometimes hold off on seizing property until it becomes usable, like waiting until drugs are sold for cash, said Washington Post blogger Radley Balko during the Heritage Foundation event.

A local Nashville TV station found that “by about a three to one ratio, the police were pulling over suspected drug couriers as they were leaving Nashville” rather than when they were entering the city, Balko reported.

“A car full of drugs coming into a city is of no use in terms of generating revenue,” Balko explained. “A car leaving a city is much more likely to be full of cash than drugs.”

Though some states have passed laws sending forfeited money into an education fund or the state treasury, any property seized by federal agencies must go back to law enforcement, according to the IJ report.

But when state police teams up with federal government, seized assets are often split between the two, despite what the state law may be.

As a result, states with more restrictive civil asset forfeiture laws will frequently engage in equitable sharing, or state/federal collaboration. Criminologists have found that “states that require law enforcement to share forfeiture proceeds are more likely to engage in equitable sharing in order to avoid state restrictions,” the IJ report noted.

The forfeited money is sometimes spent on frivolous purchases, like the margarita machine purchased by a district attorney’s office in Texas that Rep. Walberg says “has been purchased at the expense of liberty.”

According to Heritage, seized property is automatically kept by the authorities in the majority of federal civil forfeiture cases because the owners do not mount a legal challenge.

Walberg’s proposed legislation would ensure that people whose property is confiscated have access to an attorney. In one example cited, a doctor whose property was seized could not afford a lawyer. Yet he was not granted one by the court because he was considered too wealthy to need financial aid.

“More often than not, the official notice of seizure and proceedings scares individuals into settling for pennies on the dollar,” said Sarah Kuziomko, a spokeswoman for Walberg. ”And therefore we want to inform the defendant property owners as much as possible of their ability to challenge the seizure.”

Although the bills introduced by Walberg and Paul are not companion bills, they do have much in common.

However, Paul’s bill mandates that state police adhere to state laws in equitable sharing cases, while Walberg's bill, which currently has just one co-sponsor, would rely on congressional oversight to ensure that agreements between the DOJ and local police departments are not made for the purpose of circumventing state laws.

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