Highway Robbery by the Highway Patrol:
Civil Asset Forfeiture and Modern Law Enforcement
By Brad Hargett
Imagine a family driving along the highway and suddenly being pulled over for a minor traffic violation. Instead of issuing a ticket the officer searches the vehicle and finds over $6,000 in cash. Now imagine that officer threatening the family with money laundering and child endangerment charges unless the parents waive their rights to challenge the seizure of cash. This scenario did not take place in some banana republic without rule of law. This occurred in the great state of Texas and was presumably legal.
How Civil Asset Forfeiture Works
Civil asset forfeiture rests on the legal fiction that property can be guilty of a crime. This leads to bizarre court proceedings such as United States v. Approximately 64,695 Pounds of Shark Fins. This process is also divorced from the supposedly underlying criminal charges, meaning that even if acquitted of a criminal charge of drug trafficking the defendant’s car may still be seized via civil asset forfeiture. In fact, one study has found that “80% of people whose property was seized by the federal government were never charged with a crime.” Generally, in order to challenge the seizure the property owner must prove his or her own innocence. Under the “innocent owner” defense a property owner is “required to prove a negative: that he did not know or should not reasonably have known that his truck was being used illegally.”
Federal law initially limited seizures to cash or property related to the production of drugs or other crimes. Gradually, agencies were allowed to seize property purchased with the proceeds of such illicit activity. For example, initially, the FBI could seize a house if drug traffickers used it to cut and repackage cocaine. Now, agencies can seize the house of the drug dealer if he used the proceeds from the sale of that cocaine to pay his mortgage. This practice has only increased since the enactment of the Comprehensive Crime Control Act of 1984 and subsequent passage of state civil asset forfeiture statutes.
Civil asset forfeiture has been lauded as a boon to law enforcement in the fight against organized crime, the drug war, and even terrorism. The Department of Justice argued in 2008 that civil asset forfeiture deters crime, incentivizes local police to enforce laws against drug use and distribution, and helps fund cash-strapped police departments. When used properly, the ability to seize ill-gotten proceeds undoubtedly is one of the most powerful weapons against drug cartels and other organized crime. The process affects a criminal organization’s bottom line rather than simply locking up low-level, dispensable members of the gang or cartel. In addition, seized funds are often re-invested in law enforcement equipment and training, theoretically leveling the playing field between cash-flushed cartels and cash-strapped cops.
Problems with Civil Asset Forfeiture
However, this incredibly powerful weapon has the potential to catch innocent citizens in the cross hairs. In states with very little oversight, the civil asset forfeiture process is increasingly seen as an easy way to fund cash-strapped police departments and city governments. Purposefully or not, these practices often affect people least likely to afford the initial seizure much less the cost of hiring an attorney to challenge it. Disputing the popular notion that civil asset forfeiture targets drug kingpins and cartels Lee McGrath, of the Institute for Justice notes that “in reality, it’s small amounts [of money], where people aren’t entitled to a public defender, and can’t afford a lawyer, and the only rational response is to walk away from your property, because of the infeasibility of getting your money back.” It stands to reason then that if aggrieved property owners do not often challenge these seizures there is little reason to reign in the practices. From a law enforcement agency’s perspective budget shortfalls can be compensated for by civil asset forfeiture with no consequences. If civil asset forfeiture was originally considered a deterrent to drug cartels, one is left with the question: In modern execution, where is the deterrent for police abuses?
In 2000, Congress passed the Civil Asset Forfeiture Reform Act (CAFRA). Notably, this act increased the burden of proof to require the government to show by a preponderance of the evidence that the property is subject to forfeiture. The prior burden of proof was probable cause; in effect, an indictment prima facie evidence that the property was subject to forfeiture. Perhaps the most important aspect of CAFRA was that it clarified the “innocent owner” defense noted above. Subsequently, property owners had a specific guideline to challenge the forfeiture by arguing that the owner “‘did not know of the conduct giving rise to the forfeiture’ or, upon learning of the conduct, did ‘all that reasonably could be expected under the circumstances to terminate such use of the property.’” For example, if a homeowner’s son was selling marijuana out of the home, under federal law, the parent could avoid forfeiture by showing that she was unaware of the drug dealing, kicking the offender out of the home, or informing the police of the illegal conduct. As noted above, the innocent owner defense is problematic because it forces the aggrieved property owner to prove a negative. Nonetheless, the defense was a welcome reform at the dawn of the twenty first century.
In the wake of CAFRA, several states have attempted to reform civil asset forfeitures. For instance, one Maryland state senator has proposed more modest reforms, such as requiring police to publicly “report the types of property seized, the crimes with which they are believed to be linked, and what happened in any related criminal case.” Although this wouldn’t directly benefit an aggrieved property owner, one would hope that public scrutiny would deter some of the worst abuses of the process. Ultimately, this bill stalled in the Maryland state senate. Moreover, even where states have passed reform measures, law enforcement agencies have skirted the reforms by partnering with federal agencies through equitable sharing programs or lobbied for an outright repeal of civil asset forfeiture reform statutes.
In a recent ACRCL blog post, my colleague, Stephen McKitt, recently discussed the turmoil in Ferguson, Missouri by asking the eternal question: “Who watches the guardians?” Unfortunately, in the context of civil asset forfeiture, law enforcement agencies have avoided public scrutiny for far too long. Reform efforts, especially at the state level, are piecemeal and often unsuccessful. Currently, law enforcement agencies have nothing to lose and everything to gain by aggressively seizing assets. The problem is complex and, as such, can only be addressed with comprehensive reforms, including appointed counsel for all aggrieved property owners, public reporting of seizures, restrictions on the use of seized funds, and proper training to reduce roadside abuses. Without such reforms the highway patrol will continue to enjoy a license to engage in highway robbery.
 Sarah Stillman, Taken, The New Yorker, Aug. 12, 2013, http://www.newyorker.com/magazine/2013/08/12/taken?currentPage=all
 Radley Balko, Utah Lawmakers Quietly Roll Back Asset Forfeiture Reforms, The Washington Post, Jan. 8, 2014, http://www.washingtonpost.com/news/opinions/wp/2014/01/08/utah-lawmakers-quietly-roll-back-asset-forfeiture-reforms/
 Stillman, supra note 1.
 Abby Simons, Law Requiring Guilt for Forfeiture of Property Sparks Debate, Star Tribune, Mar. 7, 2014, http://www.startribune.com/politics/statelocal/249088941.html
 J.F., What Civil-Asset Forfeiture Means, The Economist, Apr. 14, 2014, http://www.economist.com/blogs/economist-explains/2014/04/economist-explains-7
 See, Radley Balko, Rise of the Warrior Cop: The Militarization of America’s Police Forces 152 (Public Affairs Publishing, 1st ed. 2013).
 El-Ali v. State, 428 S.W.3d 824, 826 (Tex. 2014)
 Stillman, supra note 1.
 John L. Worrall, Problem-Oriented Guides for Police Response Guides Series No. 7: Asset Forfeiture 13-14 (Center for Problem-Oriented Policing, Inc. 2008), available at http://www.cops.usdoj.gov/Publications/e1108-Asset-Forfeiture.pdf
 Daniel H. Cicchini, From Urbanization To Globalization: Using The Federal Money Laundering And Civil Asset Forfeiture Statutes In The Twenty-First Century Drug War 41 Rutgers L.J. 741, 753 (2010) (discussing efficiency of deterring drug cartel leadership rather than incarcerating low-level offenders via asset forfeiture).
 Balko supra note 6 at 222. Of course this can be troublesome in another sense. For example, when drug interdiction task forces sit on a war chest they may just decide to spend that cash on a deeply discounted MRAP from the Pentagon’s 1033 program. It is not a coincidence that civil asset forfeitures have skyrocketed as suburban police forces are becoming more and more militarized.
 Stillman, supra note 1 (noting that the Detroit Police Department has increased seizure raids in response to the city’s bankruptcy and the department’s subsequent budget slashing.)
 Brant C. Hadaway, Executive Privateers: A Discussion on Why the Civil Asset Forfeiture Reform Act Will Not Significantly Reform the Practice of Forfeiture, 55 U. Miami L. Rev. 81, 104 (2000).
 Id. at 107.
 Stillman, supra note 1. This example is drawn from the case of Mary Adams.
 Ian Duncan, Senator Proposes More Tracking for Asset Forfeiture Cases, Baltimore Sun, Mar. 1, 2014, http://www.baltimoresun.com/news/maryland/sun-investigates/bs-md-sun-investigates-asset-forfeiture-20140301,0,6043652.story; The Georgia legislature proposed a similar measure that included provisions that would strip departments of seized assets for failure to comply with reporting and use restrictions. Legislative Agenda, ACLUGA.org, http://www.acluga.org/get-involved/legislative-work/legislative-agenda/ (last visited October 5, 2014); This bill also failed to pass through the state legislature.
 Balko, supra note 2.
 Stephen McKitt, Who Guards the Guardians Themselves?, ACRCL Blog, https://alabamacivilrights.wordpress.com/2014/09/16/who-guards-the-guardians-themselves-by-stephen-mckitt/