The Beginning Of The End?

By Brent Cochran

At least, let us all hope so.

First things first, what is Civil Asset Forfeiture (CAF)?

Civil asset forfeiture is a legal tool that allows law enforcement officials to seize property that they assert has been involved in certain criminal activity. In fact, the owner of the property doesn’t even need to be guilty of a crime…

CAF has roots going back at least as far as the 1600s in Great Britain. It was primarily a tool used in maritime law. Much easier to seize a ship owned by someone than attempt to track down that someone who was possibly out to sea.

It made its appearance in America from the nation’s founding, but really didn’t rise to prominence until the 1980s and the War on Drugs. CAF was used to seize the property of suspected drug dealers and prevent them from using these, assumed, ill gotten gains to further their activities or, and this was pretty explicitly stated, to prevent them from using piles of drug money to fund legal defenses.

Yes, it was stated policy to prevent US citizens from mounting a legal defense to criminal charges. But it was just those awful drug dealers, so who cares?

Fast forward 30 years and now CAF has become part and parcel of every police force in the US, as well as federal law enforcement agencies. Many police forces actually write the proceeds of CAF into their budget. They’re literally counting on seizing enough property to meet their budget.

A few minutes searching the internet turns up story after story of this power run amuck. The city of Tenaha, Texas was systematically targeting out of state drivers and seizing cash under the guise of a “drug interdiction program.”

Hundreds, if not more than a thousand, people have been stopped under the interdiction program. From 2006 to 2008, police seized approximately $3 million from at least 140 people as part of the program. None of the ACLU’s clients were ever arrested or charged with a crime after being stopped and shaken down.

About 5 years ago, the DEA and a local police force seized the Motel Caswell in Massachusetts from its owners because of “drug activity on the premises.” Ultimately, after the Institute for Justice represented them pro bono, the owners regained possession of their property. Why was the property really seized? Well….

During depositions, Special Agent Vincent Kelly told lawyers that he was tasked with finding properties to be forfeited. Often times, he said, the agency wouldn’t go after a property unless an owner had more than $50,000 worth of equity.

Motel Caswell was worth $2 million.

It has become increasingly obvious that federal, state, and local law enforcement agencies are engaged in a systematic program of seizing property from private citizens for profit.

At least eminent domain seizures have a basis in the Constitution. What’s that you say? Surely there must be authority for this kind of extreme action? In my opinion, no, there isn’t.

The 5th Amendment, again, in my opinion, is crystal clear on this. In states, in pertinent part:

…nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I’m not sure how much plainer that language can be. The State cannot seize the property of citizens with due process and/or just compensation. CAF makes a mockery of the 5th Amendment. You do not have to be charged with a crime, you do not even have to be arrested, to have your property seized.

If you’re aghast and angry at this point, good. But I have excellent news. States are starting to push back. In the last two weeks, two states in particular have passed extremely strong anti-CAF laws.

Florida: On April 1, Gov. Rick Scott signed into law S.B. 1044. The bill received bipartisan support in both the State House and Senate. The law states that a person must be arrested and charged with a crime before seizure can take place AND that the property seized must be classified as “contraband”. (Contraband is generally defined as “property that has been illegally imported or exported.) What this means is that the police must arrest you, charge you with a crime, and prove that the property is directly connected to the crime before they can seize it.

Nebraska: On April 19, Gov. Pete Ricketts signed LB 1106. This bill requires that there be an actual, honest to God, conviction before property can be seized. Nebraska went even further and did their best to completely eliminate CAF and any possible workaround with the feds.

… is especially significant in that they’ve also curbed the ability of local and state authorities to circumvent more restrictive state law in favor of the federal government’s comparatively lax equitable sharing standards…

…LB 1106 now prohibits the transfer or referral of assets to federal authorities unless the value exceeds $25,000, the assets are seized by a federal agent themselves, and the individual from whom the assets are seized is subject to federal prosecution.

Nebraska is now the 10th state to require a conviction before seizure. The other nine being California, New Mexico, Minnesota, Montana, Nevada, Vermont, Missouri, North Carolina, and Oregon.

In case you think this is much ado about nothing, I mean, how much could they really be seizing…in 2014 alone, the Treasury and Justice Departments seized roughly $5 billion worth of assets. Keep in mind, this is just federal. That number would undoubtedly increase were you to add in the assets seized by state and local agencies.

Several of my friends, in discussing the topic, referred to CAF as “piracy”. It’s actually much worse than that. Piracy was committed by outlaws. Pirates were hunted and harshly punished when caught. CAF is bureaucratic tyranny. Agents of the state, acting under the color of authority, are seizing the property of private citizens for, in many cases, nothing more than their own gain. It’s as if Federal and State law enforcement agencies suddenly became pirates, but didn’t lose their legitimacy.

Civil Asset Forfeiture is unConstitutional, it is violence committed by the State against citizens almost purely for the monetary enrichment of the seizing institution. The good news is that more and more states are pushing back and either severely curtailing CAF or eliminating it altogether. Let us hope and pray that the trend continues.