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Civil Asset Forfeiture: What’s the problem?

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In a meeting with law enforcement officers from around the country, President Trump cracked a controversial “joke” in which he said he could “end the career” of an unnamed Texas State Senator, presumably for his (or her?) fight to reform Civil Asset Forfeiture.

Whether Trump meant it or not, he has significantly increased interest in the issue in Austin and around the country. But what is Civil Asset Forfeiture?

From the United States Justice Department:

“The Department of Justice Asset Forfeiture Program encompasses the seizure and forfeiture of assets that represent the proceeds of, or were used to facilitate federal crimes. The primary mission of the Program is to employ asset forfeiture powers in a manner that enhances public safety and security. This is accomplished by removing the proceeds of crime and other assets relied upon by criminals and their associates to perpetuate their criminal activity against our society. Asset forfeiture has the power to disrupt or dismantle criminal organizations that would continue to function if we only convicted and incarcerated specific individuals.”

Plainly, it is the practice of law enforcement agencies to seize property they believe to be used in criminal activity, particularly in an effort to combat trafficking.

Proponents argue it cripples the ability of drug and human traffickers to move products and large sums of money to support their criminal enterprises.

But the program is opposed by many on the Left and the Right. Groups on the Left argue the program unfairly targets racial minorities. Groups on the Right argue it violates the Fourth Amendment because there is no requirement for conviction. The police can seize citizens’ property simply on suspicion.

The Fourth Amendment reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

But over the last few years, several high profile cases have brought attention to the absurd side of the system.

State of Texas v. $6,037 is the name of a court case out of Tenaha, Texas in which the State brought charges against a stack of cash. Indeed, the owner of the money was not charged with any crimes, but the case was brought against the property. Law enforcement agencies are using Civil Asset Forfeiture rules to seize property because inanimate objects do not have Constitutional protections such as humans do.

Ron Henderson was pulled over in Tenaha, and though he had no drugs in his vehicle, the police claimed reasonable suspicion to seize his cash because he was driving from Houston to Linden. The department says Houston is a place known to be a place where drugs are acquired, and Linden is known to be a place to where drugs are deposited.

Henderson was told he could choose to surrender his cash, or face felony charges for “money laundering” and “child endangerment” because there were children in the car, as he was suspected of carrying drugs. It bears repeating, the officers found no drugs in the car. If he chose not to surrender the cash, the charges would land him in jail, and the children would be taken to foster care. He surrendered the cash.

In 2015, the Sourovelis family in Philadelphia had their home seized when police arrested their son on a $40 drug charge. When they complied and went to the court to plead their case before a judge, they found no judge in the room, rather a prosecutor demanding their signature on some paperwork.

In 2012, Mandrel Stuart was driving with $17,550 in cash to purchase equipment and supplies for his barbecue restaurant in Virginia. He was pulled over for his tinted windows, and though he was not issued a citation or charged with any crimes, his money was confiscated by the officer. Eventually the money was restored to him, but not until after he had lost his business.

In 2011, Baltimore church leaders, Jose Sorto and Victor Guzman, were carrying $28,500 in offerings to buy land to plant a church in El Salvador. They were pulled over in Virginia for speeding. Guzman told the officer about the cash, presented documents of its purpose, and consented to a search of the vehicle, believing he had done nothing wrong. The officer did not issue a citation, but the money was seized. The money was returned after an attorney volunteered his services and had to prove that the money was not involved in criminal activity.

In 2010, Vincent Costello and his girlfriend were travelling through South Carolina with $32,000 in cash for renovations on a house they had purchased in Florida. They were pulled over for a cracked windshield. Again, no citation was issued, and no charges were filed, but again, the money was seized – including all the change in Costello’s pocket. After hiring an attorney, and being forced to settle with the government for half the money, he only got $7,000 back.

Throughout the country, there is almost no requirement, restriction, or limitation on how these funds are used.

Consider a Citizen-Police Review Board hearing in Columbia, MO, where Chief Ken Burton said, “There’s some limitations on it – actually, there’s not really on the forfeiture stuff.” He went on, “We usually base it on something that would be nice to have… We try not to use it for things we need to depend on… Its kind of like pennies from heaven. It gets you a toy or something that you need.”

The Houston Chronicle reported on a 2005 case where civil asset forfeiture funds were used to buy over $300 in liquor and $139 for a margarita machine for a party sponsored by the Montgomery County District Attorney.

Of the $64 million of assets seized by the City of Philadelphia, $0 was spent on drug-free community education. Rather, all of it was used to pad the city’s budget and pay prosecutor and police salaries.

When President Obama nominated Loretta Lynch for Attorney General, there was backlash from the Left and Right over her support for this controversial program.

In Texas, Republican Sen. Konni Burton has authored legislation to reform this system for the second session in a row.

She held a press conference on Wednesday with Democratic Sen. Juan Hinojosa, Republican Rep. Matt Krause and Matt Schaefer, and Democratic Reps. Senfronia Thompson and Terry Canales. Each member of this bipartisan group of legislators has legislation this session to reform Civil Asset Forfeiture in some manner.

The Chief of Mansfield Police Department appeared in dress uniform at the end of the conference to make his displeasure known. Sen. Burton addressed his concerns very frankly and reassured him that she supports law enforcement, but that she believes strongly in people’s rights to due process and property.

This session, she has authored SB 380 which replaces civil asset forfeiture with “criminal asset forfeiture” whereby an individual must be arrested on felony, misdemeanor, or other charges before his or her property could be seized, and he or she must be convicted to finally forfeit the property.And if the individual were to be acquitted or found not guilty of wrongdoing, the property would be restored to the owner.

Under current rules, a person might go to collect their property after trial, and find that it has already been disposed of by the law enforcement agency. And while poor citizens have the right to a court-appointed attorney for criminal proceedings, they do not have that right for civil proceedings, so they will have to find and pay their own attorneys. Many who cannot afford this choose to surrender. If SB 380 passes, the state would be liable for the value of those goods if they are disposed or damaged after a person is cleared of wrongdoing in criminal proceedings.

Another problem with Civil Asset Forfeiture in Texas that Burton addresses in her bill is reporting. According to her office, right now there are minimal reporting requirements. Law enforcement agencies and district attorneys have to submit to the Attorney General’s office how much money they are getting from forfeitures, but they are not required to specify how the money was obtained (drug activity, murder, etc.) or how they spent it. But even with these minimal standards of reporting, the Attorney General cannot really enforce it. In fact, in an interim hearing in the House last year, the AG’s office testified that 500 offices did not file their reports.

SB 380 requires agencies report the number of forfeiture cases, the number of items seized, the market value of those items, and the number of occurrences of each type of offense — such as, whether they were tied to murder, drugs, or traffic violations. Her bill also establishes a person’s right to challenge the validity of the seizure, even before a criminal trial.

SB 380 also specifically addresses the concerns raised in the Sourovelis case: a person’s property cannot be seized just because someone else used it to commit a crime.

Burton’s office expressed optimism that the momentum they’ve seen in the last week and a half will lead to real legislative action in some form before this session ends.

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