The Justice Department’s new guidelines on civil asset forfeiture are an obscenity to our founders and the Constitution they wrote. Attorney General Jeff Sessions released the directive today he claims will actually help make sure criminals can’t keep their ill-gotten gains, but are really just an affront to the Fourth Amendment. The key factor in the new guidelines is that the federal government no longer has to pay attention to state and local laws which make it harder for police to seize assets without a criminal conviction. One of the few things Attorney General Eric Holder got right during his tenure was telling federal agencies they had to follow state law with the equitable-sharing program. Sessions is undoing this policy.
Sessions’ reasons are simple: he wants to give law enforcement more funding. There are going to be people who stop reading this piece because they believe the more money law enforcement has, the better. The problem is how law enforcement obtains that money, and whether it violates the law they’re supposed to be defending. Remember what the Fourth Amendment says:
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.
Civil asset forfeiture is different than criminal asset forfeiture. Criminal asset forfeiture requires an indictment before the government can seize your property. Civil asset forfeiture just requires the suspicion you did something wrong, and no charges have be filed against a person. In 2014, the government seized $679M in assets from criminal asset forfeiture. The civil asset forfeiture earnings were $3.9B.
Sessions would like people to believe civil asset forfeiture abuse is rare. He told reporters this morning there’s hardly any abuse.
“At the same time, we must protect the rights of the people we serve. Law-abiding people whose property is used without their knowledge or without their consent should not be punished because of crimes that others have committed.
“Now, let me just say, in the vast majority of cases, this is not an issue. Our law enforcement officers do an incredible job. In fact, over the last decade, four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court.”
The problem is these cases hardly ever get challenged, because people don’t always learn about them and property owner has to prove why the assets weren’t obtained through criminal proceeds. An elderly Nevada man ran into this problem in 2011 after being pulled over in Arizona. James Huff didn’t have his ID, but did show his medical marijuana card to the officer. The officer then got a police dog to sniff the car for drugs and seized $8400, even though no drugs were found in the vehicle. The Institute for Justice picks up on what happened next:
The officer informed Mr. Huff that he was going to confiscate the money and presented Mr. Huff with a form titled “Disclaimer of Ownership of Currency or Property.” Mr. Huff was told that if he signed the form disclaiming knowledge and ownership of the money, he would never hear from the police again, but that if he failed to do so there would have to be further proceedings. Mr. Huff refused to sign the disclaimer.
Six months later, the Apache County Attorney’s office published a Notice of Pending Forfeiture and Notice of Seizure for Forfeiture of “$8400.00 in U.S. Currency” in the local newspaper. The notice was to “all persons claiming to be an owner of or an interest holder in any of the property described simply as ‘$8400.00 in U.S. Currency.’” The notice was so generic that it did not even state the circumstances under which, or the date on which, the money was seized.
Not realizing that the forfeiture action had been filed, Mr. Huff and his attorneys missed the deadline to file his notice of claim. Prior to the entry of a final judgment ordering the money forfeited, Mr. Huff’s attorneys did file a motion to dismiss the action. The judge denied the motion to dismiss because Mr. Huff’s failure to file a timely notice of claim meant that he was not a party to the proceeding. The judge entered a final judgment ordering the currency forfeit.
See the problem? A general notice was given out on the property, and Huff never got the chance to defend it in court. Now Sessions’ order does say the federal government has to “send notice to interested parties within 45 days of the date of seizure,” which on the surface makes it seem like people will be given a chance to dispute the property. The problem is the DOJ is not defining how those notices will be given out. Will the government send money to the attorney of the person whose property was seized or will it be a “general notice” like the Arizona example? The fact the government won’t say what kind of notice will go out is beyond ridiculous.
Sessions would like people to believe civil asset forfeiture abuse is rare. But an Office of Inspector General report from March 2017, found the opposite (emphasis mine).
First, we found that 85 of the 100 seizures occurred as a result of interdiction operations at transportation facilities, such as airports, parcel distribution centers, train stations, and bus terminals, or as a result of a highway interdiction or traffic stop. All but 6 of the 85 encounters or situations that led to interdiction seizures were initiated on the observations and immediate judgment of DEA agents and task force officers absent any preexisting intelligence of a specific drug crime (the remaining six were based on preexisting intelligence). This is particularly relevant in light of the findings in our 2015 report highlighting potential risks to civil liberties associated with cold consent encounters that occur during transportation interdiction operations.
Second, the DEA could verify that only 44 of the 100 seizures, and only 29 of the 85 interdiction seizures, had (1) advanced or been related to ongoing investigations, (2) resulted in the initiation of new investigations, (3) led to arrests, or (4) led to prosecutions. When seizure and administrative forfeitures do not ultimately advance an investigation or prosecution, law enforcement creates the appearance, and risks the reality, that it is more interested in seizing and forfeiting cash than advancing an investigation or prosecution.
It wouldn’t be surprising to see more of these incidents pop up, as the new directive happens. Sessions is making a horrible, awful, no-good, very bad decision in his new orders for law enforcement. Law enforcement should be able to seize property from people convicted or charged with a crime. The fact Sessions is willing to ignore state laws limiting civil asset forfeiture shows Congress needs to act to get this issue under control by passing federal asset forfeiture reform (which they should have done anyway). Congress is the one who makes the rules of government, and they need to start acting like it, instead of leaving it up to bureaucrats to make up even more odorous, unconstitutional policy.