Recently, Senator Rand Paul introduced federal legislation to address the abuse of civil asset forfeiture statues by local, state and federal law enforcement agencies. Civil asset forfeiture allows police agencies to retain the property of ordinary citizens if the police believe it was used in illegal activity. However, the government is not required to prove the underlying illegal activity and often keeps assets, especially cash, even if the person is never charged with a crime. Paul Rand’s bill S. 2644 (FAIR Act) would require the government prove its case with clear and convincing evidence before forfeiting seized property.
As with many laws, civil asset forfeiture began with good intentions—that criminals should not be able to retain cash and other property that is used in illegal activities. However, most civil asset forfeiture laws were written so that the police departments that obtained the assets could use them as they saw fit. Consequently, police were motivated to obtain as many assets as possible to pay for advanced equipment and other perks. In the wake of the recession, seizures were even used to pay salaries. Moreover, the laws did not require the government or police to prove that the assets were actually used in illegal activity. Rather, the police only had to have a suspicion that the assets were being used illegally. Although a person who has had their assets seized and is never charged with a crime can request the assets returned, it is a difficult and expensive process. This lead to rampant abuses by police departments who would focus their seizure activities on low-income, African-American and Hispanic people who did not have the resources get their assets returned.
Consider the case of Morrow v. Tenaha. According to the ACLU website:
Beginning in 2006, under the guise of looking for criminal activity, the police in Tenaha, Texas stopped, searched, and often seized property from Blacks and Latinos traveling through town with no suspicion of criminal activity.
The police threatened that if the travelers did not turn over their cash and other valuables, they would be arrested on money laundering charges and, in some instances, have their children taken by Child Protective Services. If they turned over the cash, they would be let go. Unsurprisingly, many victims simply turned over their money. Law enforcement officials used the seized assets to enrich their offices and themselves and justified their actions via Texas’s permissive “civil asset forfeiture” statute. Those people who wanted to recover their money needed to hire lawyers to challenge the seizures, a process that was expensive and not practical for many. Several individuals affected by this practice joined a class-action lawsuit against Tenaha and several city and county officials, challenging these illegal stops and seizures. The ACLU joined the case, Morrow v. City of Teneha, et al., in July 2012. The ACLU reached a settlement in the case whereby no property may be seized during a search unless the officer first gives the driver a reason for why it should be taken. All property improperly taken must be returned within 30 business days. And any asset forfeiture revenue seized during a traffic stop must be donated to non-profit organizations or used for the audio and video equipment or training required by the settlement.
Similarly, the ACLU assisted in finding justice on the following case.
In November 18, 2009, Shukree Simmons, who is African-American, was driving with his business partner on the highway from Macon, Georgia, back to Atlanta after selling his cherished Chevy Silverado truck to a restaurant owner in Macon for $3,700 of sorely needed funds. As Mr. Simmons passed through Lamar County, he was pulled over by two patrol officers who stated no reason for the stop, but instead asked Mr. Simmons numerous questions about where he was going and where he had been, and even separated him from his business partner for extended questioning. The officers searched both people and the car, finding no evidence of any illegal activity. A drug dog sniffed the car and did not indicate the presence of any trace of drugs. Notwithstanding the total lack of evidence of criminal activity and Mr. Simmons’s explanation that he was carrying money from selling his truck, the officers confiscated the $3,700 on the suspicion that the funds were derived from illegal activity, pursuant to their authority under Georgia’s civil asset forfeiture law. Despite the fact that Mr. Simmons mailed his bill of sale and title for the truck to the officer, he was told over the phone that he would need to file a legal claim to get his money back.
For most people in Mr. Simmons’s position, the story would end there. To challenge this activity and get their money back, victims of seizures bear the burden of initiating a claim for the money. If no claim is filed, the police can keep the money. It is unlikely that regular folks whose money is taken will be equipped to seek out the appropriate statute and comply with the requirements for making a claim. While lawyers are available to do this work, the price is high — in Georgia, a standard retainer fee is $5,000. Many people lack the resources to pay that price, and even if they had them, it would not make sense to pay more than the value of the seized funds.
Luckily for Mr. Simmons, he spoke to a lawyer who referred his case to the ACLU, which became involved in December 2009. The ACLU sent a letter to Lamar County Sheriff Larry Waller asserting Mr. Simmons’s right to the money and seeking its return. Waller responded that he agreed that the state had no right to the funds, but directed Mr. Simmons to initiate a claim. The ACLU pushed back, and in early January the Sheriff returned the money to Mr. Simmons.
Mr. Simmons’ case demonstrates the extent to which civil asset forfeiture laws, formed to assist officers in fighting drug crimes, are misused against people of color in cases in which there is no evidence of criminal activity. Mr. Simmons was never arrested and never charged. Instead, the Sheriff’s department took his money, admitted that it has no right to keep the money, and told Mr. Simmons that he must make a legal claim to get it back.
Many states attempted to rein in the abuses of local police departments by passing laws that require the government to prove its case and/or requiring the funds not be given to the police department. However, the federal government has a program known as “equitable sharing” which allows local agencies to circumvent state laws. Under this program, a local police agency involves a federal agency such as the DEA or ATF. The agency then “federalizes” the case and is able to take the assets without being subject to the state law. The federal agency then returns up to 80% of the funds to the local agency that reported the case. Sen. Rand’s bill would also require local police agencies to follow state law when engaging in civil asset forfeiture—thereby eliminating the federal loophole.
Here in Nevada, such a law would have little effect on the average person, since the police can retain up to $100,000 in seized property before needing to dispose of the excess. Nevada is clearly in need of its own state-wide reform of civil asset forfeiture laws.
Sen. Rand’s bill is a step in the right direction but it is unclear if it will gain traction in the Senate. Until there is significant reform of the federal asset protection laws, cash-strapped local police departments will continue to be motivated to take money and other assets from people who have not done anything wrong and who can least afford to pay.