The Biggest Thief – Feds to Take Innocent People’s Property Seized by State and Local Agencies
On July 19, 2017, Attorney General Jeff Sessions signed an Executive Order that significantly increases the rights of states and local law enforcement to steal property from its citizens without due process.
He did this via Executive Order 3946-2017, in which he directed that “federal forfeiture of property seized lawfully by state and local law enforcement is authorized whenever the conduct giving rise to the seizure is in violation of federal law.”
It may sound simple enough, but the repercussions of this new order are chilling. They also virtually reverse a policy set by former president Obama’s attorney general, Eric Holder, which banned the Federal Civil Asset Forfeiture Policy that Sessions has reinstated. Those were Executive Orders previously put in place: on January 16, 2015, and on January 12, 2015, respectively.
With Sessions’ new order in place, the government is back on track to begin seizing billions of dollars of goods annually, with state and local agencies as its strong partners in crime.
Civil forfeiture itself has been a long-standing approach throughout the United States. It allows law enforcement officials to seize property held by alleged criminals. This property could be in the form of items like stolen property kept by alleged burglars and would be held in theory with the intent that it will be returned to those it was taken from. It could include cash and drugs directly tied to illegal narcotics or other trafficking.
But it could also have nothing to do with any of that and only involve property seized falsely, alleging that a crime might have taken place. It also can and does happen, mostly, with minimal or no due process of the law.
Many people are familiar with what is known as “criminal forfeiture,” in which property is taken from a criminal in connection with an actual criminal conviction of the individual involved. Bank accounts or property can be seized if the owner of those bank
accounts or property is convicted of a crime. In criminal forfeiture, the criminal or criminals are the ones on trial, with rights to a jury trial, due process and more as guaranteed by the U.S. constitution and a collection of federal and state laws.
Things are very different when it comes to the concept of civil forfeiture. In what is likely an effort to skirt the constitution, law enforcement claims it is taking this action not against people but actual inanimate objects alleged to be somehow connected with the participation of a crime. Those items can be seized under civil forfeiture regardless of whether the owner of the property is either guilty or innocent and without the need to even charge the owner with a crime. Legally, civil forfeiture cases are what are called “in rem proceedings,” which translates literally as “against a thing.” In effect, the property itself is what is charged with a crime, with cases like “State of Texas v. One 2004 Chevrolet Silverado” or “United States v. One Solid Gold Object in Form of a Rooster” being examples of the types of cases that are filed.
This line of thinking is, of course, entirely insane. A pile of cash or vehicle can’t commit a crime. They are not conscious and can’t make decisions. They do not move on their own.
With civil forfeiture, the property is often seized before the cases are even filed. With the cases being against the property itself, rather than people, the owners of the property generally do not have the rights they would in a criminal action. There is no right to have a lawyer deal with the situation, for example. Even the concept of “innocent until proven guilty” often does not apply, allowing legal authorities to seize assets and force those wanting to recover those assets to spend considerable money and time to prove the assets are “innocent” and unconnected to a crime – and to get them back.
The stated justification for this kind of forfeiture was reinforced recently by Sessions when he spoke with law enforcement officials at a meeting in mid-july 2017, where he said, “As any of these law enforcement partners will tell you and as President Trump knows well, civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back illgotten gains and prevent new crimes from being committed and it weakens the criminals and the cartels.” He went on to justify the value of the concept further by saying that “even more importantly, it helps return property to the victims of crime.”
If all (or any) of that were true, this change in policy might be a good thing. Civil forfeiture is, based on many surveys, something most Americans feel should be used rarely and with the laws protecting the owners’ rights significantly upgraded. They feel this so strongly that many states have made civil forfeiture much more difficult to do without more in the way of evidence, approvals for the seizure, notification to owners and due process. Part of why these state reforms have been implemented is that the forfeiture itself was becoming so common that it was a major way to increase the revenues and budgets of local and state authorities without their having to directly hit up taxpayers for more direct funding.
As just one example of what can happen without such controls in place, take the case of Utah. In 2016, the police in that state seized a total of $1.4 million in cash from people in civil asset forfeiture cases. Federal law enforcement people also operating in the state seized an additional $1.3 million in forfeited assets, with some of that coming back to the states. And a study of the 400 cases evaluated by independent third parties looking at the Utah situation revealed that in most of the cases people did not step in to fight the seizures.
As further examples, an analysis by the Institute for Justice of the period from 2002 to 2013 showed that total civil asset forfeitures for just 14 states (Arizona, California, Hawaii, Louisiana, Massachusetts, Michigan, Minnesota, Missouri, New York, Oklahoma, Pennsylvania, Texas, Virginia and Washington) – states selected because it was relatively straightforward to look up their records – amounted to over $250 million just in 2013 alone. In 2012, Texas had the highest dollar figure of these totals, with $46 million accumulated from such seizures. In second place was Arizona, with $43 million, and Illinois came in third, with $20 million.
Also of note is that, based on comparisons of the Institute for Justice data for the value of the seized civil assets to law enforcement budgets, it turns out those forfeited asset total revenues were calculated to be an average of 14% of the state and local law enforcement budgets across the United States. With that large a dependence on those forfeited assets, it’s no wonder state and local officials might be fighting to hang on to what they have received.
And at the federal government level, the totals are even more amazing. As of 2014, the annual deposits to the federal government’s depositories coming from civil forfeiture amounted to $4.5 billion. Records also show that from 2001 through 2014, the Department of Justice and the U.S. Treasury delivered $29 billion in total civil forfeiture revenues to the U.S. government.
The numbers were not always this high for civil
forfeitures in the past, and it does not appear that the feds are thwarting more crime but simply stealing more.
In the United States, the first laws that allowed for federal civil forfeiture applied solely to the collection of customs duties. Since the United States was founded very much on “anti-tax” policies and stayed that way for some time, and the U.S. Federal Income Tax did not even come into being until February 1913, with the passage of the 16th Amendment, customs duties and attempts to get around them were for a long time the major source of income for the federal government. Even then, court cases challenging civil forfeiture were highly protective of the people and their assets. The U.S. Supreme Court did defend the idea of civil forfeiture – but mostly to deal with international legal issues of admiralty, piracy and direct customs enforcement.
Things stayed this way for a long time in the United States, with civil forfeiture for any other sort of issue mostly blocked by statute, practice or both. The only major exception to this happened during Prohibition, when cars, trucks and trains carrying illegal liquor were seized, along with the banned goods.
That exception may have in its own way led to the change in legal practices involving civil forfeiture, which began changing dramatically in the early 1980s as part of the war on drugs. The biggest single step change that happened back then was in 1984, when the U.S. Congress amended the 1970 Comprehensive Drug Abuse and Prevention Act to create the Assets Forfeiture Fund. Shortly after that, the second-biggest change happened in the policies, when federal agencies were granted the right to retain and spend the proceeds of forfeiture. That had the disastrous side effect of giving law enforcement a direct financial incentive to seize civil assets.
Once that last change was in place, civil forfeiture took off as a standard practice of operation for local, state and federal authorities. In 1986, two years after the Assets Forfeiture Fund was created, the Department of Justice took in “only” $93 million from seized civil assets. By 2008, 22 years later, the fund had accumulated $1 billion in “net assets,” after expenses for debt obligations and other expenses had been subtracted out. This was turning out to be a big criminal enterprise, this time with the normal roles of suspected criminals and the law enforcement “good guys” reversed, as law enforcement took on the role of thief and those they stole from were in many cases innocent bystanders.
Some argue that some of the accumulation of revenues from seized assets may be just “good policing.” But when one notes that many state and local authorities attempt to operate with seizures that accumulate to no more than $1,000 per case, the cost of fighting such cases is often prohibitive for almost anyone to challenge. The cost of an attorney alone would be much more than what might be retrieved in such situations, so many people give up after they learn of the few options they have.
As partial protection for these people, who could not easily afford to fight for what might rightfully be theirs, former attorney general Holder’s past orders were put in place in 2015 to get rid of a concept called “federal adoption” of civil forfeitures. Prior to Holder’s rules, it was possible for the federal government to “adopt” state and local official civil forfeiture items, provided the alleged crimes under which the items had been seized were also violations of federal statutes. The concept involved was that, even though state and local laws might have been more restrictive on civil forfeitures than for the same seizures by the feds, one way to get around the local restrictions was to allow the state and local law enforcement people to turn over their properties to the feds. The laws in that case allowed for a sort of “revenue sharing” so that the states generally received back 80% of the value of whatever had been “kicked upstairs” for sale of the forfeited property. With Holder’s Executive Orders in place, that federal adoption practice was abolished, for the most part, effectively ceding power to the states to assert their own tougher civil forfeiture rules.
Some of those states have stepped up with stronger laws involving civil forfeiture than they used to have in the past.
In California, for example, the state has long had a law in place that requires a criminal conviction before real estate, vehicles, cash or boats worth less than $25,000 can be forfeited to the government. If more
than $25,000 in cash was on the line, the government had to provide convincing evidence that a crime had been committed. Also, if an innocent person who owns property seized wanted to pull back that property, the burden in that state required the government to prove the owner knew about the illegal use of the property.
The problem with all those parts of past California law was that the “federal adoption” rules could override them under that “equitable sharing” program described earlier – which is why a 2014 investigation by The Washington Post was able to find around 10,000 civil cash forfeitures in California gained as a result of actions conducted “without search warrants or indictments through the equitable sharing program” since 9/11.
Under California SB 443, however, which was passed by the state legislature and signed into law in the fall of 2016, law enforcement agencies will be required to obtain a criminal conviction before they are entitled to any equitable sharing payments from forfeited real estate, boats, cars and trucks and cash for seizures under $40,000. This new regulation does not block the seizures where federal adoption is in place, but it does block the state and local law enforcement officials by not allowing them to bring in the proceeds from federal adoption unless they have a criminal conviction.
In the state of Mississippi, in March 2017, House Bill 812 was signed into law as a major reform. It requires the state’s Bureau of Narcotics to maintain a public website tracking forfeitures taken through civil court proceedings. It even goes so far as to require a judge to approve a seizure warrant within 72 hours of a police agency seizing property.
Prior to both those states’ actions was New Mexico putting in place what could be a model for many states to follow with respect to such reforms. In laws enacted in 2015, New Mexico made it a requirement that property cannot be forfeited without the government first having the property’s owner convicted of a crime and with there being a clear tie of the property involved to the crime. Second, in that state, before items can be forfeited, the government must prove a person had convincing evidence of the crime that would allow the forfeiture to go forward. Most powerful of all, even when a civil forfeiture does go through, 100% of the monies earned from it must go into New Mexico’s general fund, with explicit blocking of the federal adoption clause and none of the seized assets able to be returned to the state and local law enforcement agencies. This last part should at least minimize the profit incentive for those law enforcement groups. With his new Executive Order allowing federal adoption of state and local seized assets, Sessions will likely still want to have a say in the legality of the best of these laws. It is even possible that he will ask his team to pursue legal action against New Mexico, California, Mississippi and others as he attempts to wrest control of those ornery states who refuse to follow his approach to forfeiture. The one thing that is certain is Sessions is unlikely to rest until he has destroyed what little democracy remains and has all the states in full lockstep to support his own goal of stealing the assets of innocents swept up in his web of federal thievery.
If Americans continue to tolerate this type of criminality by government, they can only expect their rights to be further eroded and government to become even more predatory.