Property Rights Get Their Day in Court

Civil-asset forfeiture would be called robbery by any reasonable standard. It’s time for the practice to end.

National Review
Jibran Khan

Did you know that, in most states, the police can take your money and property without even charging you with a crime? Mundane actions such as having cash on hand have been cited as grounds for seizure, as a young man moving to Los Angeles to start a business discovered when his life savings were seized. He wasn’t detained, or charged with any crime — but he was left with nothing when the Drug Enforcement Agency took his cash. In any other situation, we would label this theft; the fact that the victim, Joseph Rivers, wasn’t taken in puts the lie to the idea that his behavior was some kind of threat or criminal activity.

Stories abound of abusive seizures justified under civil forfeiture. One family had its home taken because the son was caught with $40 of drugs; cities such as Philadelphia engage in hundreds of home seizures each year. In Texas, a family that drove for too long in the left lane of the highway was told by a county district attorney, Lynda K. Russell, that their children would be put in foster care, the parents would be put in jail, and their car would be seized — unless they handed over all of their cash, in which case they would be free to go. The town where that occurred, Tenaha, prides itself on this tactic, which ensures a steady flow of cash and goods from out-of-town drivers. In effect, the practice echoes the robbery of travelers by highwaymen in older days.

It’s extremely difficult, often to the point of impossible, to claim back seized property. A new Supreme Court case, however, might change that. Clarence Thomas has long been a vocal opponent of the civil-forfeiture practice. He wrote in his dissenting opinion against the Court’s refusal to hear the case Leonard v. Texas last year that:

This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses. . . . These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.

Justice Thomas has hoped for a civil-forfeiture case to come before the Supreme Court, so that this practice, which he views as incompatible with the due-process clause, can be analyzed on constitutional grounds. When it considers Timbs v. Indiana later this year, the Court will be able to do just that.

Tyson Timbs, who had a heroin addiction, received a life-insurance payment of about $70,000 when his father passed away. In January 2013, he used $42,000 of it to buy a Land Rover car, and spent the rest on drugs. There is no question that Timbs engaged in illegal activity by both buying and selling drugs, and that the state had a case against him on those grounds (although his sales amounted to just $225). After a confidential informant set up a series of purchases, Timbs was arrested that May at a traffic stop. He pled guilty to a charge of dealing and conspiracy, receiving a sentence of six years (with five suspended) and a $1,200 fine — his charge held a maximum fine of $10,000. The state went on to seize his car because of a bizarre state policy that allows private lawyers to sue for a forfeiture in order to receive a cut. Given that the car was worth four times the maximum fine, the lower courts in Indiana ruled that this penalty was grossly disproportional under the Eighth Amendment. However, the state supreme court reversed their ruling.

Samuel Gedge, an attorney at the Institute for Justice, tells National Review that the punitive seizure is hampering Timbs’s recovery. He has had to borrow his aunt’s car to get to work; his aunt, who has kidney failure, needs to take a bus to receive dialysis. The human cost of these seizures is never limited to the individuals. They ripple out to family members, whether indirectly, as in the case of Mr. Timbs’s aunt, or directly, as in the cases of those families who lose their cars or homes because a child was suspected of wrongdoing. The pressures and costs associated with seizure may incentivize a return to crime and drugs for many of those affected, creating a vicious cycle. Indeed, sometimes this is what law-enforcement agencies actively seek — such as a case where an officer waited until trucks had made their drug sales and were returning with cash in them instead, because that made for a more useful seizure (even though it meant allowing more criminal activity to take place). The system incentivizes policing for profit, rather than for public safety.

The way that seized money is spent is just as disgraceful as the takings themselves. Departments have used forfeiture funds to buy Mercedes-Benzes, BMWs, Corvettes, Hawaiian vacations, and ski trips — just to list a few. They have also used these funds to buy military equipment, which has contributed to the dissolution of Sir Robert Peel’s concept of good policing that held the police should be well-integrated with the public rather than seeing itself as a military force. It’s no surprise that Brad Cates, who headed up asset forfeiture at the Department of Justice in the 1980s, describes it as “a free-floating slush fund.” The taking of property from citizens who are not charged with crimes to fund lavish lifestyles for government officials sounds like something out of the most dysfunctional Third World regimes.

It’s heartening to see that the Supreme Court will hear the case. The practice is an affront to both constitutional and cultural norms, and has empowered law enforcement to engage in what would be considered criminality by any other measure. The incentive to police for profit encourages miscarriages of justice. Citizens who find themselves stripped of their property may resort to crime for quick cash. Removing civil forfeiture will not only reduce corruption; it will help fight crime.

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Luckily, I have enough willpower to control the driving ambition that rages within me.

When you had the votes, we did things your way. Now, we have the votes and you will be doing things our way. This lesson in political reality from Lyndon B. Johnson

"Some things are apparent. Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible." - Justice Janice Rogers Brown

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