Editorial

Civil Asset Forfeiture

by Fred E. Foldvary, Senior Editor

When criminals are caught, they are considered innocent until proven guilty, and they are entitled to Constitutional rights of due process. But some acts and possessions are considered to be civil cases by the government, without the legal protections that murderers, thieves, and rapists have.

Civil asset forfeiture means the confiscation of property by the government when it considers it a civil rather than a criminal case. Seizure occurs when the government takes property. Forfeiture means the legal title is transferred to the government. The perpetrator is the property rather than the person. In normal civil cases, one person sues another person for something the other did, such as not fulfil a contract. But when the government uses civil forfeiture, there is no contract violation. The government also does not need to prove guilt. There is only some property which is considered to be an offense or associated with an offense, and the government just seizes it. Sometimes the police just keep it; usually, they sell it and keep the money.

Civil forfeiture is usually used for drug-law enforcement, but increasingly it is used for other laws, such as prostitution, shoplifting, or even legal activities. The government only has to suspect that the property is being used in connection with some activity that is either illegal or claimed to be illegal. The government sues the property, not the owner, and it is then up to the former owner to prove that the property was not used illegally. The former owner has to pay a nonrefundable bond of 10 percent of the value of the property and pay attorney fees that can amount to up to $100,000. And if the government thinks the money you use to pay your lawyer is also tainted, it can seize that too, so it becomes impossible to hire a lawyer.

The property seized can be cash, cars, real estate, or a business. Often, the owner was not aware that a tenant or one's child or even a stranger was using drugs in one's property. Sometimes, just having the property, such as a large amount of cash, is sufficient to have it seized. Cash is especially vulnerable, since most paper money has traces of cocaine or other drugs.

The ability to confiscate property without having to prove guilt creates a perverse incentive for the police to seize property, since they get to keep it. If they break into a house and the owner, thinking the intruders are thieves, takes hold of a gun to defend himself, the police can then shoot the resident. In Ventura County, California, a homeowner was killed this way, and no drugs were found in his property. The police can get away with this because 80 percent of the seizure victims are never charged with a crime, and the seizure victims do not have the constitutional protection that criminal defendants have.

Here are some examples of how civil asset forfeiture works. The police stopped a woman at Houston's Hobby Airport because a police dog had scratched at her luggage. They found no drugs, but did find $39,000 in cash. The police took and kept the money, even though she could prove she had the cash legitimately. In some black slum neighborhoods, the police frequently stop people and confiscate their cash. In Detroit, a grocery store was raided and all the cash was confiscated, even though the police found no drugs, because the police dogs reacted to some of the cash. In New Jersey, a man was accused of practicing psychiatry without a license because he was counselling people in his mother's home; even though counselling does not require a license, the police confiscated the house and furniture.

Federal and State agencies seizing assets include the FBI, IRS, FDA, highway patrols, and police. Civil forfeiture is being expanded by all levels of government into ever new activities. It can be a powerful weapon by government to stifle dissent. People become afraid to protest or change the laws, because the government will come after everything they own. Ultimately, the police and other government agencies could become self-supporting from confiscation and will not need tax revenues. The press will be afraid to criticize or even publicize this, because they too would become targets. We would then not be able to tell the difference between the police and organized crime.

We need a Constitutional provision prohibiting civil asset forfeiture by all levels of government. Government should only be able to confiscate property if someone is convicted of a crime. Any action by government against an individual and his property should be a criminal, not civil, case. We need these reforms soon, before America becomes a police and terrorist state.