Law enforcement has the right to seize your property without being charged with a crime. You then have to put in the time and expense, often including an attorney, to get your property back—and you have a less than 50-50 chance of succeeding.
How can this even happen in America?
When individuals commit a crime, or are accused of doing so, government can seize any property—e.g., cars, money, homes, goods, etc.—that was stolen or used in the commission of the crime. That’s criminal asset forfeiture.
Civil asset forfeiture differs from criminal forfeiture because the property, not an individual, is the target of an investigation. Law enforcement officials, including local police, may seize your stuff based on nothing more than a suspicion, such as a person possessing large amounts of cash.
Getting the property back can be long, costly, and maybe impossible, even if no criminal charges are ever filed. Depending on the amount seized and the person’s situation, the time and cost involved may not justify the effort.
According to a 2014 Washington Post investigation, since the 9/11 attacks nearly 70,000 cash seizures totaling $2.5 billion have occurred without warrants or indictments. One sixth of them were challenged, and only 41 percent of those had their money returned.
The Institute for Justice claims the Justice Department’s Assets Forfeiture Fund reported nearly $29 billion worth of seized assets between 2001 and 2014—$4.5 billion in 2014 alone. And those figures don’t count all assets taken and kept by the states.
Even more troubling, between 1997 and 2013, 13 percent of those forfeitures were for criminal activities, while 87 percent were civil.
Seized assets have become a major part of federal and several states’ law enforcement budgets, funding new buildings, salaries, bonuses, equipment, events, department expansions—and that’s just the legal expenditures.
In other words, law enforcement has a financial incentive to expand these seizures—which is exactly what we’ve seen.
But it is increasingly clear that civil asset forfeitures can run afoul of constitutional rights. For example, the Fifth Amendment’s Due Process Clause reads, “No person shall … be deprived of life, liberty, or property, without due process of law…”
When property is taken and no charges are filed, there is no due process.
The Fifth Amendment also includes a Takings Clause: “…nor shall private property be taken for public use, without just compensation.”
If law enforcement takes your property and makes it difficult or impossible to reclaim it, you have been denied just compensation.
The Fourth Amendment asserts, “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…”
In a common civil forfeiture scenario, a police officer pulls over a driver for a minor or trumped up infraction—e.g., window tinting is too dark, changing lanes without giving a signal—and then claims the driver is acting suspicious. The officer asks for permission to search the vehicle or asks whether the driver is carrying large amounts of cash, which might indicate drug trafficking.
The officer may seize the money based on the “suspicion” that it’s drug related. From that point on the property owner must prove that the property is “innocent” and not involved in a crime.
Finally, the Eighth Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
If the government seizes property based solely on a suspicion, how is that not an “excessive fine”?
In an effort to stem forfeiture abuse, Congress passed the Civil Asset Forfeiture Reform Act (CAFRA) in 2000, but the practice has continued to grow exponentially.
In 2015, Attorney General Eric Holder barred state and local officials from using a provision to seize property without warrants or criminal charges unless federal authorities were involved.
But Senator Rand Paul has an even better solution. His FAIR (Fifth Amendment Integrity Restoration) Act is an effort to restore the Due Process Clause. Law enforcement officials would be required to prove their case before keeping anyone’s seized property. In addition, the bill requires law enforcement to abide by their state laws that try to limit profiteering from seized property.
Civil asset forfeiture has morphed in many cases from a crime-fighting tool to an unconstitutional abuse of power. It needs to be reformed—now.