What Should You Do if the Cops Try to Seize Your Property Unfairly?

We talked to Ezekiel Edwards, the director of the ACLU's Criminal Law Reform Project, about the problems with the controversial practice of civil asset forfeiture.

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Nov 12 2015, 6:40pm

On Tuesday, a report from the libertarian nonprofit Institute for Justice documented the explosive growth of the law enforcement tactic of seizing cash and property from suspected criminals. Known as "civil asset forfeiture," this practice has become increasingly controversial because police are empowered to take someone's stuff on the mere suspicion that it was acquired illegally—no arrest or charges are necessary. There were $29 billion worth of such seizures in the last 14 years, including $4.5 billion in 2014 alone. Even if you're found innocent of any crime, getting your seized property back can be a long, arduous process, one that costs a lot of time and money spent tied up in court.

To learn more about what regular citizens can do if they ever get into a legal tug-of-war with the cops over their money and property, I got in touch with Ezekiel Edwards, the director of the ACLU's Criminal Law Reform Project, which "seeks to end harsh policies and racial inequities in the criminal justice system."

VICE: Why has civil asset forfeiture grown so much in recent years?
Ezekiel Edwards:
The failed war on drugs fueled civil asset forfeiture abuse. In 1984, [amendments to] the Comprehensive Drug Abuse Prevention and Control Act allowed law enforcement agencies to obtain financial benefits from the assets that they seized, creating a direct—and perverse—financial stake in [taking] people's property.

As a result, between 1986 and 2014, deposits into the Department of Justice's Assets Forfeiture Fund increased 4,667 percent to $4.5 billion. Furthermore, civil asset forfeiture laws heavily favor law enforcement and place numerous legal and financial burdens on people seeking to reclaim their property. Basically, when one combines profitable ends with easy means, abuses abound, and you end up with legalized robbery by the government.

Say I'm pulled over with, to use a real example VICE wrote about a while ago, an exorbitant amount of cash I just won at a casino. The officer making the stop suspects I've obtained it illegally. Is there any scenario where I drive away with my money?
It depends, but I wouldn't like your chances. Legally, the officer only needs probable cause to suspect that your property is related to criminal activity, even if the police officer lacks probable cause to arrest you for a crime. In practice, even if the officer is merely suspicious about your property, the prospect of reaping financial rewards can often (if illegally) result in a seizure. And in most states, officers know that your money can pretty easily become his department's money. That temptation has proven irresistible time and again.

What can we do right now to start reversing the trend of civil forfeiture?
Well, we can do what New Mexico did earlier this year: abolish civil forfeiture outright. Now in New Mexico law enforcement can only forfeit property after a criminal conviction, and all post-conviction forfeiture money is deposited in the general fund, not into police or prosecution coffers. Where state governments aren't correcting abuse, we can file lawsuits like the one we filed this year in Arizona challenging the constitutionality of civil asset forfeiture laws that allow police and prosecutors to steal from its citizens. We can also continue to pressure Congress and the White House to reduce the federal financial incentives that help make civil asset forfeiture so enticing to law enforcement.

Even if you're innocent and face no charges, it can still be a nightmare to get your seized goods back from police. How are these cases not slam dunks for lawyers?
First, it's important to remember that many people who have their property taken cannot afford to hire lawyers to fight for them—and there is no constitutional right to counsel in forfeiture proceedings. Indeed, the people the ACLU has represented in individual forfeiture actions have had little money, and all have been people of color. In Georgia, half the properties taken in 2011 were worth less than $650.

So the reality is that in many instances, there are no lawyers fighting for people to get their money back from the government. But even if you can afford a lawyer—and such an investment (which often includes filing fees for initiating a claim) isn't worth more than the property you are trying to reclaim—in a majority of states the government need only meet its burden by a preponderance of the evidence, which basically means by a tad more than a coin flip. And if you are an innocent owner of property the government suspected was used in a crime, in 35 states and under federal law, you bear the burden of proving that you had nothing to do with the alleged crime.

Any legal advice for someone who finds themselves mired in a long court case to get their seized assets back from law enforcement?
If you can afford an attorney, hire one—ideally one who understands civil asset forfeiture procedures. If not, you can still challenge the taking of your property. You are entitled to notice of forfeiture. Pay close attention to the deadlines for filing claims to your property (and/or opposing forfeiture) after you have been given notice.

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