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What Can You Do When the Cops Take Your Money and Won't Give It Back?

Under New York City's opaque and arbitrary civil forfeiture system, seizing money from a woman not accused of a crime is a perfectly legal thing to do.

by Jake Offenhartz
Sep 29 2016, 4:00am

Critics say the NYPD's civil asset forfeiture policies incentivize officers to seize property and make getting it back extremely difficult. Photo By Raymond Boyd/Getty Images)

More than four months have passed since intruders came into Ana Ortiz's apartment and robbed her of over $2,600 in cash she needed to pay rent. Her life has been upended as a result: She faces eviction from her South Bronx home of 25 years, and she fears that her frequent trips to housing court might cost her her job as a hospital secretary, which could put her and her three children on the street. A few weeks into the school year, she still doesn't know how she's going to pay for her son's college textbooks or daughter's school uniform.

"People knock on my door, and I'm still scared," Ortiz (whose name has been altered to protect her privacy) told me over the phone. "If I leave the apartment, I don't know what to expect. I don't want them targeting both of my sons or my daughter or myself." (Ortiz's case has also been covered by the Village Voice.)

The people who took her money weren't criminals, but officers with the New York City Police Department. According to the Bronx Defenders, a legal aid group assisting Ortiz with her case, the cops entered the apartment to arrest one of Ortiz's son's friends for violating his parole and instead arrested her son after he demanded to see a warrant (he eventually pleaded guilty to disorderly conduct). Their reason for taking the cash was—well, they've never actually said why they took the cash, and the NYPD did not respond to multiple requests for comment. But under New York City's opaque and arbitrary civil forfeiture system, seizing money from a woman not accused of a crime is a perfectly legal thing to do.

Popularized in the 1980s, civil forfeiture was presented as a bold weapon in the war on drugs, a means of depriving kingpins of their profits in cases where they couldn't be charged with a crime. Police departments across the country engage in the practice. But over time, bad laws, worse incentives, and zero oversight have combined to create a legal gray area that is ripe for abuse. Though activists have been pushing back against the process in the last couple of years as it's come under increasing scrutiny, cases like Ortiz's are still far too common, and the fundamental problems with civil forfeiture remain.

The first rule of civil forfeiture is that you don't need to be convicted or even charged with a crime to have your stuff seized. Since these are civil cases, you're also not entitled to a lawyer if you can't afford one. And if the police claim your possessions are related to a crime, the burden of proof is on you to prove otherwise. In New York, even if the money or property is eventually deemed innocent, you're on your own navigating the city's property retrieval apparatus, which is governed by rules so convoluted that even experts struggle to understand it—the Legal Aid Society describes it as a "confusing patchwork of omissions and misleading and overruled provisions." According to Kenneth Crouch, a legal advocate with the Bronx Defenders, the vast majority of claimants simply give up on their possessions.

"It's one thing for people to go through a byzantine process to get their property back," Crouch told VICE. "It's another thing for people to get discouraged and not even attempt to get their property back. And the vast majority of claimants get discouraged, for whatever reason, and don't get their stuff."

Ortiz's case perfectly illustrates how weighted the system is against ordinary people who have had their property seized. According to the Bronx Defenders, the NYPD missed the deadline for filing a civil forfeiture action (a normal requirement in these cases), then—after months of ignoring her messages—falsely claimed her demands were invalid without a district attorney's release. With help from the Bronx Defenders, Ortiz was able to get the NYPD to agree to return her cash last month. Yet she still hasn't received the money and is understandably skeptical she'll ever see it.

The NYPD doesn't account for how much money or property is seized each year, but a city council budget line item for "unclaimed cash and property sale" totaled $7 million in 2015. That money is supposed to go to the city's general fund, though, as Gothamist reported in 2014, it often ends up in the NYPD pension fund.

"The current 'system' is 100 percent incentive with zero risk to law enforcement," Bill Bryan, an attorney with the Brooklyn Defender Service, wrote to me in an email. "It definitely encourages policing for profit."

New York City councilman Ritchie Torres is fighting to bring a shred of transparency to the city's forfeiture practices. Last year, the Bronx Democrat introduced a bill that would require yearly disclosures from the police department on the value and frequency of their seizures. At a city council meeting last Thursday, the NYPD assistant deputy commissioner, Robert Messner, spoke out against the bill, claiming that such data was beyond the scope of their record-keeping technology. According to him, counting "over half a million invoices each year" would likely "lead to system crashes."

In a phone call following the hearing, Torres called the NYPD's testimony "so absurd that it's not even worth taking seriously." He said there is no conceivable justification for withholding the data, but noted that logic "never seems to be a stumbling block for obstruction by the NYPD." Despite opposition from the NYPD, Councilman Torres is confident that some form of his bill, which has the support of 37 of the Council's 51 members, will eventually pass, citing nationwide "momentum for criminal justice reform in general and civil forfeiture reform in particular."

In 2016 alone, around 50 bills limiting civil forfeiture were proposed in at least 22 states, according to the Center for Public Integrity, though reform efforts have encountered difficulties. An Oklahoma bill was stalled by a legislator who reportedly was looking to curry favor with law enforcement groups; in New Mexico, a lawsuit claims that the authorities are ignoring the state's recently passed anti-forfeiture law. Earlier this year, the Justice Department quietly revived the "Equitable Sharing Program," which gives police departments the option to bypass local and state laws by pursuing forfeiture cases at the federal level. Under the equitable sharing loophole, police may keep up to 80 percent of any assets they seize.

In the future, the Justice Department may shutter the program in the face of pressure. And some reform measures—like one bill set to pass in California—would effectively close that federal loophole. Right now, though, as Torres points out, "the bar is very low." In order to evaluate the purpose and efficacy of asset forfeiture, it's first necessary to know how much stuff the police are seizing. This seems uncontroversial, yet law enforcement officials across the country have fiercely opposed even the most basic transparency measures.

For Ana Ortiz, whose sense of security and faith in the justice system may never return, the bar is even lower. Right now, she just wants her rent money back.

Update: An earlier version of this story misspelled Kenneth Crouch's name.

Follow Jake Offenhartz on Twitter.