There are a few issues where Americans on both sides of our political divide are in agreement and one of them is the wrongfulness of civil asset-forfeiture laws. Under those laws (which exist at federal, state, and local levels), a person can be deprived of his property merely because a law-enforcement official suspects that it might have somehow been involved in a crime. For example, if a person is stopped while carrying a lot of cash and the police suspect that the cash might have come from illegal drug transactions, the police can seize the money. Or, if a police officer thinks that a car was used for an illegal liaison with a prostitute, he can seize the vehicle.
Cash, vehicles, jewelry, even real estate have been taken from their owners under civil asset forfeiture.
In such cases, the property itself is deemed “guilty” of the supposed infraction and once the government has gone through the necessary paperwork, it is forfeited to the government. At that point, it is up to the owner to battle through bureaucratic and legal thickets if he wants to recover the property. In that battle, the presumption of innocence does not apply — it is incumbent on the individual to prove that the police were wrong, reversing the way our criminal law system is supposed to work.
Unless the owner can win that costly, uphill battle to recover his property, the government gets to sell it. Many people can’t afford to fight and just give up, which is exactly what the government wants. The proceeds usually go into the police budget, creating perverse incentives for the police to search for lucrative forfeiture targets.
Civil asset forfeiture amounts to deprivation of property without due process of law and that is why it is widely opposed by Americans. Unfortunately, the last time civil asset forfeiture was challenged in the Supreme Court, a 5-4 majority upheld its legality on the weak ground that civil asset forfeiture had existed at the time the Constitution was ratified and therefore couldn’t be unconstitutional. (If you want to read the case, it is Bennis v. Michigan, 516 U.S. 442.)
Since Bennis, a vigorous movement has grown to reform or repeal civil asset-forfeiture laws at the federal and state levels. The state where the most progress has been made is New Mexico, where in 2015 the state legislature passed a bill that defanged the viper. The efforts in New Mexico were given a huge boost by the video of a conference where a consultant told law-enforcement officials how to maximize their take under civil asset forfeiture. When the video went viral, most citizens were aghast at the brazen legal plunder scheme being perpetrated by their officials.
Both chambers of the legislature unanimously passed a bill providing that only criminal forfeitures would be allowed in the state — no longer would a person who had not been convicted of a crime have to forfeit his property. Furthermore, to eliminate the profit motive from law enforcement, any future funds from forfeitures would go into the general fund. Gov. Suzanna Martinez promptly signed the bill into law, giving New Mexico the nation’s best grade on civil asset forfeiture, according to the analysis of the Institute for Justice (IJ), the libertarian group that has spearheaded the battle against not only civil asset forfeiture, but many other governmental assaults on freedom and property rights. You can read IJ’s report on civil asset forfeiture, “Policing for Profit.”
But passage of that bill, called the New Mexico Forfeiture Act (NMFA), did not stop civil asset-forfeiture abuse. Albuquerque, the state’s largest city, had a thriving civil asset-forfeiture operation going and it decided to ignore the new law on the specious grounds that it did not apply to the city’s actions. The city kept right on with its lucrative vehicle-forfeiture racket.
The Harjo forfeiture
On April 23, 2016, New Mexico resident Arlene Harjo’s son asked whether he could borrow her car to go to the gym. She agreed to his request and expected him to return within a few hours. But he did not return that night. The next morning, Arlene found out that he had been arrested for driving while intoxicated after a rendezvous with his girlfriend. At the point of arrest, Albuquerque police seized her car for forfeiture.
Of course, Arlene had not been convicted of drunken driving and under the NMFA her property should not have been confiscated — but Albuquerque was ignoring the law.
In an effort at preventing the forfeiture of her vehicle, she paid $50 to have a hearing with a city attorney. He offered her this settlement: the city would not keep her car if she paid $4,000 and agreed to boot it (render it inoperable) for 18 months. How generous! Arlene could not, however, afford either the monetary cost or the loss of transportation, so she declined the offer. An important fact that would later come to light is that the city attorney’s salary was paid entirely out of vehicle-forfeiture revenues.
Having declined the settlement offer, Arlene next had to meet with the city’s Chief Hearing Officer. In that meeting, she argued that her car should be returned to her because the city ordinance excepted “innocent owners” from forfeiture. But the Chief Hearing Officer ruled that she had not carried her burden of proving that she was in fact an “innocent owner” under the law. Therefore, at his direction, the city proceeded to file to have her car forfeited to it.
Luckily for Arlene, the case had come to the attention of the crack legal team at the Institute for Justice, which filed suit against Albuquerque in 2016.
During case discovery, a crucial fact emerged, namely that the driving incident and arrest had occurred outside of city limits and therefore the seizure and forfeiture of Arlene’s car was illegal. Albuquerque officials had access to the police report showing that the arrest took place outside city limits, but somehow they managed to overlook the car’s location. Discovery also showed that the employees who conduct the background checks prior to forfeiture actions also had a financial stake in the cases, since they too were paid out of forfeiture proceeds.
Once the embarrassing fact that the whole case was a “mistake” was revealed, Albuquerque dropped its forfeiture action against Arlene. But she was not about to drop her suit against the city, because she had suffered considerable damage as a result of its wrongful action.
Due process
At this point in 2016, two legal battles were being fought over civil asset forfeiture. First, was Albuquerque really excused from having to abide by the NMFA? Second, had the city violated Arlene’s constitutional rights and was it therefore liable for damages?
The first case was decided in March of this year when federal Judge James Browning ruled that the NMFA did apply to Albuquerque. The key language in his opinion reads, “A municipality wishing to enact a civil forfeiture law could avoid the New Mexico Forfeiture Act by simply not mentioning the NMFA, thus allowing noncriminal forfeiture to continue in New Mexico despite the Legislature’s expressly stated purpose that it meant to ‘ensure that only criminal forfeiture is allowed in this state.’ Thus, reading the NMFA as the City of Albuquerque argues would render the amended purpose superfluous and the Court will not read the statute that way.”
In short, Albuquerque’s desperate attempt at evading the obvious intent of the law was rebuked.
The second case was also heard by Judge Browning and he issued his decision on July 28. In it, he ruled in favor of Arlene’s claim for damages and, more important, held that the civil asset-forfeiture system the Albuquerque had run for many years violated the Fourteenth Amendment Due Process Rights of individuals whose vehicles were forfeited.
The crucial language in that decision reads, “The Court concludes that the City of Albuquerque’s forfeiture officials have an unconstitutional incentive to prosecute forfeiture cases, because forfeiture revenues are set in a special fund and the forfeiture program can spend, without meaningful oversight, all of the excess funds it raises from previous years.” That incentive violates the right to due process protected by the Fourteenth Amendment because government officials must not be biased in making their decisions.
Furthermore, Judge Browning wrote, “The Forfeiture Ordinance independently violates due process by depriving car owners of their property unless they prove their innocence.” Bravo, Judge: You have stood up for the essential tenet of our legal system, that the burden of proof is on the government, not the accused.
Judge Browning’s reasoning on the ways civil-forfeiture laws violate citizens’ rights under the Fourteenth Amendment will undoubtedly be used in future cases against civil forfeiture in other states. There is a long, hard campaign ahead against those laws. If you read “Policing for Profit,” you will see that in most states, civil asset-forfeiture laws range from poor to terrible.
Law-enforcement officials always defend the laws, saying that they’re necessary to fight the war on drugs. But even if you believe in the war on drugs (I regard it as sheer folly), it’s plainly unjust to victimize innocent people in fighting it. Law enforcement should always have to prove someone guilty in a court of law before taking his property or otherwise subjecting him to punishment.
Civil asset forfeiture victimizes innocent people and corrupts government officials. It must be eliminated.
This article was originally published in the October 2018 edition of Future of Freedom.