They can take your stuff, legally?
Civil Forfeiture, sometimes referred to as civil asset forfeiture, is a controversial legal process that allows law enforcement officers to legally take a person’s assets, whether it be cash or property, that law enforcement deems of having been acquired through illicit or criminal actions.
This means that law enforcement officials are legally able to seize a person’s assets, without arresting the person or even charging the person with a crime. Officers need only have a suspicion that someone’s assets derive from illegal means to be able to take someone’s cash, car, and in some cases even their homes and businesses.
Nevada is one such state where all the proceeds from assets seized goes back to the police departments (graph courtesy of the institute of justice)
While this process has done a lot to help both take money away from cartels and drug traffickers, while also giving money back to the victims of these crimes and the law enforcement agencies that help protect us, many feel this system is now being used to violate people’s constitutional rights.
Not only are law enforcement officials able to seize assets without arresting anyone, in many states, Nevada included, the money made from the assets seized goes back to the law enforcement agencies in what is commonly referred to as civil forfeiture funds. This creates a worrying incentive for those agencies to seize more assets in order to bolster their own budgets and not actually try and catch drugs as they are being trafficked.
This trend was demonstrated in a Washington Post investigation about civil forfeiture, where the Post found, “298 departments and 210 task forces have seized the equivalent of 20 percent or more of their annual budgets since 2008.”
In this report the Post even found one police deputy who stated, “All of our home towns are sitting on a tax-liberating gold mine.”
This worrying idea can be seen in the explosion of money seized since 2001. With the investigation by the Washington Post revealing that more than 2.5 Billion dollars having been acquired in cash seizures alone. This number doesn’t even include the value of houses, properties, cars, and other values that have also been seized through the civil forfeiture process.
In a recent Review Journal article, Nevada was given a transparency rating of a D in regards to how it reported its civil forfeiture earnings. Throwing doubt on just how much of the 4.4 million dollars seized during the fiscal year of July 1st 2015 and ending on June 30th 2016 was actually taken from the hands of drug smuggling groups and other illicit activities.
While Law enforcement officials state that those who are innocent are able to simply go to court and retrieve their assets, the entire process can actually be very difficult, with nearly all civil forfeiture cases that are brought to court averaging more than a year in length.
According to Michael J Shambrock, a criminal justice attorney from Modesto California who has represented clients in civil forfeiture cases, “If you ask them (law enforcement officials) they say If you just go through court and prove innocence you will get your money, it may be true but how much money will it cost to get it, you don’t get your lawyers’ fees back, or your time spent in court, you can’t get that back either can you? The biggest thing is people don’t think about the emotional hardship that its puts on the families.”
Mr. Shambrock was keen to stress that in many of the civil forfeiture cases he has had, the most difficult part for the defendant was the emotional hardships they had to endure for months, or even years on end, just to get back some money that they rightfully owned.
It is this difficult process of navigating the legal system, combined with the fees for lawyers, that often dissuades people from ever attempting to get back their seized assets. According to the investigative report done by the Washington Post, “41 percent of cases — 4,455 — where there was a legal challenge, the government agreed to return money.”
Recently, Supreme Court justice Clarence Thomas issued an opinion that was very critical of civil forfeiture, stating, among other things, that, “These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.”
He went on to cite the same Washington Post article from above to further his claim that civil forfeiture disproportionately affects minorities and poor people who do not have the financial means to fight for what’s been taken from them.
Justice Thomas went on to state, “these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.”
With the recent controversies surrounding the topic of civil forfeiture, there has been a renewed bipartisan effort to rein in this program and make it a requirement for law enforcement to get a conviction before they are able to seize someone’s assets.