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Civil forfeiture in the United States

In the United States, civil forfeiture (also called civil asset forfeiture or civil judicial forfeiture)[1] is a process in which law enforcement officers take assets from people who are suspected of involvement with crime or illegal activity without necessarily charging the owners with wrongdoing. While civil procedure, as opposed to criminal procedure, generally involves a dispute between two private citizens, civil forfeiture involves a dispute between law enforcement and property such as a pile of cash or a house or a boat, such that the thing is suspected of being involved in a crime. To get back the seized property, owners must prove it was not involved in criminal activity. Sometimes it can mean a threat to seize property as well as the act of seizure itself.[2] Civil forfeiture is not considered to be an example of a criminal justice financial obligation.

Proponents see civil forfeiture as a powerful tool to thwart criminal organizations involved in the illegal drug trade, with $12 billion annual profits,[3] since it allows authorities to seize cash and other assets from suspected narcotics traffickers. They also argue that it is an efficient method since it allows law enforcement agencies to use these seized proceeds to further battle illegal activity, that is, directly converting value obtained for law enforcement purposes by harming suspected criminals economically while helping law enforcement financially.


Critics argue that innocent owners can become entangled in the process to the extent that their 4th Amendment and 5th Amendment rights are violated, in situations where they are presumed guilty instead of being presumed innocent. It has been ruled unconstitutional by a judge in South Carolina.[4][5] Further, critics argue that the incentives lead to corruption and law enforcement misbehavior. There is consensus that abuses have happened but disagreement about their extent as well as whether the overall benefits to society are worth the cost of the instances of abuse.


Civil forfeitures are subject to the "excessive fines" clause of the U.S. Constitution's 8th amendment, both at a federal level and, as determined by the 2019 Supreme Court case, Timbs v. Indiana, at the state and local level.[6] A 2020 study found that the median cash forfeiture in 21 states which track such data was $1,300.[7]

History[edit]

Legal origins[edit]

Civil forfeiture in the United States has a history dating back several hundred years, with roots in British maritime law. In the mid-1600s, when what would become the United States was a British colony, the British Navigation Acts were enacted. These laws required ships importing or exporting goods from British ports to fly the British flag; ships that failed to do this could be seized regardless of whether the ship's owner was guilty of any wrongdoing.[8] It was easier to seize a vessel than try to apprehend the owner, who may be on the other side of the ocean.[9]


During the later Colonial years, forfeiture practices by Crown officials using writs of assistance were one of the many activities that angered colonists, who saw the writs as "unreasonable searches and seizures" that deprived persons of "life, liberty, or property, without due process".[9]


After the American Revolution, the early Congress wrote forfeiture laws based on British maritime law to help federal tax collectors collect customs duties, which financed most of the expenses of the federal government in the early days of the Republic.[8] Seizures allowed government to confiscate property from citizens who failed to pay taxes or customs duties.[10] The Supreme Court upheld these forfeiture statutes in situations where it was virtually impossible to get hold of guilty persons on the high seas while possible to get hold of their property.[8] As explained by Supreme Court justice Joseph Story:[8]

Mandrel Stuart was not charged with a crime and there was no evidence of illegal activity but police seized his money because they assumed it was drug-related:

Mandrel Stuart and his girlfriend were on a date driving on Interstate 66 ... The traffic stop on that balmy afternoon in August 2012 was the beginning of a dizzying encounter that would leave Stuart shaken and wondering whether he had been singled out because he was black and had a police record. Over the next two hours, he would be detained without charges, handcuffed and taken to a nearby police station ... stripped of $17,550 in cash ... earned through ... a small barbecue restaurant ... he was going to use the money that night for supplies and equipment.

— report in The Washington Post, 2014[35]

[35]

Javier Gonzalez was carrying $10,000 cash in a briefcase and got pulled over in Texas; deputies handed Gonzalez a waiver, that if he signed over the money and did not claim it later, he would not be arrested, but if he refused to sign the waiver, Gonzalez would be arrested for money-laundering. Gonzalez signed the waiver wondering if the officers were real "officers of law" and wondering if he got robbed, but later sued the county, which lost, and returned his cash plus paid him $110,000 in damages plus attorney's fees.[18]

[18]

Matt Lee of , was driving to California with $2,500 cash when pulled over by police in Nevada, who seized almost all of the cash under suspicion that it was a "drug run"; Lee hired an attorney who took half as his fee, leaving Lee with only $1130 remaining.[35]

I just couldn't believe that police could do that to anyone ... It's like they are at war with innocent people.

— Matt Lee, interviewed in The Washington Post, 2013[35]

Clare, Michigan

Tan Nguyen. In 2008, a federal judge ordered $50,000 returned to a man after police seized the money during a traffic stop in , after reviewing a recording of the seizure in which a sheriff's deputy suggested that we "take his money and, um, count it as a drug seizure".[16] Tan Nguyen's $50,000 was confiscated by police during a traffic stop, and the county agreed to return the funds after a legal challenge.[36]

Nebraska

In May 2010 a couple was driving from New York to Florida and they were stopped by police because of a cracked windshield. During questioning, the officer decided that $32,000 cash in the van was "probably involved in criminal or drug-related activity", seized it, shared it with federal authorities under equitable sharing.[35] The victim hired a lawyer to get back the seized money who urged settling for half of the seized amount, and after the lawyer's fees, the victim got back only $7,000.[35]

[35]

A 2013 piece detailed abuses in Tenaha, Texas, where police would target out-of-state drivers using rental cars, often not issuing traffic tickets, and disproportionately pulling over African Americans and Latino-Americans.[9] Police sometimes ask stopped motorists to sign "roadside property waivers", which, unless signed, threaten criminal charges unless valuables are handed over; the waivers say, in effect, that victims will not contest the seizure in exchange for not being arrested.[9]

The New Yorker

Confiscation

Killing of Donald Scott

Legal plunder

Nebraska v. One 1970 2-Door Sedan Rambler (Gremlin)

United States v. Schooner Peggy

publication of US Dept of Justice

Asset forfeiture