Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
Policing for Profit: How Civil Asset Forfeiture Has Perverted American Law Enforcement
Picture this: You’re driving home from the casino and you’ve absolutely cleaned up – to the tune of $50,000. You see a police car pull up behind you, but you can’t figure out why. Not only have you not broken any laws, you’re not even speeding. But the police officer doesn’t appear to be interested in charging you with a crime. Instead, he takes your gambling winnings, warns you not to say anything to anyone unless you want to be charged as a drug kingpin, then drives off into the sunset.
This actually happened to Tan Nguyen, and his story is far from unique. It’s called civil asset forfeiture and it’s a multi-billion dollar piggybank for state, local, and federal police departments to fund all sorts of pet projects.
With its origins in the British fight against piracy on the open seas, civil asset forfeiture is nothing new. During Prohibition, police officers often seized goods, cash, and equipment from bootleggers in a similar manner to today. However, contemporary civil asset forfeiture begins right where you’d think that it would: The War on Drugs.
In 1986, as First Lady Nancy Reagan encouraged America’s youth to “Just Say No,” the Justice Department started the Asset Forfeiture Fund. This sparked a boom in civil asset forfeiture that’s now become self-reinforcing, as the criminalization of American life and asset forfeiture have continued to feed each other.
In sum, asset forfeiture creates a motivation to draft more laws by the legislature, while more laws create greater opportunities for seizure by law enforcement. This perverse incentive structure is having devastating consequences: In 2014 alone, law enforcement took more stuff from American citizens than burglars did.
The current state of civil asset forfeiture in the United States is one of almost naked tyranny. Don’t believe us? Read on.
The Origins of Civil Asset Forfeiture
Civil asset forfeiture has a deep history in maritime law. In many cases, it just wasn’t practical to bring owners of vessels carrying contraband in front of an American court. So customs enforcement would simply seize the contraband. But in practice, seizure of assets was rare and generally required a felony conviction in court. Oftentimes these convictions were obtained in absentia, but the point is that there was a criminal proceeding and due process.
During the Civil War, as part of sweeping attacks on liberty that included Lincoln suspending habeas corpus and obtaining an arrest warrant for the Chief Justice of the Supreme Court, supporters of the Confederacy had their property confiscated without due process. Civil asset forfeiture was used during the Prohibition Era to seize assets from bootleggers and suspected bootleggers. Even innocent owners had no defense during Prohibition if their property was used in violation of the Volstead Act.
In 1984, civil asset forfeiture entered a new phase. The Comprehensive Crime Control Act, championed by then-President Ronald Reagan, allowed for police agencies to keep the assets they seized. This highly incentivized the seizure of assets for the purpose of funding police departments rather than pursuing criminal charges. However, the game changed completely in 1996 – the year of the landmark Supreme Court decision Bennis v. Michigan (516 U.S. 442). This ruling held that the innocent owner defense was not sufficient to recover assets seized during civil asset forfeiture.
The plaintiff, Tina Bennis, was the joint owner of a vehicle with her husband John. The latter was arrested by Detroit police when caught with a prostitute on a street in Detroit, and the car was seized as a public nuisance. The court found that despite having no knowledge of the crime, there was no violation of either her property rights or her right to due process. Michigan’s law was specifically designed to deter people from using their assets in criminal activity, which the Supreme Court found to be Constitutional in a 5-4 decision. The Supreme Court likewise found that there was no right to compensation for Bennis.
Criminal Asset Forfeiture vs. Civil Asset Forfeiture
Before going any further, it’s important to delineate the differences between criminal asset forfeiture and civil asset forfeiture. The primary difference is that criminal asset forfeiture requires a conviction while civil asset forfeiture does not. However, there are other differences worth mentioning.
Civil asset forfeiture is a lawsuit against the seized object in question rather than a person. This leads to rather strange lawsuits like “Texas vs. One Gold Crucifix.” The legal burden of proof varies from one state to another, but the most common is preponderance of evidence, not reasonable doubt. What this means is juries decide if the state’s case is more likely to be true than not – not beyond a reasonable doubt. In a civil asset forfeiture trial, courts can weigh the use of the Fifth Amendment. This is not true in criminal trials.
The burden of proof question becomes crucial when it comes to retrieving property. In criminal cases, assets are returned if the prosecution fails to prove the guilt of the accused. In a civil asset forfeiture trial, the accused effectively has to prove their innocence to get their property back. Thus, civil asset forfeiture is a highly attractive option for police departments looking to scare up extra scratch in tight budgetary times. What’s more, the accused is not entitled to legal counsel. This is why, in most cases, it’s not economically advantageous to try and get one’s property back. The lawyer fees will quickly eclipse whatever value the seized assets have.
A 2015 study from FreedomWorks graded the states on their civil asset forfeiture laws. Only New Mexico received an “A,” after the state passed sweeping reforms with regard to its civil asset forfeiture processes. Over half the states received a “D” or less.
Sound paranoid? Keep reading.
Continue reading Policing For Profit: How Civil Asset Forfeiture Has Perverted American Law Enforcement at Ammo.com.
Published in Policing
If greedy cops target a gang of organized criminals for civil asset forfeiture, there’s a risk that some of those gang members will put out a hit on them in retaliation.
Respectable law-abiding citizens would never think of such a thing, so there’s no risk.
Respectable law-abiding citizen = Sucker begging to be ripped off.
I don’t need to spell out how poisonous it is to have armed agents of the state with that sort of attitude running around.
There is something to be said for taking assets away from criminals who might use them for yet more crime.
There is nothing to be said for assigning those assets to anyone else. The idea that, hey, those people shouldn’t have X so we’ll take it for ourselves is the stuff of communists and pirates.
I thought police only handled ‘criminal’ matters not ‘civil’ matters?
But civil asset forfeiture has nothing at all to do with criminals. If anything the property is somehow the criminal, and no proof is needed nor given for the criminality. I feel like a song coming on.
Suspicion torments my heart.
Suspicion keeps us apart.
Suspicion why torture me?
It’s ridiculous casinos are a cash only businesses. Gamblers are paid off in public which makes them easy marks.
Walking around with $50k in change is pretty inadvisable. If Mr. Nguyen had been mugged by a criminal I’d be a lot less sympathetic, but as he got robbed by a cop I’m hesitant to “””victim blame.”””
You should watch the movie Brooklyn’s Finest. Good movie, and it has a cop character who does single out crooks just like you’re describing.
I agree. I’ve never done it, myself, and it’s looking less and less likely that I ever will.
Wouldn’t even ask for it, and I am sure that Brown-Eyed Beauty wouldn’t give it to me even if I did.
Anyway, she knows that I hate money–whenever she gives me any, I trade it for something else the moment I get the chance.
Well I had almost $60k “cash” from selling my old place and buying the new one, but I never held it in my hands. It went from one electronic transfer to another. And that’s the only way I’d WANT TO “handle” it, since that way I can’t even accidentally lose it, let alone have it be stolen.
In I think the very first episode of the excellent series “Las Vegas” starring James Caan, a guy comes into the casino and starts gambling with his Social Security check. He wins for quite a while, getting up to maybe $500k or something; and then he starts losing… When he’s down to about $40k or something, and seems determined to lose the rest of it while trying to “Get Even,” Danny McCoy the assistant manager or something, tells him “That’s still a lot of money. Walk away.” James Caan’s character – the casino owner/manager – is watching on security cameras, and says “We could have had the rest of that guy’s money in a New York minute. But he did a good thing.”
Man that was a great show. Especially as they explored more of the history of James Caan’s character.