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Paul Albaugh / October 20, 2015

The Need for Civil Asset Forfeiture Reform

The French philosopher Frederic Bastiat warned of “legal plunder.”

Among the many reforms needed in government, civil asset forfeiture might be near the top. While a majority of Americans are not affected by the practice, it’s a problem that if left unchecked could get more out of hand than it already is. The French philosopher Frederic Bastiat warned of “legal plunder” and of a government that takes what it wants. And it never ends well.

Jason Snead of the Heritage Foundation defines civil forfeiture as “a policy that enables law enforcement authorities to seize property or currency if they suspect it is involved in, or is the result of, a crime.”

Based on that definition, it sounds like a reasonable practice on behalf of law enforcement agencies. But that’s not always the case.

The problem lies in the fact that since forfeiture proceedings are civil, not criminal, people who are at the wrong place at the wrong time or who hold property where a crime was committed or thought to be committed are not afforded due process under the law. They are not given the right to an attorney, and their cash and/or property are taken with no way of getting it back without costly and lengthy legal action.

There are at least three states that have clearly abused civil forfeiture and it’s worth looking at several statistics to get a sense of how much reform is needed.

In Michigan, state law enforcement agencies seized and forfeited $23.9 million worth of cash and property, but the number is probably higher due to many of those reported forfeitures being drug related.

In Oklahoma, 12 counties along Interstate 40 were affected, resulting in $6 million being taken over a five-year span, with only $2 million coming from property owners who were actually charged with a crime.

Two men in Virginia, Victor Guzman and his brother-in-law Jose Sorto, were also victims of civil forfeiture when they were caught speeding on Interstate 95. They were heading to Atlanta with $28,500 in cash that their church had entrusted them with to purchase land. Other than speeding, there were no drugs found and no evidence of illegal conduct, but the officers seized the cash. The officers’ justification was that Guzman and Sorto’s statements were inconsistent, but that’s not terribly surprising given that Guzman spoke English as a second language and Sorto didn’t speak English at all.

One last example (and there are many more) comes from Georgia, where a retired man watched as his garden was raided by the Georgia State Patrol. His crime? He was growing okra. Yes indeed, the plant that grows tall stalks and has green leaves apparently looks like cannabis from high in the sky and was worthy of law enforcement raiding his property and taking a few of the leaves for analysis. Gardeners, beware of what you grow.

These cases prompt the question: What part of the Constitution does our government, including state law enforcement agencies, not understand?

The Fourth Amendment to the Constitution clearly states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fifth Amendment is equally applicable. It states, “No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for use, without just compensation.”

It is absolutely appalling that law enforcement agencies are using their power in some cases to take people’s property and money without any guarantee of returning it should that person(s) be found not to be involved with criminal activity. But as long as law enforcement agencies can continue to pad their pockets with this cash to purchase new equipment or whatever else is deemed necessary by the agency, why would they stop?

Thankfully, some state legislatures such as Michigan, Oklahoma and even California are pursuing reform. Unfortunately, there has been great opposition from law enforcement agencies, so the needed reform has not been as smooth or as fast as it should be.

We applaud law enforcement officers for being willing to serve and protect, often at the risk of their own lives. Most of the time they do outstanding work and are not given the gratitude or respect they deserve. But when law enforcement commits unconstitutional acts, when it serves and protects its interests instead of the interests of the American people, then it is time for major reform.

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