The Volokh Conspiracy

Asset forfeiture laws in many states allow the police to seize property that has supposedly been used to commit a crime, and then keep the proceeds for themselves. Often, these laws victimize people who have not been convicted of any crime, and indeed did not even know that their property might have been misused. They also often give the owner little or no opportunity to challenge the seizure, thereby flagrantly violating the Due Process Clause of the Fourteenth Amendment. Needless to say, such perverse incentives lead to many abuses, as documented in a 2010 report by the Institute for Justice.

Two excellent recent articles by George Will and Radley Balko describe some particularly egregious examples.

Here is Will:

Russ Caswell, 68, is bewildered: “What country are we in?” He and his wife, Pat, are ensnared in a Kafkaesque nightmare unfolding in Orwellian language….

In the lawsuit titled United States of America v. 434 Main Street, Tewksbury, Massachusetts, the government is suing an inanimate object, the motel Caswell’s father built in 1955. The U.S. Department of Justice intends to seize it, sell it for perhaps $1.5 million and give up to 80 percent of that to the Tewksbury Police Department, whose budget is just $5.5 million. The Caswells have not been charged with, let alone convicted of, a crime. They are being persecuted by two governments eager to profit from what is antiseptically called the “equitable sharing” of the fruits of civil forfeiture, a process of government enrichment that often is indistinguishable from robbery….

Since 1994, about 30 motel customers have been arrested on drug-dealing charges. Even if those police figures are accurate — the police have a substantial monetary incentive to exaggerate — these 30 episodes involved less than 5/100ths of 1 percent of the 125,000 rooms Caswell has rented over those more than 6,700 days. Yet this is the government’s excuse for impoverishing the Caswells by seizing this property, which is their only significant source of income and all of their retirement security.

The government says the rooms were used to “facilitate” a crime. It does not say the Caswells knew or even that they were supposed to know what was going on in all their rooms all the time. Civil forfeiture law treats citizens worse than criminals, requiring them to prove their innocence — to prove they did everything possible to prevent those rare crimes from occurring in a few of those rooms. What counts as possible remains vague. The Caswells voluntarily installed security cameras, they photocopy customers’ identifications and record their license plates, and they turn the information over to the police, who have never asked the Caswells to do more.

Balko describes an equally ridiculous case:

When the Brown County, Wis., Drug Task Force arrested her son Joel last February, Beverly Greer started piecing together his bail….

“The police specifically told us to bring cash,” Greer says. “Not a cashier’s check or a credit card. They said cash.”

So Greer and her family visited a series of ATMs, and on March 1, she brought the money to the jail, thinking she’d be taking Joel Greer home. But she left without her money, or her son.

Instead jail officials called in the same Drug Task Force that arrested Greer. A drug-sniffing dog inspected the Greers’ cash, and about a half-hour later, Beverly Greer said, a police officer told her the dog had alerted to the presence of narcotics on the bills — and that the police department would be confiscating the bail money.

“I told them the money had just come from the bank,” Beverly Greer says. “We had just taken it out. If the money had drugs on it, then they should go seize all the money at the bank, too. I just don’t understand how they could do that….”

It took four months for Beverly Greer to get her family’s money back, and then only after attorney Andy Williams agreed to take their case. “The family produced the ATM receipts proving that had recently withdrawn the money,” Williams says. “Beverly Greer had documentation for her disability check and her tax return. Even then, the police tried to keep their money….”

Civil asset forfeiture is based on the premise that a piece of property — a car, a pile of cash, a house — can be guilty of a crime. Laws vary from state to state, but generally, law enforcement officials can seize property if they can show any connection between the property and illegal activity. It is then up to the owner of the property to prove in court that he owns it or earned it legitimately. It doesn’t require a property owner to actually be convicted of a crime. In fact, most people who lose property to civil asset forfeiture are never charged. …

Although Mrs. Greer was able to recover her money, authorities in Wisconsin and elsewhere continue to seize cash based on “alerts” by drug-sniffing dogs, that can be extremely misleading:

But even in the odd world of asset forfeiture, the seizure of bail money because of a drug-dog alert raises other concerns. In addition to increasing skepticism over the use of drug-sniffing dogs, studies have consistently shown that most U.S. currency contains traces of cocaine. In a 1994 ruling, for example, the U.S. 9th Circuit Court of Appeals cited studies showing that 75 percent of U.S. currency in Los Angeles included traces of narcotics. In 2009, researchers at the University of Massachusetts analyzed 234 bills collected from 18 cities, and found that 90 percent contained traces of cocaine….

Stephen Downing, a retired narcotics cop who served as assistant police chief in Los Angeles, says it isn’t surprising that a drug dog would alert to a pile of cash, since it usually has traces of drugs.

“I’d call these cases direct theft. They’re hijackings,” says Downing, who is now a member of Law Enforcement Against Prohibition, an organization of former police and prosecutors who advocate ending the drug war.

Downing says he recently consulted a medical marijuana activist in California who was told to bring his bail money in cash, despite the fact that state law allows payment with a cashier’s check, a registered check or a credit card. “It makes me wonder if this seizing of bail is a new idea getting shopped around in law enforcement circles.”

While the details of these abuses vary, the underlying problem is the same: an asset forfeiture system that allows law enforcement agencies to seize the property of the innocent and then keep the loot for themselves. This predictably leads to a situation where many take the property first and only ask questions later – if at all. As Balko points out, low-income property owners are particularly likely to be victimized, because they often lack the funds to hire a lawyer to contest the seizure and state law often does not pay for a public defender in these cases.

CONFLICT OF INTEREST WATCH: I have done pro bono work on other cases for the Institute for Justice, which is representing the property owner in the Tewksbury case.

UPDATE: I wrote this post before noticing Jonathan Adler’s earlier post on the same subject. I am leaving this post up because it goes into much more detail. Also, I disagree with Jonathan’s statement that this sort of abuse is “constitutional.” The Supreme Court ruled that it was in Bennis v. Michigan. But I think the dissenters in that case (a cross-ideological coalition of Justices Kennedy and Stevens) got it right.

Moreover, Bennis held merely that the seizure of innocent owners’ property does not automatically violate the Due Process Clause. It did not rule on the Due Process Clause issues that arise when the authorities seize the property with little or no evidence that it actually was used in a crime, or when they fail to give the owner a meaningful and prompt opportunity to challenge the seizure in court. In a 2009 case, the Supreme Court planned to address the latter issue, but ended up dismissing the case as moot.

UPDATE #2: In an update to his post, Jonathan clarifies that he too is sympathetic to many of the arguments made by the Bennis dissenters. For my part, I agree with him that not every morally objectionable forfeiture practice is necessarily unconstitutional.

Radley Balko has an interesting article in Reason detailing the many abuses of the asset forfeiture system, which often allows police to seize property without compensation – even in cases where the owners have not been convicted of any crime:

Over the past three decades, it has become routine in the United States for state, local, and federal governments to seize the property of people who were never even charged with, much less convicted of, a crime. Nearly every year, according to Justice Department statistics, the federal government sets new records for asset forfeiture. And under many state laws, the situation is even worse: State officials can seize property without a warrant and need only show “probable cause” that the booty was connected to a drug crime in order to keep it, as opposed to the criminal standard of proof “beyond a reasonable doubt.” Instead of being innocent until proven guilty, owners of seized property all too often have a heavier burden of proof than the government officials who stole their stuff.

Municipalities have come to rely on confiscated property for revenue. Police and prosecutors use forfeiture proceeds to fund not only general operations but junkets, parties, and swank office equipment. A cottage industry has sprung up to offer law enforcement agencies instruction on how to take and keep property more efficiently.

As I have argued elsewhere, many such seizures are a fairly blatant violation of the Due Process Clause of the Fourteenth Amendment, which bars state seizures of “property” without “due process of law.” In many cases, the authorities hold on to the seized property for months at a time without giving innocent owners any opportunity to contest the seizure whatsoever. If that isn’t deprivation of property without “due process,” it’s hard to see what is. The Supreme Court recently passed up an opportunity to curb asset forfeiture abuses in Alvarez v. Smith, which I wrote about in this Findlaw column written before the Court threw out the case on procedural grounds. Hopefully, the issue will make its way back to the Supremes, and they will see fit to give innocent property owners at least some protection for their constitutional rights.

I am not optimistic that the political process will protect these rights on its own. As Radley explains, police departments and prosecutors in many areas have a vested interest in perpetuating these practices. In addition, most of the people whose property is seized in this way are relatively poor and lacking in political influence. There have been a few modest reforms over the years. But for reasons Radley outlines, they have only addressed a small part of the problem.

The Supreme Court has dismissed as moot, Alvarez v. Smith, a potentially important property rights case [HT: Josh Blackman]. As I explained in this Findlaw column, Alvarez involved an important issue in constitutional property law. The plaintiffs were property owners whose cars or other possessions had been seized by Chicago police and held for many months or years at a time, without the owners having any opportunity to challenging the seizure in any kind of judicial hearing, and in some cases without any criminal charges being filed against the owners by the government. The car owners argued that these seizures were a violation of the Fourteenth Amendment’s guarantee that states cannot seize private property without “due process of law.”

The Court decided that the case was moot because the state had settled the case and returned all three cars to their owners prior to oral argument, and also reached settlement agreements addressing the other seized property. This is an understandable ruling. Far less defensible is the Court’s decision to vacate the Seventh Circuit Court of Appeals opinion that ruled in favor of the property owners. After all, the case clearly was not moot at the time the Seventh Circuit issued its decision in 2008. As Justice Breyer’s opinion for the Court points out, the Supremes don’t normally vacate a lower court opinion when a case is dismissed as moot because it has been settled. In this case, however, the Court relied on the rule that lower court opinions usually are vacated if the settlement occurred as a result of “happenstance” for reasons unrelated to the existence of a federal case. This rule strikes me as a dubious rationale for vacating opinions that were issued before any settlement occurred. Whatever the parties’ motives for settling later, the Seventh Circuit clearly had jurisdiction over the case at the time it was decided, and therefore its opinion should stand. Moreover, it is difficult to believe that the parties completely ignored the existence of a federal case in reaching their settlement agreements, since those settlements occurred after the Seventh Circuit had ruled in favor of the property owners.

Be that as it may, the Supreme Court’s decision not only avoids resolving the underlying constitutional issue, it also allows Illinois’ egregious Drug Asset Forfeiture Procedure Act (DAFPA) to stand, since the Court vacated the lower court decision striking it down. As I explained here, DAFPA allows the police to seize property that may have been involved in a drug-related crime and hold onto it for up to 187 days without allowing the owners to file for hearing challenging the seizure. Even after they are allowed to file, more months may pass before a hearing is actually held (over a year’s delay in all for some of the Alvarez plaintiffs). This is true even if the owners in question are never charged with any crime (as the three car owners involved in Alvarez were not), and even if the police don’t provide any proof that valuable evidence would be lost if the property is returned to the owners.

Of course, things could have been worse. When the Court initially agreed to hear this case, I thought it possible that it had decided to do so in order to reverse the Seventh Circuit on the merits. The fact that there was a serious likelihood that the Court might uphold this fairly blatant violation of Due Process Clause property rights is yet another indication of the second class status of constitutional property rights in the Court’s decision-making.

I suspect that this issue will eventually come before the Court again. As a result of the War on Drugs, these kinds of property seizures are common in many parts of the country. In some jurisdictions, police departments have incentives to seize property first and ask questions later, because they get to auction off property taken in drug investigations that lead to convictions, and keep the profits. Often, they can do this even if the property in question belonged to an owner who wasn’t convicted of anything himself.

The Wall Street Journal has an editorial urging the Supreme Court to rule in favor of the property owners in Alvarez v. Smith, an important property rights case that I have been trying to draw attention to for a long time (see my recent Findlaw column on it and previous posts on the subject here and here):

With states and cities struggling with deficits, one fertile source of revenue has been money or property seized by police in possible connection with crimes. Not to be left behind, Illinois has pursued this tactic aggressively, using a law which encourages both police departments and prosecutors to take property for forfeiture, long before the accused ever get their day in court.

This practice was challenged at the Supreme Court recently in Alvarez v. Smith, where six people allege that police use of the Illinois Drug Asset Forfeiture Procedure Act violated their right to due process under the Fourteenth Amendment. Though forfeiture laws are designed to strip criminals of ill-gotten gains, three of the six were never charged with a crime. All six had their property or money taken without a warrant and had to wait for months or years without a hearing on the legitimacy of the forfeiture…

Under Illinois law, the state has 187 days after property is seized to file forfeiture proceedings. Meanwhile, of forfeited funds seized, 25% lands in the lap of the prosecutor’s office. Another 65% goes to the department that seized the property, giving police added incentive to take the property to pad their budgets. Justice Sonia Sotomayor noted this police incentive with concern….

We’re all for relieving criminals of illegal profits, but civil forfeiture laws must be used with caution and oversight lest they infringe on fundamental rights. Alvarez v. Smith provides an opportunity to restore the balance of justice to citizens.

The points emphasized in the WSJ editorial are similar to those I and others have made previously. However, the WSJ piece is still noteworthy because it shows that at least some of the national media have finally begun to give the case the attention it warrants. It’s also telling that even the generally pro-law enforcement WSJ editorial page isn’t willing to endorse the government’s position in this case.

Findlaw has just posted a column I wrote on Alvarez v. Smith, an important Fourteenth Amendment Due Process Clause property rights case that was heard by the Supreme Court today:

Today, the Supreme Court hears Alvarez v. Smith, an important case that will affect the constitutional property rights of many people around the country but has failed to attract the attention it deserves.

In Alvarez, the federal Seventh Circuit Court of Appeals ruled that it was unconstitutional for Chicago police to seize cars and other property and hold it for many months at a time a without giving the owners any chance challenge the seizure. The Illinois Drug Asset Forfeiture Procedure Act (DAFPA) allows the police to seize property that may have been involved in a drug-related crime and hold onto it for up to 187 days without any kind of legal hearing. This rule applies even to property owned by completely innocent persons who simply had their possessions caught up in a drug investigation through no fault of their own… The three car owners involved in Alvarez were never even charged with a crime, much less convicted….

Laws like DAFPA pose a serious danger to the property rights of innocent people caught up in the War on Drugs. In many jurisdictions, police departments are allowed to auction off property seized in drug investigations and keep the profits, giving them a clear incentive to seize cars first and ask questions later. Moreover, many of the people whose cars are seized are poor or minorities. They often lack the political power necessary to persuade police to release their property without judicial intervention.

The Court of Appeals ruled that DAFPA violate the property owners’ rights under the Due Process Clause of the Fourteenth Amendment. It should have been an easy case. After all, the Clause requires that states must not “deprive any person of life, liberty, or property, without due process of law.” One can certainly argue about how much process is “due” in any given situation. But surely it is a violation of the Clause for the state to deprive an innocent citizen of valuable property for many months without any judicial process whatsoever….

I previously wrote about Alvarez here and here. In this post, I wrote about then-Judge Sonia Sotomayor’s excellent opinion in the very similar case of Krimstock v. Kelly.

My column was written before the oral argument transcript became available. Somewhat surprisingly, many of the justices seem to think that the case should be dismissed on technical mootness grounds. If this were really a problem, one wonders why the Court agreed to hear the case in the first place, focusing on the property rights issue in its official question presented. Still, a dismissal on procedural grounds would be far less dangerous than a decision overruling the Seventh Circuit, which I feared might happen. The oral argument transcript also suggests that many of the justices – both liberal and conservative – are skeptical of the government’s position on the merits. They were clearly not pleased with the government lawyer’s admission that his position implies that the police could hold valuable property for a year or longer without any kind of hearing. At the same time, some of the justices seem to believe that the Seventh Circuit ruling would hamper the police unduly. In both cases, obviously, it would be dangerous to predict the justices’ votes based on oral argument questions, since some justices might pose questions that build on premises they don’t necessarily agree with.