“No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.” —5th Amendment—

One step forward, two steps back is one way to describe the asset or civil forfeiture in the United States. We have written about this topic on more than one occasion, as it has been shown to disproportionately affect minorities in order to fill both state and federal law enforcement coffers. Over the last couple years, the subject of asset forfeiture has gained national attention, becoming feature stories by prime-time news outlets.

The practice, essentially allows state and federal government to seize an individual’s property without having to actually convict someone of a crime. In theory, one’s property would be returned if a guilty verdict is not achieved. But in many cases, the crime that a person is suspected of won’t even go before a court. Case in point: I am pulled over carrying a few thousand dollars cash that I just received for selling a vehicle. An officer asks where I got the money, and I explain. The officer says that if I want my money back, I must go before a judge and prove it.

As you can imagine, pleading my hypothetical case would involve hiring an attorney. Which can be quite expensive. Possibly more than the amount of money seized. Which is why a significant number of people whose assets or property are seized will not even fight their cases, literally forfeiting their possessions to the government. This kind of scenario plays out every day in the U.S.

Changing the Laws

A number of state lawmakers have come to see that the process of civil forfeiture unjustly affects certain individuals, and violates the Fifth Amendment of the Constitution. In California, for instance, Senate Bill 443 was passed and went into effect in January. Changing state law such that assets valued at less than $40,000 could only be seized after a criminal conviction. Other states have passed similar measures.

SB 443 basically made it so that asset forfeiture would be more likely to affect people who were involved in serious crimes, like drug trafficking and such. Not innocent bystanders who hardly stand a chance of ever seeing their money again. One of the other caveats of SB 443 was state law enforcement agencies could no longer team up with federal agencies in order to skirt state laws civil forfeiture protections. What is known as “adoptive forfeiture.”

Local police departments could skirt state forfeiture laws by partnering with federal agencies, even if a there is never a charge or conviction. State governments and the Federal agencies would then both get a piece of the stolen pie. Former Attorney General Eric Holder ended the adoptive forfeiture program in 2015, The Washington Post reports. Which was hailed as a victory by rights activists.

“With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” said Attorney General Holder. “This is the first step in a comprehensive review that we have launched of the federal asset forfeiture program. Asset forfeiture remains a critical law enforcement tool when used appropriately – providing unique means to go after criminal and even terrorist organizations. This new policy will ensure that these authorities can continue to be used to take the profit out of crime and return assets to victims, while safeguarding civil liberties.”

Adoptive Forfeiture is Back

Last week, the Department of Justice (DOJ) announced it will be bringing back the federal asset forfeiture program, according to the article. The DOJ stated new guidelines about when law enforcement officials can seize assets valued at less than $10,000 and how quickly property owners need to be informed of the seizures. Because of this, state enforcement agencies have a new incentive skirt their own state reforms, like SB 443.

If you believe that your assets were seized unjustly, please contact the Law Office of Ronald G. Brower.