Search Results for: forfeiture

Civil Asset Forfeiture Reform Fails in Alabama

May 24, 2018 By Brian Silber

This spring, lawmakers in Alabama looked set to reform civil asset forfeiture. However, even though politicians and interest groups across the political spectrum supported reform, the reforms failed.

The libertarian Institute for Justice rates Alabama’s current civil asset forfeiture laws as “among the worst in the nation.” Civil asset forfeiture is the process where law enforcement can seize an individual’s property if it is suspected of being involved in a crime. In most states, a criminal conviction is not required before property is seized. In Alabama, profits from civil asset forfeiture are used to fund law enforcement. This has led to accusations of abuse and “policing for profit.”

National opinion polling shows 84 percent of Americans oppose seizure of property from individuals who have not been convicted of a crime. Alabama State Senator Dick Brewbaker (R-Pike Road) said the state legislature shares this dissatisfaction. “If you go interview legislators one by one, it’s hard to find one who will defend our civil asset forfeiture law. There is very little debate on whether the current law is being abused.”

In January, two state representatives, Arthur Orr (R-Decatur) and Arnold Mooney (R-Birmingham) cosponsored legislation which would have transformed civil asset forfeiture procedures. Firstly, the new legislation would require a criminal conviction before property could be taken. Secondly, local law enforcement would no longer receive proceeds from federal forfeitures. Finally, the legislation would have set up an annual report on how proceeds from forfeiture were used.

Law enforcement agencies pushed back against the Orr-Mooney bill. In February, I reported on an opinion piece written by District Attorney Brian McVeigh and Sheriff Dave Sutton where they argued Orr-Mooney would “gut what is an effective crime-fighting tool.”

McVeigh and Sutton further argued that policing for profit was not a negative thing. “What incentive would local police and sheriffs have to invest manpower, resources and time in [drug ring and stolen property] operations if they don’t receive proceeds to cover their costs?”

The Southern Poverty Law Center (SPLC) and the Alabama Appleseed Center for Law and Justice published a report in January which analyzed civil asset seizures by the police in 2015. They showed that law enforcement agencies were awarded $2.2 million in 827 cases. In 25 percent of those cases, the owner of the seized property was neither charged with a crime nor even linked to one.

“They’ve admitted to policing for profit,” explained Alabama Appleseed’s executive director, Frank Knaack. “We’ve pointed out that they were not going after bad guys at all.”

Nonetheless, law enforcement remained unconvinced a major revision of civil asset forfeiture procedures were necessary. Instead, groups from across the political spectrum met to negotiate a deal they could all agree on. This revised version of Orr-Mooney focused on requiring transparency.

Artur Davis of the Institute for Justice, who was involved in the negotiations said, “It was clear we needed to seek a narrower bill—not to repeal forfeiture but require an extensive amount of detailed reporting of the forfeiture activity that goes on.”

In March, senators debated this revised bill. However, Senator Rodger Smitherman (D-Birmingham) added an amendment requiring law enforcement to prove seized items had been used or had been intended to be used in a criminal offense.

As this amendment had not been agreed on by all parties during the negotiation process, law enforcement became unhappy with the bill. “To inject other issues after negotiations have been completed is bad form. It’s bad faith,” said Davis. “Not surprisingly, law enforcement felt they were blindsided, and they withdrew their support.” Without time to renegotiate before the end of the session, the bill failed.

Smitherman remains optimistic about reform of civil asset forfeiture in Alabama. “We’ll get back at it next session,” he says. Davis is more sanguine: “It’s entirely possible in the way this ended, that it could be difficult for good faith negotiations to begin again.”

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05-06-2018 How Alabama Lawmakers Swung and Missed on Civil Asset Forfeiture

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Albuquerque Ends Civil Asset Forfeiture

April 25, 2018 By Brian Silber

The city of Albuquerque has announced it will end its civil asset forfeiture program. This change comes over two years after civil asset forfeiture was essentially banned at the state level in New Mexico.

In 2016, Arlene Harjo had her 2014 Nissan Versa seized by the city of Albuquerque. She never committed a crime nor was she even charged with a crime. At the time her car was seized, Arlene had lent it to her son, Tino. He was stopped and charged with drunk driving. While Arlene agreed her son should be punished if he broke the law, she did not agree she should lose her car because of it.

The city, however, was following its standard seizure procedures in taking Arlene’s car. According to law enforcement’s DWI procedures, police could seize the vehicle of anyone arrested for drunk driving even without a criminal conviction.

In the five-year period between 2010 and 2014, the city seized more than 8,300 vehicles. That is one car for every 66 residents of Albuquerque. These seizures netted law enforcement an average of over $1 million per year. The proceeds of these seizures could then be used to pay the wages of the law enforcement officers who make the seizures. This leads to what critics of the system, including the libertarian Institute for Justice, describe as “policing for profit.”

“It’s a scam and a rip-off. They’re taking property from people who just loan a vehicle to someone,” explained Arlene. “Everybody I’ve talked to has had it happen to them or somebody they know.”

When the city said Arlene would have to pay $4,000 to get her car back, she refused and took the city to court. Although they returned her vehicle in December 2016, Arlene continued to pursue her case. She aimed to achieve a bigger goal: to make sure Albuquerque followed the rest of the New Mexico in banning civil asset forfeiture.

Albuquerque had argued the reforms implemented statewide in 2015 to ban civil asset forfeiture did not preempt the city’s procedures. Nonetheless, the adverse publicity brought by Arlene’s case led to a significant decline in proceeds from seizures of vehicles. From a high of $1.81 million in 2010, these proceeds had fallen to $598,000 by the end of 2017.

On March 30, 2018, U.S. District Court Judge James Browning issued an opinion on Arlene’s case. Browning stated that, “The Court concludes that the Forfeiture Ordinance’s innocent owner defense violates due process because innocent owners have a great interest in their vehicle, and there is a significant risk of erroneous deprivation flowing from placing the burden of proof on innocent owners.”

Addressing the question of “policing for profit,” Browning continued: “Because it is plausible that the program’s dependent on forfeiture revenues threatens officials’ salaries, the vehicle forfeiture program violates due process. The opinion concluded that there is “strong evidence” that the statewide ban on civil asset forfeiture does, indeed, preempt the city’s procedures.

The following Friday, Mayor Tim Keller announced through an aide that, going forward, Albuquerque law enforcement would only seize vehicles in cases where there has been a criminal conviction.

Robert Johnson of the Institute for Justice is cautiously optimistic about the change. “For years, Albuquerque has refused to abide by state law. … Now we have to see if the city council will walk the walk and fully embrace the New Mexico Forfeiture Reform Act.”

Civil Asset Forfeiture Attorney

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04-12-2018 Three Years After New Mexico Banned Civil Forfeiture, Albuquerque Finally Ends it

04-07-2018 Keller Aide – Mayor Has Ended APD’s Civil Asset Forfeiture Program

08-31-2016 Enforcing Landmark Civil Forfeiture Reforms to Shut Down an Unconstitutional Forfeiture Machine

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Supreme Court May Take up Civil Asset Forfeiture Case

April 19, 2018 By Brian Silber

A case of civil asset forfeiture involving a Hoosier’s seized Land Rover may end up on the U.S. Supreme Court’s docket. If they agree to hear the case, it could transform the approach of law enforcement to civil asset forfeiture across the nation.

Civil asset forfeiture is the process where law enforcement can seize property suspected of being involved in a crime. It is legal in most states, and few states require a criminal conviction for the property to be seized. Proceeds from the profits of civil asset forfeiture are often used to fund law enforcement, leading to accusations of policing for profit.

The case which may be heard by the Supreme Court involves Tyson Timbs. After he was injured at work, he was prescribed the opioid, hydrocodone. He later became addicted to opioids and began to buy pills on the black market. He later turned to heroin.

In 2013, undercover officers arrested Timbs when he sold them four grams of heroin. He pleaded guilty and was sentenced to a year of home detention and five years of probation. He attended a drug treatment program supervised by the court and paid court fees and costs totaling over $1,200.

“I committed a crime, then I did my time and cleaned up my life,” said Timbs.

The state also seized Timbs’ Land Rover. When his father had died, Timbs received $73,000 in proceeds from his life-insurance policy. He used $41,000 of that money to buy himself the car. Timbs’ vehicle was seized because he used his car when buying heroin for his own use.

“With [civil asset] forfeiture, they are trying to take away one of the few things I own, that I bought with money from my dad. Forfeiture only makes it more challenging for people in my position to clean up and become contributing members of society,” explained Timbs.

While cases involving disputes over civil asset forfeiture are common, this case is unique in the legal argument it is based on. Timbs’ lawyers argue that the Eighth Amendment, which bans excessive fines, should shield Timbs’ Land Rover from seizure by the state.

As Indiana law only allows for a $10,000 fine for Timbs’ crime, the court in Indiana initially agreed that seizing a car worth over $40,000 was “grossly disproportionate.” This decision was upheld in an appeal.

However, the Indiana Supreme Court later approved the seizure. The judges issued an opinion saying that, as the Excessive Fine Clause of the Eighth Amendment had not been applied to states before, it did not need to be applied here.

“Indiana is a sovereign state within our federal system,” explained the judges in their unanimous opinion. “We elect not to impose federal obligations on the State that the federal government itself has not mandated.”

In January, Timbs petitioned the U.S. Supreme Court to hear his case. When it was first written, the Bill of Rights applied only to federal powers over Americans. Over the years, a process of “selective incorporation” has seen those federal rights gradually be applied to the states as well.

The most recent incorporation came in 2010 when the Second Amendment’s right to bear arms was applied to the states. In the majority opinion issued by Justice Alito, he noted that the ban on peacetime quartering of troops in private homes and the prohibition of excessive fines were the only two remaining sections of the Bill of Rights the Supreme Court had yet to issue a decision on.

If the U.S. Supreme Court elects to hear the case, it would be an opportunity for limits to be set on law enforcement’s use of civil asset forfeiture. It could give Timothy Timbs and thousands of Americans like him—either people trying to rebuild their lives after making mistakes, or people who have had their property seized unjustly—the chance for relief.

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02-01-2018 Can State Governments Impose Excessive Fines, Treat Citizens Like Walking ATMs? Indiana Says Yes

04-17-2018 Will the Supreme Court Rein in Civil Forfeiture?

Tennessee Legislature Passes Civil Asset Forfeiture Reforms

April 11, 2018 By Brian Silber

A bill giving new protections for people involved in civil asset forfeiture has now passed both houses of the Tennessee legislature. If Governor Haslam signs it into law, it may become easier for people to regain property seized by law enforcement.

The bill passed the State Senate with unanimous support and was supported by both civil rights and libertarian groups. “This is a rare bill because you had the ACLU on one side and the Beacon Center on the other, and they both agreed on it,” said Sen. Todd Gardenhire (R-Chattanooga) who cosponsored the bill.

Civil Asset Forfeiture is a process where law enforcement officials can take possession of a person’s property or money if it is suspected of having been involved in criminal activity. It is legal in most states, and in Tennessee, property can be seized without a criminal conviction or even criminal charges being filed.

Prosecutors, police chiefs and sheriffs have strongly supported the practice, arguing it targets suspected criminals such as drug traffickers. Law enforcement uses the proceeds of civil asset forfeiture to fund future operations; something critics argue amounts to policing for profit.

During hearings last year, the House Civil Justice Committee heard horror stories of Tennessean’s attempts to regain their property after it was wrongfully seized. An attorney from Knoxville spoke of how a woman had been stopped under suspicion of drunken driving. She was charged for possessing prescription drugs for sale; these were later shown to be antacids bought over the counter.

Law enforcement seized her car and the $11,000 in cash she had on her. The cash turned out to be the legitimate proceeds from the sale of her late mother’s property. Although the woman’s case was thrown out, she had a confusing and lengthy fight to regain both her vehicle and her money.

In another case, Mount Juliet police went to the home of Lewis Cain and seized his BMW. Law enforcement said Cain’s son had been seen selling cocaine from the car. The ACLU argued law enforcement had taken the car without a forfeiture warrant and so had violated Cain’s rights under the Fourth Amendment. Further, the ACLU said Cain’s son had been misrepresented as owner of the car in police reports.

The Tennessee Department of Safety and Homeland Security later dismissed the state’s claim to the car and returned it to Cain.

“I have the utmost respect for law enforcement, but the Fourth Amendment has to mean something,” said Cain. “I hope that now the police learn that they can’t just take people’s property for no reason.”

The new bill states that the property owner must be notified within five business days of the Notice of Forfeiture Warrant Hearing. Wrongfully seized property must be returned within five business days after an order of dismissal. The bill also says that seizing agencies must pay attorney fees in cases of wrongful seizure, not to exceed 25 percent of the property or $3,000, whichever is the lesser.

“Tennesseans should not have their property seized without being charged with, or convicted of, a crime. … This bill brings much-needed reforms which should drastically curtail the practice of civil asset forfeiture,” said Tori Venable, executive director of Americans for Prosperity–Tennessee.

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04-05-2018 State Senate Unanimously Passes bill Sponsored by Sen. Todd Gardenhire

04-05-2018 Civil Asset Forfeiture Reform Bill Passes Tennessee Senate

Kansas Law Requires Transparency for Civil Asset Forfeiture

April 5, 2018 By Brian Silber

In Kansas, Governor Jeff Coyler has signed a bill into law imposing strict reporting requirements on law enforcement in cases of civil asset forfeiture. The changes bring transparency to the state’s forfeiture procedures and may lead to further reforms.

In a statement, Coyler said the new law, “will allow us to better protect Kansans’ property rights while also ensuring law enforcement have the tools they need to be effective.”

State Rep. Gail Finney (D–Wichita), who spearheaded the state’s push for reform, says the law represents a good first step but more far-reaching changes will be needed.

“This bill has been a journey for me for several years, since some of my constituents had come to me and said their property had been seized by law enforcement,” says Finney.

While welcoming the law, she remains concerned about the burden placed on people whose property is seized by the state. “This puts a heavy weight on citizens because sometimes they don’t have the resources to fight.”

The reforms are the result of a 2016 investigation into the state’s civil asset forfeiture policies requested by Finney. The investigation revealed law enforcement was not keeping proper track of the proceeds of forfeiture. Further, some local agencies were not in compliance with the state’s requirement to keep detailed records both of property seized and how the proceeds of this property were spent.

The new law means all law enforcement agencies will need to report the location, date and value of seized assets. They will also be required to report if criminal charges were filed in conjunction with the seizures. Agencies will also have to account for the expenditures from the proceeds of civil asset forfeiture.

In addition, the new law has stronger requirements to notify defendants about proceedings in cases of forfeiture. Defendants will now have 60 days to respond to these notices, up from 30 days before the new law comes into force.

According to Senior Legislative Counsel Lee McGrath of the Institute for Justice, “Kansas now has one of the best forfeiture transparency laws in the Midwest.”

However, Finney stresses that while transparency will improve as a result of this bill, it does not reform the underlying practice of civil asset forfeiture in Kansas where police can seize property from an individual if they suspect it is connected to criminal activity. There is no requirement for criminal charges to be filed in cases of civil asset forfeiture.

“The bill does not go far enough to help protect rights and due process of citizens,” says Finney. “Kansas will still be subjected to their property being seized and forfeited on the mere suspicion that a crime has taken place without any arrest, charge or conviction of a crime.”

Supporters of the new law argue it will provide lawmakers with a foundation of facts for possible further reforms. “Accurate data will not only dispel erroneous or partial information on the forfeiture activity in Kansas but will also offer information in the future to assure legislative changes are needed,” says Sheriff Jeff Easter of Sedgwick County.

State Rep. Rick Wilborn (R–McPherson) agrees. “From there, we can draw conclusions and move forward with improved legislation in years to come,” he says.

Civil Asset Forfeiture Attorney

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04.04.2018 Troubled by Highway Seizures, Kansas Enacts Asset Forfeiture Transparency

04.02.2018 New Law Will Require Police in Kansas to Track How They Use Seized Property

01.25.2018 Kansas House Bill Touted as First Step to Reforming Civil Asset Forfeiture

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Search Results for: forfeiture

Civil Asset Forfeiture Reform Fails in Alabama

Albuquerque Ends Civil Asset Forfeiture

Supreme Court May Take up Civil Asset Forfeiture Case

Tennessee Legislature Passes Civil Asset Forfeiture Reforms

Kansas Law Requires Transparency for Civil Asset Forfeiture