Down the Rabbit Hole with Civil Asset Forfeiture: NMA E-Newsletter #494

As one of the NMA’s current national issues, Civil Asset Forfeiture or CAF is a program that allows the government at all levels to confiscate cash, cars and even homes from people who are suspected of criminal activity. Even if you are ruled innocent, your property is not necessarily returned; a trip to civil court (and associated expenses) may be needed to get it back.

The NMA and Washington lobbyist, Rob Talley, are working hard to reform CAF so that

1) property cannot be seized by a government agency without a conviction and without underlying ties to the crime, and

2) the CAF process is much more transparent to the public.

Here are four developments from recent months that signal a backlash against CAF, bolstering our efforts on Capitol Hill:

Timbs v. Indiana

The US Supreme Court announced in June that for the first time in 20 years, they would review the constitutionality of CAF laws. The case focuses on Tyson Timbs who was forced to forfeit his $40,000 Land Rover to the state of Indiana after he pled guilty to selling less than $200 worth of drugs. Addicted to opioids, Timbs tried to sell four grams of heroin to undercover officers in 2013. He agreed to serve one year of house arrest and pay $1,200 in court fees. The state also wanted his Land Rover which Timbs had purchased from his father’s life insurance proceeds. Timbs argued that surrendering his truck to the state would violate his protection against excessive fines per the Eighth Amendment.

Institute for Justice Attorney Wesley Hottot said that this case is about more than just a truck. “The Excessive Fines Clause is a critical check on the government’s power to punish people and take their property. Without it, state and local law enforcement could confiscate everything a person owns based on a minor crime or—using civil forfeiture—no crime at all.”

Hawaii

A recent report states that Hawaii’s attorney general has mismanaged the state’s asset forfeiture program. According to the audit, the AG’s administration of the program:

  • Failed to fully account for property obtained through CAF
  • Mismanaged program funds
  • Failed to allocate some $2 million for drug prevention as required by law
  • Failed to provide guidance to law enforcement, county prosecutors and the public.

State law allows police to confiscate property that is

a) Illegal to own,
b) Used in the commission of certain crimes, or
c) Derived from alleged crimes.

All that Hawaii prosecutors need to currently show in order to invoke CAF is probable cause. The AG’s office presides over such cases in civil court which are separate from criminal proceedings.

The audit found from 2006 to 2015, 85 percent of property owners did not try to get their property back even though they had the right to contest the confiscation in civil court. Legal costs were certainly a barrier for many. A quarter of the cases in 2015, property was forfeited even though the owner was never charged nor convicted of a crime. In four percent of the cases, property was forfeited even though charges were dropped.

The audit also criticized the AG’s office for not doing a better job in giving the public guidance on how to petition the AG to have property returned in a process known as filing a petition for remission or mitigation.

The Institute for Justice, a civil rights law firm with an emphasis on CAF, gave Hawaii a grade of D+ for its program overall and an F for accounting practices on how seized cash and property were later spent by law enforcement agencies.

Oklahoma

The Oklahoma Court of Civil Appeals in June ruled that the state could not keep $119,820 that Oklahoma City police had taken from Quoclong Da Ngo in January 2012. Ngo had been pulled over for not using his turn signal long enough while changing lanes on Interstate 40 and traveling 10 miles below the speed limit of 70 mph. Ngo was driving a rental car from Florida. After he granted permission voluntarily, police searched the car and found three bundles of cash in vacuum-sealed packages but found no drugs or any other signs of criminal activity.

A year later, prosecutors dropped the criminal case against Ngo. Prosecutors fought to keep the money claiming that vacuum-sealed bags of cash are indicative of drug distribution.

The civil appeals court ruled that the city was not legally able to keep the cash because the “state presented no evidence to support the nexus between the defendant’s cash and a violation of UCDSA or the Uniform Controlled Dangerous Substances Act.”

New York City

In May, the nonprofit advocacy group Bronx Defenders won their case against the New York City Police Department (NYPD). The NYPD agreed in a settlement to share data on the millions of dollars seized through CAF.

Since 2014, the Bronx Defenders has been fighting for the right to make the CAF program more transparent for their low-income clients. Two of those years were spent in litigation under the state’s Freedom of Information law. Legal Director Adam Shoop said, “Our lawsuit grew out of the lack of basic information around millions of dollars of property the NYPD seizes during arrests, like how much is received, how much is kept as revenue, and how much is returned.” He added that the settlement will now bring transparency to the program.

The Defenders will receive approximately 160,000 records and after reviewing will decide on their next steps. In 2016, NYPD reported that they kept $7.1 million in revenue from seizures. The department did not report a figure for 2017.

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