Civil asset forfeiture allows law enforcement to take property from citizens, regardless of whether the property owner is guilty or innocent — and without even charging the owner with a crime. Let’s look at a case that was recently declined review by the Supreme Court to see how this works.
On April Fool’s Day in 2013 (how appropriate), the Beaumont, Texas police pulled over James Leonard for a traffic infraction along a known drug corridor. During a search of the vehicle, the officer found a safe in the trunk. Leonard indicated that the safe belonged to his mother, Lisa Olivia Leonard. The police obtained a search warrant and discovered that the safe contained $201,100 and a bill of sale for a Pennsylvania home.
Texas filed for civil forfeiture of the money, claiming it was the profits from illegal drug sales, though Lisa Leonard said the money was from the sale of a house and had the bill of sale verifying the proceeds.
A trial court and an appellate court did not believe her, even though no one was charged with a crime or convicted. The Supreme Court recently turned down her case because of a procedural error. Leonard asserted that the seizure violated the Due Process Clause of the Constitution, but her attorney failed to make that argument before the lower courts. So, it was not ripe for the high court.
Although Justice Thomas agreed that the court should not yet hear the case, he wrote a six-page commentary on the evils of civil asset forfeiture. Mind you, this is the same justice who is known for his silence during legal arguments. In his writing, Justice Thomas asked whether modern civil forfeiture statutes can be squared with the Due Process Clause and our Nation’s history. In other words, why are police still allowed to seize property from people without ever charging them with a crime?
The timing of Justice Thomas’ outrage is perfect. On July 17, 2017 U S Attorney General Jeff Sessions called for increased civil asset forfeiture.
The Justice Department plays a huge role in asset forfeiture through its Equitable Sharing Program, which allows state and local police to have their forfeiture cases “adopted” by the federal government. The feds take over the case, and the seized money or proceeds from the sale of seized assets is put into the equitable sharing pool. In return, the department gets up to 80% of those funds back. The Equitable Sharing Program distributes hundreds of millions of dollars a year to police departments around the country.
Civil asset forfeiture has been a reality in this country since 1984. It was originally sold as a tool for going after the assets of drug kingpins, but nowadays it seems to be used against a lot of ordinary Americans who just have things that law enforcement wants. It’s also a way for law enforcement agencies to maintain off-budget slush funds, thus escaping scrutiny.
A simple Google search will reveal some outrageous cases. In one instance, a man was stopped leaving a casino and his $50,000 was confiscated by a Sheriff’s deputy who bragged that the casino goer would spend more than that in legal fees and still never see his money. In another, cash was taken from a man who was literally en route to the dentist for dental work.
Some states have taken steps to curtail the abuse, but in many the practice is encouraged and exploited. I know folks in Mercer County that that carry large sums of money on them. For instance, not too long ago, Kent and I were at a bank where an older gentleman came in with a large sack of cash to make a loan payment. Civil asset forfeiture could conceivably have happened. All it would have taken is an alleged traffic violation in a known drug corridor. Keep in mind that I-75 is just that. Many rural Ohio communities are also experiencing serious issues with heroin, opioids and methamphetamine, which makes an easy argument for law enforcement.
Criminals should not profit from crime, but not at the expense of our civil liberties and constitutional protections. And agriculture needs to understand it could easily apply to them. An alleged violation of EPA laws when pumping manure could lead to the confiscation of all of the equipment. Granted, most law enforcement agencies would be deterred from this because they would not want to deal with the smell and waste. But they may want the farmer’s truck.
Accusations of drug residue in a cull cow could conceivably lead to forfeiture of assets of the dairy. Assertions of crop insurance fraud could lead to seizure of the planting and harvesting equipment and/or the farm checking account.
What if you rent out a home and your tenant is involved in the illegal manufacture or sell of drugs? Law enforcement could argue that the property was involved and seek to seize it.
The targets of civil asset forfeiture tend to be those without political clout or resources. Justice Thomas wrote that forfeiture operations “frequently target the poor and other groups least able to defend their interests in forfeiture proceedings.” That makes the procedure even more insufferable.
Here’s hoping that the Supreme Court finds a civil asset forfeiture case without procedural issues very soon.