New Limits on Forfeiture

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On Friday, Attorney General Eric Holder announced major new limits on asset forfeiture. In a nutshell, he put a stop to the federal civil forfeiture of assets seized by state and local law enforcement and “adopted” under the Equitable Sharing program. The details are a little fuzzy, but this may be a very big deal in the world of forfeiture, for reasons I discuss below.

What the program was. For years, the federal government has used federal civil forfeiture law to obtain ownership of property seized by state and local law enforcement, and to give a portion of the value of that property back to the agency that made the seizure. For example, a local police officer in North Carolina might conduct a traffic stop, obtain consent to search the vehicle, and find $20,000 in cash in the glove compartment. Suspecting the driver of drug activity, the officer might seize the cash. Regardless of whether the officer charged the driver with a crime, federal authorities might “adopt” the case and initiate forfeiture proceedings to obtain ownership of the cash, and might then return 80 percent of the cash to the officer’s agency. The program, called Equitable Sharing, is detailed in United States Department of Justice, Guide to Equitable Sharing for State and Local Law Enforcement Agencies (2009).

This has been a popular program for several reasons. First, once federal civil forfeiture proceedings begin, forfeiture is very likely to result. Compressing the law a bit, the government’s burden of proof in such proceedings is only a preponderance of the evidence that the property has a substantial connection to a criminal offense, 18 U.S.C. § 983(c), a burden that smart, experienced federal lawyers are often able to meet. Second, the federal government handles all the legal work, removing that burden from state prosecutors and agency lawyers. Third, the assets that are “shared” back to the agency that made the seizure stay with that agency and may be used for virtually any law-enforcement related purpose, such as attending training and purchasing equipment. By contrast, any forfeiture made under state law is required to go to the public schools under the state constitution. N.C. Const., Art. IX, Sec. 7.

Criticism of the program. Critics of the program argued that it provided an end run around states’ efforts to direct how forfeited assets should be used; that it created a financial incentive for state and local officers to seize assets, even in questionable cases; and that it resulted in abuses, particularly of citizens who carried large amounts of cash because they ran legitimate cash-based businesses. The Washington Post recently ran an influential investigative series that was generally critical of the program; one story in the series is here.

The new limits on the program. The new policy eliminates federal “adoptions” of state and local seizures. (The Department of Justice press release on the subject and the actual order mandating the changes are both available online.)

However, there are two caveats to the new policy:

  • There is an exception “for property that directly relates to public safety concerns, including firearms, ammunition, explosives and property associated with child pornography.”
  • Federal forfeiture may still take place when the seizure is made by “joint operations involving both federal and state authorities.”

 

The public safety exception appears to be quite narrow. The scope of the “joint operation” doctrine is unclear and may be much broader. Jacob Sullum at Reason’s Hit & Run Blog breaks down some numbers and concludes that 86% of equitable sharing payments to state and local law enforcement agencies came from joint operations. By contrast, the Washington Post reports that less than half the payments came from joint operations. Radley Balko notes in this analysis that a key question is whether “the hundreds of multijurisdictional drug task forces around the country” count as joint operations. My guess is that the answer depends on the extent of the federal involvement in a particular task force, including whether there are federal officers on the task force and whether federal prosecutors provide legal advice to the task force.

The impact on law enforcement agencies and their budgets. Many law enforcement officers and agencies aren’t happy with the announcement. The National Sheriff’s Association states that it is “deeply disappointed” with the new policy, which it predicts will reduce adoptive forfeiture cases by half. The executive director of the National Association of Police Organizations told the Post that “[t]here is . . . grave concern about the possible loss of significant funding” as a result of the order. The Post itself reported that “[f]or hundreds of police departments and sheriff’s offices . . . seizure proceeds accounted for 20 percent or more of their annual budgets in recent years,” though that is a small fraction of the thousands of state and local law enforcement agencies across the country. Not all agencies are greatly concerned. Locally, for example, the Fayetteville Observer reports that the Cumberland County Sheriff’s Office does not believe that the new policy will have a major effect on its operations.

The future of forfeiture in North Carolina. Assuming (1) that this new policy remains in place after Holder leaves the Department of Justice, and (2) that the joint operations doctrine doesn’t turn out to swallow most of the new rule, there may be a significant reduction in federal forfeiture of assets seized by state and local law enforcement officers. Perhaps that will result in an uptick in state forfeiture of such assets. My impression, based on the lack of appellate cases in the area and on the occasional question that I receive, is that state forfeiture law is rarely used and that there are few, if any, lawyers on either side who are expert in the relevant procedures. (If I’m wrong about that, I’d be interested to hear from anyone with substantial experience in state forfeiture matters.) Perhaps all need to review state forfeiture law in the near future.

16 comments on “New Limits on Forfeiture

  1. I do not agree with the exposed abuse’s of this law but as a retired officer, if I searched and came up with 20k in a brown bag I would immediately consider illegal activity. If the individual has no record and can provide proof of where it came from then shame on the departments for trying to pad their budgets! Departments should be fined if found to be abusing this law!! Cops always ruin it for themselves!

    • Before I say my piece on this subject, know I am a retired L.E.O. officer also.
      What everyone is missing in all of this is “The burden of proof all ways lays on the government and “Must” be proved “Beyond a reasonable doubt”, not justified or explained by the suspect!
      ******It is called the U.S. Constitution my friends!*******
      We are in the shape we are in right now due to “Rouge” state and federal governments and politicians who “Think” they can do anything they want to do and screw Constitutional rights under the 4th Amendment to be protected from “Unreasonable Searchs and Seizures”!
      If those in government and law enforcement abuse this over and over again,(we) can expect the same treatment down the road from
      someone in the future !
      This must be stopped along with having different and double standards for the public, law enforcement officers and politicians !
      **Hillary & Bill Clinton are good examples of what I am talking about ! ****WAKE UP AMERICA BEFORE IT IS TO LATE !*******

      • You are a smart man. I had the Raleigh Police Department steal a little over 13, 000 dollars from me in 2007. They are crooks and honestly make good people want to do very bad things. Protect and Serve is not in their agenda.

  2. I used to be involved with the suizues at my agency. We always looked at the possibility that large amounts of cash were the result of illegal activity. But, we always checked into how the person came to be in possession of the cash, or property. If we could not PROVE the currency or property was illegally gained, it was returned to the owner. If not, we asked for Federal adoption and Asset Forfeiture. We fought crime with criminal’s money, either by paying for training, equipment or using the funds to purchase drugs and pay informants. This new policy will hurt local law enforcment and law abiding, tax paying citizens. Only time will tell how much.

  3. There are many Local and State Officers tasked with drug interdiction as part of their duties. Under State Law, seizures are forfeited to the State or school system. I wonder how many officers are going to be reassigned when seizures are no benefit to the law enforcement agencies. I believe this will result in less seizures, right or wrong, officers and agencies are more willing to put forth effort (make seizures) when it benefits them. When I say seizures, I mean all seizures, I have no doubt that this will also mean more drugs on the streets. As for these illegal seizures, I read the article of which if I remember right, had 2 or 3 examples. I would guess there are thousands of seizures are made a year. If someone is carrying $20,000 in cash (and this is low from my experience involving Federally adopted seizures) they should be able to easily explain it aside from illegal activity.

  4. Can you say, “Highway Robbery.” Nobody trusts police anymore, except their sycophants and the court system which depends on them to keep those court costs coming in. Consent to search? They’re going to do it anyway and lie about it. Stuff like this is going to result in Second Amendment solutions.

  5. That is the issue…If someone can document from where the money came, it is typically not seized. Also, one of the primary questions that is asked by the federal agencies when speaking with the local officers is: “Is there a criminal record” or “Are there any drugs found with, or in close proximity to, the money?” I will not say it doesn’t happen, but officers don’t just ride around and take people’s money, unless there are some supporting circumstances. From my experience, MOST of those (NOT ALL) who do not trust the police are the ones who are doing something wrong, or are guilty themselves.

  6. This new enactment gives liberty back to the citizens. The story run by the Post illustrated how the now defunct forfeiture law burdened law-abiding citizens. Specifically, the law was flawed at its inception–in that it did not promote the proper checks and balances for justifying such seizures. It was over-broad, which in turn promoted overreaching by law-enforcement. All forms business, whether legal or illegal, promote one essential proprietary interest– obtaining cash. Therefore, the blanket notion that someone riding around with large amounts of cash was likely involved in illicit criminal behavior was purely speculative (but, I am sure jet-flying, limousine riding Rick Flair was never pulled over and his assets seized).

    As for the “joint operations” provision, seizures may not become less frequent in some areas. You will have those bordering cities near the Idaho and Washington line that may be able to continue seizing property under the umbrella of “joint operations.” Overall, this seems to be a positive step in the right direction.

  7. First off, if people think that the police are randomly seizing unexplained large amounts of cash without adhering to Constitutional rights and then buying toys for the office then they are sadly mistaken. The federal civil asset forfeiture program is an important resource for certain limited circumstances, but the Washington Post makes it seem like law enforcement abuses it. I would venture to say that the average patrol officer does not even understand the federal civil asset forfeiture program much less tries to find money to seize in order to benefit the agency. It is not as common as the article seems to make it.

    I think in this State, the federal program is more controversial because the school systems are disappointed to see that the money does not go to them but instead back to the law enforcement agency. Nobody bothered to do a public records request for a local school system and see how much money law enforcement agencies turn over to them. At least locally, it is common for the agency to get court orders to release cash from felony drug cases after conviction and the money is taken to the school system (90-112 “the law-enforcement agency having custody of money that is forfeited pursuant to this section shall pay it to the treasurer or proper officer authorized to receive fines and forfeitures to be used for the school fund of the county in which the money was seized.”) The school systems certainly benefit quite well on this. It is also important to note that most of these orders are requested by law enforcement and not started by a prosecutor or judge.

    The much more common avenue of seizure that results in a benefit to the agency that all police officers are very well aware of is the North Carolina Unauthorized Substances Act. You will be assessed a NC Excise Tax if you possess more than 42.5 grams of marijuana ($3.50 a gram), 7 or more grams of any other controlled substance sold by weight ($200 a gram), or 10 or more dosage units of a controlled substance not sold by weight ($200 for each 10 units unless it is a low street value then it is $50 per 10 units). For those honest drug dealers out there that insist upon paying for the government services that they and their families regularly consume, they may anonymously apply and pay for a revenue tax stamp to be placed on their illegal substances so that if they are ever caught they will not need to have a tax lien placed on them. 75% of the money collected by the NC Department of Revenue is returned to the law enforcement agency responsible for the investigation that led to the tax collection.

    So basically with controlled substance tax and with the federal forfeiture being conducted through joint operations which is very common (most agencies have sworn local officers that are jointly sworn with DEA, ATF, FBI, US Marshals) I don’t see this change as being that big of deal.

    I also would like to point out that I personally believe that all criminal investigations should be motivated by the pursuit of justice and not monetary gain. When elected leaders responsible for voting for budgets count on this “bonus” type money it can result on focusing precious law enforcement resources on cash generating operations (drugs), but sometimes the reality is law enforcement investigations can eat cash and if it stops a criminal that rarely gets caught like identity theft or sophisticated financial crimes then so be it.

  8. For those of you who don’t think rogue leos are not in the habit of illegal seizure of assests , you need to read the dozens of articles to the contrary. Its also not the citizens duty to prove his innocence but the law enforcement agencys duty to prove his guilt or in this situation that his asset was obtained illicitly and not by a preponderance of the evidence but beyond a reasonable doubt.

  9. […] digs into forfeiture. I blogged here about recent changes to the federal Equitable Sharing forfeiture program. WRAL has an article up […]

  10. There are police officers here telling me I must prove to them I’m innocent!!! Please read your oath if you can read.

  11. […] Forfeiture.  Jeff previously blogged about former Attorney General Eric Holder acting to limit the use of civil asset forfeiture by law […]

  12. Thank you Eric Holder for trying to put a lid on this “Good Ol Boy” system. What can a citizen do to recoup monies stolen by the Raleigh Police Department? The judge in my case released the money to my lawyer and I, but upon visiting the treasure office, we were told the Federal government in Quantico VA had it. They seized a little over thirteen thousand dollars from me that was a small inheritance from my father passing away. These cowboys need to be held accountable for their wrong doings. Please help!

  13. Is there a time limit in NC on when a person can request that his/her previously seized assets be returned following the State’s Voluntary Dismissal (w/prejudice) of the charges against that person for crimes allegedly associated with those seized assets? What impact has AG Sessions’ zeal to renew civil forfeiture & equitable sharing had on NC law enforcement practices & policies?

  14. The North Carolina Constitution requires that all penal forfeitures go to the county board of education where the seizure occurred. N.C. Const. Art. IX, sec. 7. Cops are robbing school kids of their nickels. And doing this in defiance of their oath to uphold the laws of our State. Pretty shameless bullying.

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