How The Courts Have Made It Easier For Cops To Steal From Citizens

Legal Issues

from the blessed-are-the-road-pirates dept

It’s always been easy for cops to take stuff from people. Civil asset forfeiture allows law enforcement to bypass most of the Constitution so long as they imply things about the supposedly illegal source of the property they’ve taken from citizens.

The Fourth Amendment is almost worthless in these cases. Since there are no criminal proceedings, there’s no avenue to challenge the search because prosecutors (who also often directly benefit from forfeiture) aren’t going to introduce the seized property as evidence.

Instead, prosecutors take the seized property to court. Literally. Legal actions are brought against inanimate objects, allowing the government to wage a one-sided battle against stuff already in its possession.

Most challenges of forfeitures are futile. It costs nothing for prosecutors to take cases to court. It costs even less for them to do nothing for as long as possible, in hopes that endless delays will deter citizens hoping to reclaim their seized property.

About the only avenue for a constitutional challenge is the Fourteenth Amendment, which guarantees certain due process rights, as well as deters the government from handing out far more punishment than the crime deserves. In this case, the car’s owner was never charged with a crime . So, it would stand to reason any civil forfeiture violates the 14th Amendment because any amount at all exceeds the financial or punitive culpability for the charged crime because… well, no criminal charges are ever brought.

That would seem to make sense but the nation’s courts have proven willing to assist in a futile drug war by pretending taking stuff from random people somehow restricts the flow of illegal drugs into this country. Obviously, that hasn’t worked any more than the rest of our Drug War. Illegal drugs are still easy to obtain, something that somehow allows the DEA and other law enforcement agencies to secure funding in perpetuity to continue losing a drug war in perpetuity.

There’s another case headed to the Supreme Court dealing with asset forfeiture. It’s unlikely to change the status quo, even though it involves the government taking property from an innocent person just because it can. Here’s Madiba Dennie with more details at justice-focused site Balls and Strikes.

In 2017, Halima Culley bought a car for her son to use when he went off to college at the University of South Alabama. A few years later, police pulled Halima’s son over and found weed and a gun in the car, a 2015 Nissan Altima. Police impounded the car, which Halima owned, and arrested her son, who eventually pleaded guilty to a minor drug offense. 

Halima, though, was never charged with any crime. She didn’t know her son had weed in the car. And she wanted her car back. 

Alabama would not make it easy. The state sought to keep her car by using a process called civil asset forfeiture, which lets the government seize money and property allegedly involved in a crime. Alabama law allows the state to keep the property it seizes while a forfeiture action proceeds through the courts—a process that can take months or even years. For people like Halima, the “exclusive means” available for getting their property back earlier is ponying up a bond of twice its value, as assessed by the sheriff or court clerk. For Halima, the bond could easily have been more than $30,000.

That’s a monopoly on injustice — something the government can do because it’s the only game in town. If you don’t like how your government treats you, you’re free to complain. You’re even free to vote. But neither of those things is likely to dissuade government officials and agencies from vehemently protecting their own interests, in this case the easy profits delivered by civil asset forfeiture. The government takes the stuff, sets the rules for challenging seizures, and adds a considerable profit margin to the stuff it seizes to deter people from easily reclaiming their (stolen) property.

Culley took her case to court. Twice. She lost at the district court level and was rebuffed again by the Eleventh Circuit Court of Appeals. This is Culley’s last ditch attempt to see some sort of justice done. But even though courts have occasionally expressed their displeasure with forfeiture programs, these programs still operate, for the most part, unaltered and with impunity all over the nation.

At the district court level, the court gave law enforcement a break it simply wasn’t willing to extend to Culley. The court decided both parties excessively delayed the forfeiture proceedings. Somehow, Culley was found to have unnecessarily delayed this (one-sided) proceeding because she didn’t pay the ransom demanded for the seized car. According to the court, this was somehow a forfeiture of her property interest, despite the fact that she filed a motion for the return of her property which she (somehow!) won, despite Alabama’s stacking of the forfeiture deck.

Apparently unhappy the government wasn’t going to get away with this, the lower court decided to mix and match Constitutional rights until it could find a way to prevent her from reclaiming her car.

The lower courts also fault Halima for doing “nothing to press forward on the underlying forfeiture case.” They largely ignore that the same could be said of Alabama: The state initiated forfeiture proceedings in February 2019, but sat on the case until the court scheduled a status conference in September 2020, when Halima filed and won a motion to get her car back. The lower courts graciously conceded that Halima was “perhaps not solely responsible for the delay” but still “played a significant role,” since she “did not proceed with the bond nor any pleadings requesting the state court set the matter for hearing.”

Why a Sixth Amendment speedy trial standard should govern a Fourteenth Amendment due process case, I couldn’t tell you. But the upshot of this is: The government kept Halima’s car for almost two years and then said that it was her fault.

Perhaps the Supreme Court will actually hear this case and rule on its merits. And, for once, Justice Clarence Thomas may decide to be on the right side of the Constitution. As Dennie points out, Justice Thomas wrote in 2017 case that civil forfeiture was a system that catered to cops’ worst self-interests, resulting in a process that “has led to egregious and well-chronicled abuses.”

Yes, civil asset forfeiture is a rigged, selfish, stupid game. Those who stand to gain from it have carefully cultivated these programs to expand them from targeted seizures truly meant to cripple large criminal organizations to a free-for-all where any property, no matter its value, is fair game for opportunistic officers. Instead of crippling drug empires, civil forfeiture has just allowed cops to go on shopping sprees for stuff they want.

And because efforts like Culley’s threaten to upset the (bad) apple cart cops have hitched to their gravy train, the government has already filed several briefs in support of taking property away from innocent people just because the law — as it stands — says it can. That might get a bit awkward at the nation’s top court, given the ongoing employment of the Court’s loosest cannon.

Troublingly, the federal government and more than a dozen state and local government groups filed amicus briefs on the side of highway robbery, thus putting them in the bizarre position of getting out-ethics’d by Clarence “I Do What I Want” Thomas. The states argue that civil asset forfeiture is a deterrent that “eliminates the means for committing crime” and “disrupts” the “cash flow” of criminal organizations. This does not paint a realistic picture of where that money comes from or where it goes. Cops often don’t charge the people whose property they take, and the median amount seized is a little more than $1200; in some states, it’s as low as a few hundred bucks.

For now, though, the status quo still stands. Alabama is free to steal property, place ransoms on it, and auction it off for its own benefit after outlasting the few who dare to engage with it on its severely slanted playing field. Backing its abuses are two consecutive federal court decisions that say there’s really nothing wrong with civil asset forfeiture, even when it does nothing to deter people like Halima Culley from engaging in the sort of criminal activity they never engaged in in the first place.

And if the Supreme Court decides this case isn’t worth its time, nothing will change anywhere in the nation. The government will be allowed to further enrich itself with pointless seizures that do nothing to deter crime or otherwise benefit anyone but the entities directly involved in this court-blessed theft.

Filed Under: asset forfeiture, civil asset forfeiture, legalized theft