Those who watch Last Week Tonight With John Oliver know what it means to be the subject of a civil forfeiture. As Oliver described it, “It’s really legalized robbery by law enforcement.”
Cops have the authority to seize items they suspect are linked to a crime, most individuals can’t afford a lawyer to fight the forfeiture. And once the property is taken, it’s extremely rare that they ever get it back.
While some asset forfeitures actually seize property for the purpose of, for example, depriving a drunk driver of a vehicle, that’s not always the case. And Oliver is the latest to recount the horror stories. A guy is driving cross-country with a lot of cash. Cops suspect he’s dealing drugs and don’t find any, but they keep the cash anyway. A man is busted for selling $20 of pot to an informant, and Philadelphia cops move to seize the home where his elderly parents live. In one case the defendant actually won after a years-long legal battle, federal officials moved to seize Russ Caswell’s family motel because they alleged some guests were dealing drugs from its rooms.
The newest revelation on this practice comes from the Institute for Justice, which compiled video clips from government officials on the civil forfeiture industry, and shared the most offensive bits that suggest cities and law enforcement agencies are motivated by profit and utility, with little regard for the havoc wreaked on owners of the property.
Referring to the case of the Philadelphia grandmother whose home was seized, a city attorney with extensive civil forfeiture legal knowledge called the house seizure a “gold mine.” In what may have been a joke, City Attorney for Las Cruces, New Mexico, Pete Connelly surmised that the legal concept of “public nuisance,” might allow seizure of other items, too. “Could you take an airplane? Could you take bicycles? … I mean where could you go with it?”
Speaking at a forfeiture conference in September, Connelly notes that most of the people whose cars are seized are “just down-to-earth human beings that have their cars seized.” But, he adds, “we always try to get every once in a while, like, maybe a good car.”
As a New York Times story on the videos explains, Connelly recounts with glee an incident in which cops almost seized a Mercedes. “A guy drives up in a 2008 Mercedes, brand new. Just so beautiful, I mean, the cops were undercover and they were just like ‘Ahhhh.’ And he gets out and he’s just reeking of alcohol. And it’s like, ‘Oh, my goodness, we can hardly wait.’ ” They did seize the car, but they had to give it back to their dismay, because they realized they couldn’t prove the driver had control of the vehicle at the time of his inebriation (he never says if this guy had a lawyer).
In a New Jersey continuing legal education class, Mercy County prosecutor Sean McMurtry described how the program works: “What we’re talking about here are cash or assets that can be utilized by law enforcement: motor vehicles, computers, flatscreens. We’re not interested in taking a charter from a company as forfeited asset because it doesn’t have any monetary value to law enforcement.”
He later added, “When it comes to property, the flatscreens are very popular with police departments,” which need the televisions for a range of in-office uses.
Counseling police departments on how to decide when to seize property, he had this advice blown up on a slide: “IF IN DOUBT AND YOU CAN’T REACH MCMURTRY … TAKE IT.” The lesson plan adds that in the “worst case scenario,” “WE CAN ALWAYS GIVE IT BACK.”
But many municipalities almost never do. Connelly boasted that he’s won 96 percent of his forfeiture cases, and settled almost all of the rest. He said only one person has appealed a case since 2006. He called the complaint in civil forfeiture cases a “masterpiece of deception” and “really hard to deny,” especially for most defendants who don’t have a lawyer.
In many jurisdictions, there is a defense for cases when cops seize property that actually belongs to someone else, say, a person driving a parent’s car. McMurtry explained that the defense known as the “innocent owner defense” is actually ‘very weak” because there are “easy ways” to overcome it. He provided one example in which he kept the keys from the individual whose car he seized. While the car was registered to another owner, the keychain contained a ShopRite Price Plus Card that was registered in the driver’s name. That ShopRite card, he said, was used as primary evidence to overcome the “innocent owner” defense.
During both events, panelists explain that crime deterrence is the primary motive for the programs, and that revenue is only a second or third purpose of the program. But even if it’s not the driving force behind the program, it’s a perk they’re not afraid to embrace regardless of the cost.
“Forfeiture is such a thing that people are like, it’s evil,” Connelly said. He paraphrased his critics: “You’re seizing things. You’re taking things from people. It’s unconstitutional. It’s terrible. Look what you’ve done. And plus even you might make some money. Which is even worse!”
But he cites court precedent upholding red light cameras that says raising money through a program that simultaneously improves traffic compliance “has much to recommend.” And that’s enough for him to tell the audience, “It’s ok. Don’t feel bad.”