By John Lee

Civil asset forfeiture occurs when the government confiscates a citizen’s cash or property without charging them with a crime. Both State and Federal law allow for law enforcement to seize the property of citizens at their whim even when the owner of the property has committed no crime. The only requirement is that the police feel like the property (or cash) may have been, or will be at some time in the future, in the proximity of drugs or a crime. There are over 42 States, including Virginia, that allow for civil forfeiture.

In the last decade, over 2.5 billion dollars in cash has been seized by the government from citizens where the citizen was never charged with a crime. In 2012 the government seized over 4.6 billion dollars from citizens. There have been over 60,000 incidents where a police officer has seized cash from civilians on the road and the civilian was never charged with a crime. The State of Virginia seizes, on average, 7.2 million dollars per year from its citizens. In 2013, under “Federal Equitable Sharing”, police departments were able to keep 657 million dollars in cash and property that they seized from citizens. Most of this seized money was used to purchase guns, equipment, surveillance equipment, armor and armored vehicles. Hundreds of police forces make up over 20% of their budgets through civil forfeitures.

Civil Asset forfeiture is an old concept that dates back to English common law, but was given real teeth by the Comprehensive Drug Abuse Prevention and Control Act of 1970. The Drug Prevention Act was narrow in scope, dealing with mainly drugs, drug making equipment and automobiles transporting drugs, but was expanded over time to include almost any valuable item a citizen may own. Civil asset forfeiture is not the same as criminal asset forfeiture. With criminal asset forfeiture, the State must find the defendant guilty of a crime before they can keep the defendant’s property. With civil asset forfeiture, typically, the citizen is never even charged or given a day in court. If there is a trial, the burden of proof is essentially shifted to the citizen to prove that the property was not in close proximity to a crime. Eighty percent of civil forfeitures never result in a criminal prosecution.

Civil asset forfeitures normally take place when the government claims a person has property that has somehow aided in the commission of a crime, even if the owner of the property was completely unaware of the so-called crime. For example if even a small amount of drugs are found on your property (car, boat, and house), even if those drugs do not belong to you, and even if you were completely unaware of there presence, the government can seize your property. The government only needs to show probable cause, the lowest level of suspicion, to seize your property. For you to retrieve your property you need to show that the property was not involved in criminal conduct by a preponderance of the evidence. The problem here is the government can take your property on nothing more than a whim of suspicion, but you have to prove your case in court by a preponderance of the evidence, not to mention incur the legal fees to go to trial.

The Comprehensive Crime Control Act of 1984 greatly expanded the government’s ability to seize property through forfeiture. The Crime Control Act allowed police departments to keep the money that they seized, essentially motivating them to seize more; and it allowed the police departments to federalize the seized money, allowing the police department to keep a higher percentage than State law would allow. By allowing the police department to keep up to 80% of the cash and property they seized it incentivized the police to increases the amount of civil forfeitures they pursue. It even caused the police to shift their tactics on who they targeted for arrest. Police started setting up stings where they offered to sell the drugs so that the buyers would come to the sting with cash that could be seized by the police, rather than setting up stings where the criminal would be bringing drugs to the sting.

In Tina B. Bennis, Petitioner v. Michigan the Court ruled that Michigan was well within their rights to seize the petitioners car and not return it when they found her husband soliciting a prostitute from the car. The High Court found that even though Mrs. Bennis did not authorize, or even know her husband was soliciting a prostitute from her car, that the State could seize her car pursuant to civil forfeiture statutes. It seems the State’s interest in preventing prostitution by seizing the cars that may have been in proximity of the prostitution outweighs the innocent owner’s right to retain their automobile.

In Calero-Toledo v. Pearson Yacht Leasing Co the Supreme Court ruled that a Yacht had been lawfully seized by the government when a person onboard the yacht (not the owner) was found with one marijuana cigarette. In this case the evidence was clear that the owner was neither on the vessel at the time or aware of the illegal drug. The Supreme Court ruled that the government could keep the seized yacht even though the owner had committed no crime and was unaware that a passenger on the ship had an illegal drug.

In both of the Supreme Court cases the Court ruled that the government had a compelling state interest in preventing crime, and the defendants, while completely innocent, should loose their valuable property because the property was “guilty” of aiding a crime. Because it was property being “prosecuted,” not a citizen, the State only had to meet the most minimal standards and thresholds to keep the property. It appears the Court believes that by seizing the property of innocent people it would send a message to the public to not allow their property to be involved in crime.

Of course by this logic the government could seize a multi-million dollar hotel if there were a single prostitute in one of the rooms. The natural conclusion using this logic would be that the government could seize an entire 100 million dollar cruise ship if only one passenger were able to sneak on single marijuana joint. This logic has been extended to police officers to allow them to seize cash from people on the street if they think the citizen may use the money to buy drugs or other illegal contraband. The idea that an innocent citizen can prevent another person from using their property in the commission of a crime is preposterous at best. A restaurant owner can not guarantee a customer will not bring a joint onto the premises anymore than a wife can guarantee the State her husband will not commit a crime outside her presence. To seize these innocent peoples property because it happened to be in close proximity to a crime without their knowledge or consent is outrageous.

Any liberty minded person would recognize that seizing property and cash from citizens without the benefit of an arrest or criminal conviction is un-American and wrong. In Virginia, Delegate Mark Cole has proposed a legislative amendment that may curb civil forfeiture. House Bill 1287 was pre-filed on September 23, 2014 and is offered on January 14, 2015. HB 1287 states, in part, “Any action of forfeiture shall be stayed until conviction, and any property eligible for forfeiture under the provisions of any statute shall be forfeited only upon entry of a final judgment of conviction for an offense listed in such statute and exhaustion of all appeals. If no such judgment is entered, all property seized shall be released from seizure.”

I salute Virginia State Delegate Mark Cole for proposing this bill; however, I am not convinced it will completely eliminate civil forfeitures because State law enforcement have the right to federalize their forfeitures under the “federal equitable sharing” program established in the 1984 Comprehensive Crime Control Act. Under the federal “Equitable Sharing Program” local law enforcement can share in the forfeiture if it is part of a joint task force with a federal agency. I am certain Virginia law enforcement will attempt use this federal law to get around any State law that cuts into their profits. Despite misguided federal law, there is no doubt that the Bill proposed by Mark Cole is a strong step in the right direction.

I may disagree with Delegate Mark Cole on many of the votes he has cast as a State Delegate, however, today, on this issue; I commend Delegate Cole on defending personal liberty. I hope the rest of Virginia’s lawmakers have the courage to pass this bill that would reduce civil forfeitures and strengthen individual rights. However, with an average 7.2 million dollars per year at stake, I’m not convinced the Virginia lawmakers will have the courage to stand up for individual liberty.

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