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Use of Civil Asset Forfeiture Laws Questioned

Posted by Ben Sessions | Sep 28, 2014 | 0 Comments

In connection with our criminal defense practice and, particularly drug possession and distribution defense work, we frequently help clients in the defense of civil forfeiture cases. If you need help in the defense of a civil forfeiture case, contact The Sessions Law Firm today.

ANOTHER CONSERVATIVE COMMENTATOR: USE OF CIVIL ASSET FORFEITURE LAWS QUESTIONED

The abuse and misuse of civil asset forfeiture laws has made for some strange bedfellows. Conservative commentators that are typically the last people to come to the aid of criminal defendant and, particularly, those even remotely connected with illegal drug activity are increasingly finding themselves aligned with such people when it comes to views on civil asset forfeiture laws. Civil asset forfeiture laws and the prevalence of their use are being increasingly questioned. Below is an article by George Leef that was published in Forbes magazine, which typifies some of the popular commentary on civil asset forfeiture laws as they are currently used.

If you are facing an asset forfeiture in Georgia, contact The Sessions Law Firm today.

http://www.forbes.com/sites/georgeleef/2014/09/12/time-for-civil-asset-forfeiture-laws-to-meet-the-same-fate-as-jim-crow/

TIME FOR CIVIL ASSET FORFEITURE LAWS TO MEET THE SAME FATE AS JIM CROW

One of the greatest political philosophers, Frederic Bastiat, wrote that the law should exist to protect life, liberty, and property, but unfortunately is often perverted into a means of “legal plunder.” In other words, the law is used to legitimize the use of force to deprive people of their wealth.

A recent Washington Post article Stop and Seize shines a light on actions by police that perfectly exemplify the sort of abuse Monsieur Bastiat warned about. In it, readers learn how police forces across the country exploit civil asset forfeiture laws to deprive hapless, innocent people of cash and other property.

What civil asset forfeiture amounts to is seizing property from someone on suspicion that it was in some way connected with a crime. The individual need not ever be convicted or even charged, but won't get the property back without going through legal procedures which place the burden of proving innocence on him. Just to cite one of many cases given in the Post's story, consider the plight of Mandrel Stuart,

“a 35-year old African American owner of a small barbecue restaurant in Staunton, VA was stunned when police took $17,550 from him during a stop in 2012 for a minor traffic infraction on I-66 in Fairfax. He rejected a settlement with the government for half of his money and demanded a jury trial. He eventually got his money back, but lost his business because he didn't have the cash to pay his overhead.”

Even in the few states where state law effectively shields citizens against expropriation (and if you're wondering, the Institute for Justice's study Policing for Profit, grades the states on that; only Maine, North Dakota, and Vermont are very good), police can avail themselves of a federal program known as Equitable Sharing.

Between the federal law and state laws that make forfeiture easy and lucrative, we have a horrible incentive for government officials (and not just police) to enrich themselves at the expense of honest people who can't fight the system.

Officials say that civil asset forfeitures help them fight crime and the drug war in particular. Whether or not that is true is beside the point when innocent people are deprived of property without due process of law. Those who enforce the law must be constrained by the rule of law.

But are the seizures under civil asset forfeiture laws a violation of due process? That was put before the Supreme Court in the 1996 case Bennis v. Michigan.That case arose when John Bennis was arrested for a tryst with a prostitute in a car that was jointly owned with his wife, Tina. Contending that the car was “guilty” too, the police seized it. Was Tina Bennis entitled to get her car back, or had the state justly deprived of her property?

By 5-4, the Court held that the seizure was not unconstitutional; that taking away Tina's right to the vehicle did not violate her rights under the 5th and 14thAmendments. Chief Justice Rehnquist's majority opinion rested on the claimed fact that at the time the Constitution was adopted, civil asset forfeiture laws were in existence, and therefore they must not be permissible today. Justices Stevens, Kennedy, Breyer, and Souter dissented, arguing that the majority's history was off point and the palpable injustice of taking Mrs. Bennis' car from her because her husband had used it in his misdemeanor was constitutionally intolerable.

In this sharp analysis of Bennis, Professors Don Boudreaux and Adam Pritchard pointed out that in our early history, civil asset forfeiture had only been used when it was unlikely that the wrongdoer could ever be brought into a court's jurisdiction. “Not until Prohibition – long after the Constitution was adopted – did government generally wield civil forfeiture against people who could easily be criminally prosecuted,” they write. The case, in short, was wrongly decided.

We might think of Bennis as the conservatives' Kelo. Kelo v. New London was the abominable decision in which the liberal bloc (led by Justice Stevens) gave the green light to governments to use eminent domain for their purposes, transferring property from the existing owner to some other owner who would, presumably, use it for a “better” use. (That is to say, one that would bring in more tax revenue for the politicians.) Bennis was an abominable decision by the conservative bloc (although joined by Justice Ginsburg), giving the green light to government officials to squeeze lots of wealth out of innocent people to pad their budgets. Bad precedents both.

One of the worst cities for civil asset forfeiture is Philadelphia, where, as we read in this Philadelphia Inquirer story, officials file thousands of forfeiture petitions yearly, confiscating some $6 million in cash and property. One of the disturbing cases related in the piece is that of the Sourovelis family. They were evicted from their home because their son had been arrested for selling $40 worth of illegal drugs outside of the house. But because he lived there, the house was fair game for seizure. It's Bennis on steroids.

Mr. and Mrs. Sourovelis have been through a regulatory nightmare trying to get their property back. That has entailed numerous trips to a “courtroom” where no independent judge is in charge, but only city prosecutors.

Years ago, a state judge in Pennsylvania called the civil asset forfeiture process there “state-sanctioned theft” and it has steadily grown worse. This summer, the Institute for Justice filed a class-action suit in federal court seeking to end Philadelphia's abusive and unfair system. (You can read about the case and its background, including details about the seizure of the Sourovelis home, atEndForfeiture.com.)

With the generally pro-government power Washington Post and the consistently pro-liberty Institute for Justice both attacking civil asset forfeiture, perhaps we're at a turning point. With any luck, the Philadelphia suit or another challenging civil asset forfeiture will eventually wind up on the Supreme Court's docket, giving the justices an opportunity to overrule Bennis and restore the integrity of the Fifth Amendment.

Also, bills have been introduced in Congress to defang the federal government's civil asset forfeiture viper, Senator Paul's S.2644 and Representative Walberg'sH.R. 5212. Whether either bill will even get a committee hearing, however, is doubtful.

No American who hasn't been convicted of a crime should have property seized, and whatever fines or property confiscation that attend the crime, the proceeds should either go toward restitution for the victim or into the treasury – not into the budgets of law enforcement agencies. The law needs to be changed before any more people are struck by legal lightning.

Putting an end to this blatant legal plunder ought to be as important a civil rights issue today as doing away with segregation was in the middle of the 20thcentury. America stopped letting government officials discriminate against people on account of their race decades ago. Civil asset forfeiture is race-neutral but no less an affront to our sense of justice than the Jim Crow laws were.

The battle against civil asset forfeiture should be a major national issue. Will Democrats who always crow about being on the side of “the little guy” support legislation to end an abuse that mostly hurts “little guys”? Will Republicans who proclaim their zeal for “getting government off our backs” support legislation that would do that for the many people victimized by civil asset forfeiture?

Or will both parties stick with a powerful law enforcement lobby that likes the profitable status quo?

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115 Martin Luther King, Jr., Dr., SW, #410
Atlanta, Georgia 30303
Phone: (470) 225-7710

About the Author

Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.

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