Civil asset forfeiture used by some law enforcement ‘as a major revenue source’

Civil asset forfeiture is something many people didn’t know much about prior to the “war on drugs,” which is when a lot of changes happened. Effectively, entire law enforcement departments, — federal, state, and local — were partially, if not entirely, funded by seized assets from alleged criminals.

Brian Kelly, an economics professor at Seattle University, has studied asset forfeiture more than most, and joined KIRO Nights last week.

Timbs vs. Indiana

One story that caught show host Mike Lewis’ eye was the case of Timbs vs Indiana. A Land Rover had been possessed by authorities for eight years after it had been seized in asset forfeiture, until a Supreme Court decision led to Mr. Timbs getting his car back.

“The conviction of the individual was for a drug offense, and the maximum fine of the drug offense was … something like $5,000. It was a very minor drug offense,” Kelly explained. “But the police seized the Land Rover because the Land Rover had been used to carry the drugs, I think, with Mr. Timbs, and therefore was an instrumentality of the crime.”

The police seized the Land Rover, kept it, forfeited it, and the value of the car exceeded the maximum possible fine for the offense, Kelly said. So Mr. Timbs sued to get his Land Rover back.

“That court case was taken up by The Institute for Justice, which has been fighting the forfeiture battles for about at least a decade now,” Kelly said. “And eventually they argued before the Supreme Court and won, and the basis for the victory was the Eighth Amendment prohibition on excessive fines.”

This is an important precedent case not just for forfeiture, but the court decided that the prescription against federal excessive fines also applies to states and localities.

The seizure of vehicles is quite common in forfeiture. If there’s a small amount of drugs, for example, the cars will be seized, and even if they aren’t forfeited, they’re often damaged when returned to the owner.

“The owners often have to pay storage fees for the vehicles during the period of the seizure until their return,” he said. “The data I’ve looked at shows that vehicles lose about half their value while in police custody during a forfeiture proceeding, even if the owner eventually gets the vehicle back.”

Asset forfeiture reform

From a reform standpoint, asset forfeiture predates a lot of the issues we’re going through right now. There have been movements to curb asset forfeiture in states after it was seemingly overused and misapplied. While there has been push-back at the federal level, Kelly acknowledged that the focus has been on the states and primarily on civil asset forfeiture, to curb some of the abuses.

“An important element for your listeners to understand is under civil asset forfeiture, the owner of the asset does not need to be convicted of a crime for the asset to be forfeited, and in fact doesn’t have to be charged with a crime,” Kelly explained. “And so many of the more egregious cases are highway stops where cash is seized.”

In those cases, the owner has to sign away the cash or face the threat of being charged with a crime and the asset is forfeited.

“What happens to it is, when handled properly, it goes into police custody,” he said. “Same as let’s say, evidence would go into police custody. Then, if the owner doesn’t formally challenge the seizure of the asset in court, that’s a purely administrative proceeding, and the asset is then forfeited to the government.”

Often, Kelly said, this means it’s forfeited to the police agency that seized the asset.

“If the owner does challenge the seizure, well then it goes to court,” Kelly said. “But the standard of proof for the state to keep the asset isn’t beyond a reasonable doubt. It’s preponderance of the evidence or sometimes clear and convincing, and that’s a much lower standard.”

Staking a claim to the asset

An odd aspect of civil asset forfeiture, Kelly explained, is that the owner who’s attempting to get their asset back has the status of a third party intervener.

“The case is actually against the asset. The state is charging,” he said. “You’ll see titles of cases like State of Washington versus $33,000. The asset is the defendant, and the owner is a third party intervener trying to stake a claim to the asset.”

Legally, this means that the standard of proof for the state to keep the asset is only a preponderance of the evidence, as Kelly mentioned. And it shifts the burden in some ways.

“There’s very, very few lawyers around who understand asset forfeiture and can represent someone successfully in these cases,” Kelly said. “And the status of a third party intervener means you have no more right to that asset than the state does.”

Seized assets as revenue

“Some of the most egregious stories have detailed how police departments will treat [assets] as a major revenue source,” Kelly said.

There was a town in Texas featured in The New Yorker eight years ago that did exactly that.

“A significant highway went through the town,” Kelly explained. “[Police] weren’t stopping locals, and this is really important, often the police agencies are targeting people passing through. By doing so, … often, if they wish to challenge the seizure, [they] have to rearrange their lives to appear in local court, at some date, somewhere in the future. They are not on their home turf. They aren’t certain what’s going on, so forth and so forth.”

There has been genuine reform in the states, but Kelly says it doesn’t stop forfeiture abuse. It does, however, make abuse less common.

“What happens is, unfortunately, police agencies get a culture oriented around this sometimes, and they feel that the assets they seize belong to them,” Kelly said. “They view them as budgetary supplements, … and it could be very hard to break those habits once they’re formed.”

Additionally, Kelly says some drug task forces will be largely self-sufficient due to forfeiture actions.

“A major element of civilian control, of police forces, is budgetary,” Kelly said. “We hear these days the idea of ‘defund the police.’ If a task force is self-sustaining by the assets that it seizes, then we don’t have that civilian control anymore.”

State versus federal forfeitures

In Washington state, Kelly says we’re pretty good compared to other states. He’s heard very few local, abusive stories.

“Agencies are supposed to report the value of their seizures to the state, and then the state takes a cut actually of that, I think it’s 10%. That sounds kind of, so what? But the problem with asset forfeiture in many states is nobody has any idea of how frequent it is,” he said. “Local police departments in many states do not have to report the seizures, the forfeitures.”

Washington Legislature has taken up reform efforts, Kelly said, aimed at developing better information about forfeitures. But, there are certainly abuses statewide taking advantage of the lack of reporting.

“First, let me make a quick distinction of between the forfeitures where the federal government is involved, and that’s a lot of them, versus those that are purely state or local,” Kelly said. “And the good thing about the federal involvement is we have better data.”

Starting in about 2000 until now, Kelly said, in the Department of Justice’s asset forfeiture fund there have been over one million separate assets seized, valued at about $40 billion.

As far as what’s happening at the state and local levels, Kelly says he’s the only person that’s made that estimate as far as he knows, and thinks it’s more than the federal amounts.

“So it’s pretty big dollars, however you slice it,” Kelly said. “Now, are going to be abuses? If you have a 1,000,000 assets seized just at the federal level, and probably more at state and local, yeah, there’s going to be abuses.”

“And in particular, if you don’t have to track the assets, if the state doesn’t require it or the local police don’t have a culture of doing that, well, then the funds start becoming pretty fluid,” Kelly added. “If you seize cash and you want to spend the cash — and there’s all sorts of stories out there — if you want to spend the cash on Corvettes for everyone in the Police Department, there’s not many controls on it.”

If it’s a joint operation and the feds are involved, there are more controls, but they’re still used for law enforcement, Kelly added.

“And they’re supplements to normal budgets. They don’t go to salaries and things like that,” he said. “So police agencies like these funds; I don’t blame them. And abuses have been documented over and again.”

That being said, Kelly stressed most police agencies are honest in their reporting.

“But some aren’t, and there’s many, many stories out there about that.”

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