Civil Asset Forfeiture is one of the most flagrantly unconstitutional government practices occurring in the United States today. Under its auspices, law enforcement agencies are permitted to seize cash, cars, homes, businesses and other property from innocent people who have been neither charged nor convicted of any underlying crime.
The seized property is then sold, with most of the proceeds put to use by the agency that took it. Put more bluntly, law enforcement gets to profit from its policing. All of this occurs despite the fact that the Constitution clearly forbids both the federal government and the states from depriving any person of life, liberty or property — without due process of law. If you haven’t heard about this, don’t feel alone.
Let’s say you are pulled over for a routine traffic stop and, with or without cause, the officer decides you could be a bad person potentially guilty of a crime. He or she can order you to get out of your car, place you in the squad car and proceed to ask you any number of questions. Further, he or she can request a warrant to search your vehicle and confiscate anything that might be in question. Getting those assets back can be very expensive and often is impossible.
How did we get here? In 1996, the Supreme Court issued its far-reaching decision in the case of Bennis v. Michigan. At issue was the seizure of a Pontiac automobile driven by a man named John Bennis, who was arrested in the car with a prostitute and later convicted of gross indecency.
John’s wife, Tina, was the joint owner of that car and understandably objected when the state seized it for a crime that she did not commit. So, she went to court to stop the forfeiture proceedings, arguing that she was perfectly innocent — and that the state had deprived her of her interest in the car — without even pretending to offer any sort of due process.
Unfortunately, she lost the case. Writing for the majority, Chief Justice William Rehnquist rubber-stamped the entire civil asset forfeiture racket. He wrote, “An owner’s interest in property may be forfeited by reason of the use to which the property is put, even though the owner did not know that it was to be put to such use.” So much for the Due Process Clause.
Predictably, civil asset forfeiture abuse increased in the years following that permissive decision. The most shocking part of this story is that most of the money generated by the seized assets goes right into the coffers of the law enforcement agencies that confiscated it.
And we’re not talking chump change here. According to the Justice Department, the federal government alone (not counting the states) collected $4.5 billion worth of confiscations in 2014 versus $93.7 million in 1986.
Here’s another example. In 2013, a man named James Leonard was stopped by Texas police for speeding on US Highway 59. The police reportedly obtained a search warrant for his car and found a safe in the trunk containing $201,100 in cash and a bill of sale for a house in Pennsylvania. Leonard insisted that the safe belonged to his mother, Lisa Olivia Leonard, and contained her proceeds from a house that she had sold. Lisa Olivia Leonard told the authorities the same thing.
But the police had other ideas. According to the affidavit filed by Officer John Shaver, “In my experience, carrying large amounts of U.S. [cash] is commonly associated with the illegal narcotics trade… Highway 59 is a main thoroughfare for the transport of U.S. currency and narcotics in the illegal drug trade.” In other words, the cops declared the $201,100 to be drug money and seized it as “contraband” under the state’s sweeping civil asset forfeiture laws. No drug charges were filed in this matter.
Much like Tina Bennis before her, Lisa Olivia Leonard promptly went to court seeking the return of her property. But she lost too. Earlier this year, the Supreme Court declined to take up her case for reasons that are not entirely clear.
Yet at the time of that decision, Supreme Court Justice Clarence Thomas made it clear that when the right case does come along, he will gladly deliver the judicial reversal that civil asset forfeiture so rightly deserves. Here’s hoping the right case arrives at SCOTUS sooner rather than later.
Fortunately, there is some good news, if we can call it that. Since 2014, nearly 20 states and the District of Columbia have enacted laws limiting civil asset forfeiture. Several other states are reportedly considering similar legislation.
But what is really needed to end this travesty once and for all is for the Supreme Court to overturn Bennis v. Michigan. It can’t happen soon enough!