DOJ Forfeiture Directive Gives Local Law Enforcement A Chance To Dodge State Reform Efforts

from the Sessions-taking-it-back-to-the-old-school-cause-he's-an-old-fool dept

As threatened during comments to an association of district attorneys, Attorney General Jeff Sessions is bringing back asset forfeiture. Specifically, Sessions is loosening the restrictions placed on federal adoption of local seizures by Eric Holder during the last years of the Obama presidency. Holder's directive prevented local agencies from routing cash or vehicle seizures through the feds to dodge local rules. That's all over now. An order [PDF] and directive [PDF] issued by the DOJ are welcoming local law enforcement agencies to once again skirt restrictive state forfeiture laws by asking the DOJ to "adopt" their seizures.

On July 19, 2017, the Attorney General issued an Order allowing Department of Justice components and agencies to forfeit assets seized by state or local law enforcement (referred to in the order as "federal adoptions"). Under the Attorney General's Order, federal adoption of all types of assets seized lawfully by state or local law enforcement under their respective state laws is authorized whenever the conduct giving rise to the seizure violates federal law.

"Conduct giving rise to the seizure" almost makes it sound as though the federal government is limiting this to criminal asset forfeiture, which comes as the result of a conviction. Nothing could be further from the truth. In practical terms, this allows cops to say they smell the odor of drugs (or ask their dog's opinion) before hauling away an uncharged citizen's personal effects -- mainly cash, since it's easy to carry and difficult to prove its legal origin.

Multiple states have passed legislation curbing civil asset forfeiture. Fourteen states now require convictions before assets can be forfeited. This will no longer be the case. The DOJ is giving local agencies a way to avoid these restrictions by stating anything considered a federal crime (like drug trafficking) can be used as an escape hatch to ensure these agencies keep at least part of the property they've taken.

Sessions is promising this won't be abused. Given Sessions' comments on civil forfeiture, it's hard to imagine a case where he'd consider a seizure abusive, but there is a limited safeguard built into the new directive.

Adoptions of cash in amounts equal to or less than $10,000 may require additional safeguards. Those adoptions will be permissible where the seizure was conducted: (1) pursuant to a state warrant, (2) incident to arrest for an offense relevant to the forfeiture, (3) at the same time as a seizure of contraband relevant to the forfeiture, or (4) where the owner or person from whom the property is seized makes admissions regarding the criminally derived nature of the property. If a federal agency seeks to adopt cash equal to or less than $10,000 and none of these safeguards is present, then the agency may proceed with the adoption only if the U.S. Attorney's Office first concurs.

I wouldn't read too much into this provision. For starters, it includes the word "may" in the first sentence, which means the DOJ will be able to waive these restrictions whenever it feels like it. Seizures can still be effected "incident to an arrest," which further undermines the conviction requirements put in place by fourteen states.

Forfeitures under $10,000 need more protection, not another outlet for abuse disguised as a "safeguard." Most cash seizures are under $10,000. Forfeiture reform laws tend to target those, as they're most often abused. AG Sessions is leaving it up to US Attorneys' offices to make the final determination.

Those over $10,000 tend not to be as much of a problem, but now there won't be any close cases. Federal adoption is pretty much guaranteed, which will encourage law enforcement to spend more time looking for expensive seizables than real criminal activity.

Then there's this statement, made by Sessions in his announcement of the resumption of federal indifference to individual property rights.

Our law enforcement officers do an incredible job. In fact, over the last decade, four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court.

This goes past simple disingenuousness into the land of deliberate obtuseness. The absence of challenges is not the evidence of minimal forfeiture abuse. Fighting forfeiture is expensive and time-consuming. In most cases, it's futile. This is why so many seizures are $1,000 or less. The lower the dollar amount, the less likely it is someone will fight to get it back. As was pointed out by John Jackson on Twitter, this is like saying all fatal shootings by police officers are justified because not a single victim has filed a sustained complaint.

Sessions' forfeiture move isn't exactly being greeted with applause by members of the president's party. Sen. Mike Lee and Rep. Darrell Issa have already made statements condemning the loosening of federal restrictions. These reactions hew closer to the Republican party line -- small government, less regulation. For some reason, though, many conservatives seem to think expansions of government power and regulation is just fine when it comes to law enforcement or national security. This is the only reason the president's AG pick isn't facing more criticism for overriding states' reform efforts.

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Filed Under: civil asset forfeiture, doj, forfeiture, jeff sessions, law enforcement