(Originally published at Dan Wang’s blog.)

If the police suspect that your property has been connected with criminal activity then it can seize that property without a warrant and without a trial.

That’s called civil asset forfeiture, or just civil forfeiture. It’s based on the legal fiction that property can be criminally guilty: Cash, cars, and even houses can be seized because they may have been connected in any way to criminal activity.

The police don’t need to wait for a conviction to initiate forfeiture. Officers can seize the assets if the owner was never charged with a crime in the first place, and keep the assets even if the owner is acquitted of any crimes.

Seized assets become property of the state. Cash is distributed between federal, state, and local law enforcement agencies; if the seized property is a car or a house, it gets auctioned and the revenues get similarly distributed. With billions seized every year, revenues from civil forfeiture have become a substantial part of law enforcement budgets, used to pay for not only general operations but also first-class flights and campaign re-election ads of the agents responsible for seizure.

Civil forfeiture was authorized by Congress in the 18th century as a tool against pirates. It has drifted from its original use to become one of the primary weapons of law enforcement in the war on drugs. Civil forfeiture is a lucrative practice used to target not only criminals but also the innocent poor, who most lack recourse to recover their assets. This essay presents the proceedings of civil forfeiture, its legal basis, a few of its victims, and some of the ways that its revenues are spent.

When can the police initiate forfeiture?

Thought it varies state by state, standards for initiating forfeiture are in general low.

Property has no presumption of innocence and no right to attorney. In most states, police are empowered to seize without seeking a warrant from a neutral magistrate and without presenting evidence in court. That means that police can confiscate property (which most often means cash, cars, firearms, and phones) if they merely suspect that the property was put to criminal use or came to be possessed as a result of a crime.

Over a routine traffic stop officers have the grounds to seize all the cash on you if they allege that the cash was made from trafficking drugs, even if no drugs are found and they choose not to arrest you for a crime.

Police in most states need only probable cause to seize an asset. There is no requirement to prove beyond a reasonable doubt that the asset was instrumental to criminal activity. In effect the owner becomes a third-party claimant whose guilt or innocence is not directly relevant in the government’s suit against a property.

How can the victims of civil forfeiture recover their assets?

To challenge the seizure of his property, it is up to the owner to deliver a “preponderance of evidence” before an administrative committee or a court to recover his asset.

In certain states to initiate a forfeiture proceeding you must pay a bond for the right to contest the seizure. The bond is formally known as a “penal sum,” and if you don’t pay it within a window of time then the police gets to automatically keep the seized property.

Forfeiture amounts to a lawsuit filed against a piece of property. So court cases in which owners try to recover their property often carry improbable names like United States v. $10,500 or 1958 Plymouth Sedan v. Pennsylvania.

It is in general difficult to recover a piece of property once it has been seized. Consider an example, the case of D.C. resident Nelly Moreira.

Nelly Moreira, D.C.

Moreira relied on her 2005 Honda Accord to drive from her morning job cleaning the Trinity Washington University, and her evening job cleaning the Treasury Department.

In 2012 her son was driving that car when he was pulled over for a minor traffic violation. When police patted him down, they found a handgun, which was sufficient reason for arresting him and seizing his car.

Moreira was desperate to recover the car so that she could continue driving to work. She borrowed cash from family and friends to pay the $1,200 penal sum. She had expected that paying the bond would entitle her to to recover her car; instead, it only enabled her to initiate a slow-moving case to challenge the seizure. Over the months that she waited for a trial, her Honda sat in a city lot, unused, while she struggled to get by while continuing to make her monthly car payments. It was only a year later she won back her car only after the intervention of the Public Defender Service for the District of Columbia.

What is the legal basis for civil forfeiture?

Civil forfeiture in America has its roots in admiralty law; the first U.S. Congress passed forfeiture statutes to enforce customs and to combat piracy. Instead of bringing charges against a pirate, the state could instead prosecute a vessel and target it for forfeiture.

With a few exceptions (notably during the Civil War and Prohibition), forfeiture laid dormant until the 1980s, when the government ramped up the war on drugs. Traditionally the proceeds from forfeiture flowed to the Treasury, but in 1984 Congress permitted agencies responsible for the seizure to keep a significant fraction of the proceeds. Law enforcement agencies would realize direct and immediate revenues if it seized an asset.

Civil forfeiture has been extensively litigated, including at the Supreme Court. The practice has been strengthened over cases like these:

The court in 1974 held in Calero-Toledo v. Pearson Yacht Leasing Company that an innocent and non-negligent owner of property can face seizure. In the facts of the case, a yacht-leasing company faced the seizure of one of its boats after guests who rented it were arrested for smoking marijuana. The court ruled that the company could face forfeiture even if it had no knowledge that guests may behave illegally.

The “innocent owner” defense was further weakened in the 1995 case Bennis v. Michigan. Tina Bennis was the co-owner of a car with her husband. One night her husband hailed a prostitute into the car, and was seen by police who arrested him and seized the car. Tina appealed to the Fifth and Fourteenth Amendments to protest that she should not lose the property because she was an innocent co-owner. The Supreme Court disagreed.

Congress passed the Civil Asset Forfeiture Reform Act in 2000 to rein in the excesses of forfeiture by introducing higher standards for initiating seizure. But in practice little has changed with the proceedings of civil forfeiture.

Some of the victims of civil forfeiture

There are plenty of high-profile cases of police seizing the assets of drug lords and organized crime bosses. But civil forfeiture has also made victims of many non-criminals, in particular the inner-city poor. The loss of an asset is especially devastating to the poor, who find it more difficult to navigate through vast bureaucracies.

Here is a selection of incidents in which the police aggressively pursued the assets of people without seeking charges agains the people themselves.

Leon, 70 and being treated for pancreatic cancer, and Mary Adams, 68, have lived in their West Philadelphia home since 1966. In 2012 their son Leon Jr. was arrested for selling twenty dollars’ worth of marijuana on the front porch of that house. The police, accompanied by a SWAT team, soon arrived to seize the house on the basis that it was used to facilitate a drug transaction. They intended to sell the house at a city auction, with the revenue split between the police department and the office of the district attorney’s, which authorized the raid. Over the past two years Mary has been pre-occupied by two things: Taking care of her husband, and fighting in court to keep their house.

In 2005 Javier Gonzalez was pulled over on U.S. Highway 281 in Texas. He was driving to visit his dying aunt, and carried $10,000 in cash so that he could buy a coffin and a headstone. The police searched the car and discovered the cash, but discovered no evidence of drugs or contraband. Then they offered him a choice: Sign away legal claims to the cash or face charges for money laundering and risk losing the car as well. Gonzalez signed away the cash.

Terry Dehko and his daughter run a grocery store in Fraser, Michigan. On a regular basis they take money out of their till and deposit it into a bank across the street; deposits are almost always less than $10,000, which is the limit covered by the insurance company. In 2013 the government seized the sum of their deposits, over $35,000; they alleged that the Dehkos structured the deposits to avoid the $10,000 threshold that would trigger a report to the I.R.S. The state offered no evidence for actual wrongdoing.

Russ Caswell

The Caswell family in Massachusetts has run a low-budget motel for over 60 years. About once a year between 2001 to 2008 the motel has been the target of a drug investigation because a guest would use it as a site for drug activities. The value of the motel has been appraised at over $1 million, and in 2012 the state attempted to seize to auction it off. The Caswells were not themselves charged for criminal activity.

Could the police be using civil forfeiture for generating revenues? It might seem that way if you examine the behavior of officers along Interstate 40 through Tennessee. It’s commonly believed that drugs come from the eastbound side of Interstate 40, while money flows back through the westbound side. In a local news investigation, police have directed the overwhelming majority of their attention to patrol the westbound side, allowing the drugs to flow into the city, and get sold for cash, which would be more useful to the department when confiscated.

How are the proceeds of civil forfeiture spent?

Revenue from civil forfeiture is used by law enforcement agencies to fund general operations, which includes purchasing equipment, paying salaries, and funding sting operations.

This revenue has become an integral part of law enforcement budgets. In 1980, the Attorney General Richard Thornburgh proclaimed that “It’s now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation.”

Besides funding operations, the revenues from civil forfeiture have been used on causes that less-than-directly related to enforcement. Some of these expenditures include:

Bomber jackets for the Colorado State Patrol

Running gear for the police department in Austin, Texas.

Football tickets for the district attorney’s office in Fulton County, Georgia.

TV commercials for the district attorney’s re-election campaign in Webb County, Texas.

$10,000-worth of Gatorade for the police department in Pittsburgh.

Conclusion

Civil forfeiture has been an important tool against major criminals. But it’s also used extensively on innocent property owners as well as on the poor, whose loses mean the most and who have the least means to defend themselves.

The practice has turned police raids into a source of profit for law enforcement agencies. The distorted incentives from forfeiture have been recognized as early as in 1992, when police shot and killed a millionaire named Donald Scott. Civil liberties advocates then cried foul, alleging that police were searching for marijuana plants (which were never found) as a pretext to seize Scott’s two-hundred-acre Malibu ranch.

In the meantime, ordinary people continue to lose their property when police can justify a hint of suspicion that it has been instrumental to committing a crime.