Police Can Just Take Your Money, Car and Other Property - and Good Luck Getting It Back

Alda Gentile was driving back home to New York from Florida, after having viewed condos with her son and grandson ahead of a potential move. She had $11,000 in cash with her, which she brought in order to make a deposit on her new place. As she drove through Georgia, she was stopped for speeding, and upon hearing that she was carrying such a large sum of cash (which is legal, by the way), state troopers questioned her on the side of the road for a total of six hours. In the end she was sent on her way—without the cash, which the officers kept.

Gentile’s case is an extreme example, but such occurrences happen on a smaller, broader scale across the country every year. Civil asset forfeiture is one of those arcane statutes you never hear about until it screws you. It’s a legal fiction spun up hundreds of years ago to give the state the power to convict a person’s property of a crime, or at least, implicate its involvement in the committing of a crime. When that happened, the property was to be legally seized by the state.

That made sense in the 18th century, when the government invoked the law to legally claim loot left behind by pirates who escaped into the blue horizon of the Atlantic. Today, however, the police are the ones who confiscate property, and they’re usually the ones who end up keeping it. The most ridiculous thing about civil asset forfeiture’s modern form is that police use it to confiscate a person’s things even if that person is never convicted of, or even charged with, a crime.

The statute is portrayed by law enforcement as a way of crippling the narcotics trade by letting agencies keep pieces of the infrastructure of large-scale drug operations — and sometimes, civil asset forfeiture does that. But more often than not, it’s used by law enforcement to take from ordinary people who’ve committed no crime. The results are precincts made richer by hundreds of thousands or even millions of dollars, and insidious incentives for police to apprehend people not in the interest of public welfare but out of something like the profit motive.

No matter one’s political inclinations, most can agree that civil asset forfeiture is basically practiced unfairly. Its fiercest and most vocal opponents are libertarians and other limited government advocates, who string it up as a sinister example of a tyrannical state voraciously plundering its people. This author is less conspiratorial; civil asset forfeiture is simply a dumb, archaic policy that’s still around because not enough people have called for its end. Dick Carpenter, director of strategic research at the Institute for Justice, explains that “special interest theory” may explain civil asset forfeitures’ staying power. The idea is that those who stand to benefit from forfeiture—law enforcement—are a concentrated interest, and those who don’t are a diffuse interest.

“Concentrated interest always has greater power than diffused interest,” he said. “The diffused interest is the public, you me everyone else, we don’t have power like the concentrated interest that organizes and lobbies on its own behalf.”

Civil asset forfeiture laws differ from state to state in three ways. First, they vary on how much of what local agencies seize they can keep—some places can keep up to 100 percent of what they seize, while in other states law enforcement can only keep a fraction. Second, proof of culpability required for forfeiture is much more stringent in certain states, while in others its quite low. Last is the difference in owner-burden to prove innocence: some states assume the owner of property is guilty when charged, making it much harder for the owner to retrieve forfeited property, while other states presume innocence, making the process of retrieving stuff easier.

Taking a cross section of these three different measures, the Institute for Justice ranked states where civil asset forfeiture is the most lucrative for law enforcement, and most threatening for everybody else. This is not a list of places where agencies were most enriched through forfeitures—those are generally always the bigger, richer states—but rather, it’s a list of places where you should try to avoid getting arrested unless you want your PlayStation commandeered, cashed in, and used to pay a prosecutor’s mortgage.

1. West Virginia

Total assets seized in 2013: $2,846,593

In West Virginia, the standard of proof for seizing property is very low: the state merely has to “demonstrate that property is related to a crime,” an extremely loose standard. Say a man and woman co-own a car and the man gets popped while soliciting an undercover posing as a prostitute (this is an extremely popular way among cops for taking cars). The car is seized because it was “related to a crime,” even though the man’s wife had equal claim to it.

Conversely, an owner’s burden to prove their innocence to get stuff back is extremely high in West Virginia. A completely uncritical report from West Virginia’s Register Herald notes that police obtained $65,000 in cash and six different vehicles. Some of the cash was used to purchase a $10,000 K-9 dog.

While a good deal of the assets seized by West Virginia law enforcement may well have been from high-level drug runners, it will never be known just how much was taken from low-level offenders or even from people who were never charged with a crime. If total assets seized are under $1,000, it can be more costly for a person to pursue a legal case to prove their innocence. In those instances, agencies usually wind up keeping whatever they took.

2. Virginia

Total assets seized in 2013: $18,640,557

Like its neighbor to the west, Virginia puts all the onus of proving innocence on the person who had their stuff taken by the police, while at the same time, the state’s burden to prove the relation of seized property to crime is extremely low. The state keeps 100 percent of everything it takes through civil asset forfeiture: “90 percent of the receipts go directly to law enforcement agencies that participated in a forfeiture, and thereafter, 10 percent goes to the Department of Criminal Justice Services to be used to promote law enforcement activities,” explains the Institute for Justice.

Hampton Roads describes one egregious example of forfeiture used on the innocent: Two men were pulled over for a routine traffic stop in 2011, when they were on their way to purchase land and a trailer for two separate churches in El Salvador and Atlanta. They had $28,500 in cash—all of which, in the end, the state tried to pocket. After a lengthy legal battle in which the Latino men even had to prove their citizenship, they eventually contested the seizure successfully, but not before incurring exorbitant legal costs for themselves (and the state for taxpayers).

3. Texas

Total assets seized in 2013: $106,927,691

The Lone Star state, that free-market paradise where government is anathema to basic civic values, actually shakes down average people of millions of dollars in assets with relative impunity and ease.

The Institute for Justice found that the ten Texas agencies that used civil asset forfeiture the most “take in about 37 percent of their budgets in forfeiture funds.” Their report also found that rural (read: poor) agencies were some of the most brazen looters, even as the state claimed the large number of seizures was due to urban agencies apprehending large-scale drug traffickers.

4. Michigan

Total assets seized in 2013: $16,225,273

In Michigan, “law enforcement receives all proceeds of civil forfeiture to enhance law enforcement efforts,” according to the Institute for Justice’s ranking. That’s millions of dollars that can be put toward bullets, cars, and ballistic vests—which is especially critical at a time when the Michigan State Police has cut its force by 61 percent due to budget cuts.

The Compassion Chronicles describes how one medical marijuana patient in Michigan was utterly pillaged by police:

“On April 15, 2010, [Ed] Boyke stepped outside of his Saginaw Township home and was surrounded by Saginaw County Sheriff’s deputies and U.S. DEA Agents. With weapons drawn, they served Boyke with a federal warrant to search his residence, based on confidential information that he had violated marijuana laws…[they] “started tearing the place apart”…When they left, they took: two lawn mowers, a leaf blower, an air compressor and generator from his garage, his 2008 Chevy Impala, $62 from his wallet, his marijuana plants, hunting rifles and ammo, five jars of harvested marijuana, Boyke’s medical marijuana card and paperwork, a generator, a paint sprayer, a dehumidifier, growing apparatuses, scales and a 42-inch Panasonic TV.”

In the end, Boyke forked over $5,000 to get everything back but his TV and rifles, which the deputies kept.

Despite the aforementioned examples, at least one state is setting the precedent for bucking against civil asset forfeiture: Minnesota. Before May 2014, law enforcement was raking in millions every year, raising forfeiture revenue 75 percent between 2003 and 2010. Sometimes this happened through brutally aggressive police raids. But just last month, the state’s government passed a law declaring that assets could not be seized unless a person is convicted of a criminal offense. It’s also harder now for the state to keep a person’s stuff without presenting a compelling case. The law will take effect in August.