Policing for Profit: When Your Property Does the Time

Pamela Huber

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Saturday, June 1, 2012: It is 3:30 am at the Takoma Park IHOP, and a sleek white Dodge Challenger pulls into the parking lot. A black streak stretches from the car’s trunk over the roof and down to the hood, blending with the tinted windshield like lacquered armor. The driver, DC firefighter Keith Chung, pulls into a handicapped spot and exits the vehicle.

The restaurant’s security camera captures the ensuing action in grainy detail. After a few minutes, DC police officers approach Chung’s car, and one writes him a ticket for improperly parking. When Chung returns, he finds the ticket, opens his car door and drops the paper on the ground as he slides into the driver’s seat.

The police officers approach the car, and, according to the police report, Chung refuses to produce his license or exit his vehicle, all the while shouting expletives at the officers. The officers charge Chung with resisting arrest, disorderly conduct, possessing an open container of alcohol, willfully disobeying an officer and littering.

DC’s Public Defender Services stated in court testimony that, “officers claimed to find a firearm on the person of one of the passengers in Mr. Chung’s vehicle” and that “Mr. Chung was initially arrested for being present in a motor vehicle containing a firearm, but he was not charged in connection with the incident.”

Metropolitan Police Department officers seized Chung’s car the same day as the arrest. On June 2, Chung sought the return of his car, and instead discovered DC’s complicated laws on civil asset forfeiture.

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Civil asset forfeiture allows law enforcement to seize property, money, cars and homes without convicting or even accusing the owner of a crime, on the basis of the property’s alleged connections to illegal activities. Unlike criminal asset forfeiture, which requires a property owner be charged and convicted of a crime before law enforcement can permanently seize the property, civil asset forfeiture circumvents due process by charging the property itself, rather than the owner, with a crime. And while criminal asset forfeiture requires substantial evidence of assets’ connection to illegal activity, civil asset forfeiture in DC only requires officers to offer a “probable cause” for a connection to illegal activity.

Darpana Sheth is an attorney for the Institute for Justice, a nonprofit public interest law firm aimed at protecting constitutional rights.

“[Civil asset forfeiture] is one of the strongest threats to private property rights in the country today, and it’s also an affront to due process and the rule of law,” Sheth said.

Civil asset forfeiture frequently violates the Constitution’s Fourth and 14th Amendments. The Fourth Amendment guards against unreasonable searches and seizures and requires that warrants for seizures be based on probable cause. The 14th Amendment protects due process, which ensures states respect all of a person’s legal rights, including the rights to receive notice of legal actions or charges, grieve or complain against those actions or charges in court, and appeal that court’s decision.

Continuing this bizarre inversion of due process, most state laws do not require police to prove property’s connection to illegal activities, but rather make the owner prove its innocence. Owners must pay hefty penal sums, or “bonds” simply to challenge a seizure and postpone forfeiture. According to IJ directors Dick M. Carpenter II and Lee McGrath in their report, “Rotten Reporting in the Peach State,” “to the rational property owner, the value of the property seized often simply isn’t worth the cost to reclaim it.”

William Claiborne is an attorney at law who has filed a class action lawsuit against the DC’s government on behalf of 19 plaintiffs who have had their cars or money seized for forfeiture or investigative purposes. Claiborne’s lawsuit focuses on the District’s failure to supply proper notice to property owners of the seizure.

“They don’t give you anything at the point of seizure that tells you where to go or what to do,” Claiborne said. “The law says if you take somebody’s property, you’ve got to give notice that says, ‘We’ve taken your property, we’re gonna have a hearing, you have a right to come to the hearing and be heard.’ Well, they never have a hearing because they don’t actually give you notice.”

It can take the government years to take a forfeiture case to court. In the meantime, owners cannot access their seized property, which severely disrupts their everyday lives, jobs and well-being. These hearings allow owners to contest their property’s seizure and keep their property while awaiting a forfeiture trial. The hearings are necessary for several reasons.

“If you’re an innocent owner, [a hearing] gives you an opportunity to get your car right back,” Claiborne said. “And even if you’re guilty of the offense, at least you get a right to drive your car around until there’s a final determination, because it’s very unfair to just snatch somebody’s car and hold it without a trial.”

DC law requires owners to pay a bond between $250 and $2,500 just to request a hearing to challenge the seizure of a vehicle—in Chung’s case, $2,075. Paying the bond does not insure Chung will get his car back. It simply grants him a hearing to request a preliminary injunction, which will let him continue to use his car before the forfeiture case goes to trial.

***

Forbes contributor Stephen Dunn, a tax expert and attorney who specializes in civil asset forfeiture, explains in his article “Nothing Civil About Asset Forfeiture” that the legal processes leading to a preliminary injunction can stretch on for weeks or months. DC lines up with federal law under the Civil Asset Forfeiture Reform Act of 2000. CAFRA requires the government, within 60 days of seizing property, to send written notice of the seizure to the owner. The owner has 35 days to file a claim for the property. Then the government has 90 days to charge the owner with a crime or file a civil forfeiture lawsuit. If it does neither it must return the seized property. Overall, the process can take over 6 months, but some have experienced longer cases.

It took DC resident Frederick Simms 11 months simply to request a preliminary injunction to have his car returned while awaiting a hearing on whether the forfeiture would hold up in court; the hearing occured two months later. Overall, Simms, 26, couldn’t use his car for more than a year.

MPD seized Simms’s car without a warrant on May 29, 2011 because police claimed to have found a firearm in it. Simms was acquitted of all related charges in DC’s Superior Court in December 2011. But his car remained in an impound lot.

Simms’s public defenders state in their motion for preliminary injunction, received May 1, 2012, that “the police have kept Mr. Simms’s car without providing Mr. Simms any opportunity to contest the initial seizure and subsequent retention of his vehicle pending any forfeiture proceedings.”

The resulting hearing occurred on July 6; Judge Emmet Sullivan returned Simms’s car, stating that “the District’s failure to provide Mr. Simms with a post-seizure hearing to challenge the deprivation of his vehicle pending the conclusion of civil forfeiture proceedings violates his constitutionally-protected due process rights.”

In the year without his car, Simms spent $40 a day on public transportation to travel to a $12-an-hour paying job. He could not drive his daughter to daycare or run errands with his fiancée.

“This whole situation has been a huge burden on my entire life,” Simms says in his testimony. “It has been costly, time consuming, and embarrassing.”

The District’s failure to offer Simms the opportunity to contest his car’s seizure joins a long list of injustices enabled by civil asset forfeiture: the government requiring a bond payment to hold a hearing for such an opportunity; police failing to provide proper notice of seizures; seizures requiring only probable cause of an asset’s connection to a crime; property’s “guilty until proven innocent” status; and courts placing the burden of proof on owners rather than the government.

Police frequently seize an innocent owner’s property because someone else connected it to a crime; the system’s set-up prevents innocent owners from easily getting their property back.

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The Reagan Administration created civil asset forfeiture to combat the war on drugs. By seizing property and money immediately, law enforcement prevents drug lords and money launderers from continuing to use those assets in criminal activities while awaiting trial. This limited their power and strengthened the government’s case against them.

“It is clear from the legislative history of CAFRA that Congress intended to limit civil forfeitures to alleged structuring connected with an underlying offense of drug trafficking or money laundering,” Dunn writes in his article.

And it worked. Instituted under the Comprehensive Crime Control Act of 1984, civil asset forfeiture helped bust major drug dealers and white collar criminals. Federal agents studied structuring—manipulating the transfer of money and assets so as to intentionally avoid IRS flags to divert suspicion—to find corruption within corporations.

Once courts forfeit assets, the government can pocket seized cash and auction off property, cars and real estate for profit.

“In most of these states as well as at the federal level, these laws give law enforcement agencies a direct financial incentive to seize property because most of the proceeds from forfeiture… [goes] directly back to the law enforcement agencies,” Sheth said.

This statute allow for the ideal war-on-drugs campaign: law enforcement can seize drugs, drug money and tools of distribution (including transportation) with only probable cause as evidence. The drugs not only exit the market, but can be used as evidence in court cases, and the profits from the seized drug lords goes towards fighting more drug lords. This is rare.

The victims of forfeiture abuse are not drug kingpins, but most frequently the poor and needy unable to pay their own legal fees. Since civil asset forfeiture does not allow for a right to an attorney, the indigent cannot afford to fight back against unjust property seizures.

“The whole system is rigged to what I call an ‘income-stripping device,’” Claiborne said. “They strip income from people who are least situated to get it back…. from the most vulnerable members of society that have the least ability to fight back.”

Claiborne says citizens are often pulled over for simple traffic violations. The criminal offenses then connected with seized property vary, but frequently will be related to drug possession or supposed money laundering related to the drug trade.

The Washington Lawyer’s Committee for Civil Rights and Urban Affairs reports that between 2009 and 2011, wards with higher African American populations witnessed higher arrest rates overall, and arrest rates related to drug crimes.

Claiborne said that a cop “can stop anybody he wants to” and that the arrest rates and subsequent seizures are “very unfair.”

“The day they start doing this over at George Washington or Georgetown, hey let me know, I won’t say it’s unfairly aimed at the most vulnerable members of society,” he said.

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The Institute for Justice reports that the District has raked in millions in the past decade through forfeiture.

“Under current DC laws there are no reporting requirements and so there’s little transparency about how the District is actually engaging in forfeiture and in how much they’re profiting from it,” Sheth said.

Even though reports vary as a result, we know that the District forfeiture program floods MPD with millions of dollars annually.From 2010 to 2012, DC seized 339 vehicles, as well as money from over 8,500 individuals, for a total profit of over 4.8 million dollars. And through a loophole called the equitable sharing program, the District has received another $8.2 million since 2000.

“[The equitable sharing program] allows state and local law enforcement to circumvent their own stricter local laws in order to receive a bounty of 80 percent of forfeiture proceeds simply be referring forfeitures to the federal government,” Sheth said
PDS has filed a lawsuit against MPD on behalf of approximately 375 car owners like Chung and Simms. The lawsuit is currently stilled in the court system due to negotiations between PDS and MPD. The negotiations resulted in MPD promising to limit its use of civil asset forfeiture pending the hashing out of legislation on forfeiture reform.

***

Councilmember Mary M. Cheh, a democrat from Ward 3, introduced a bill, both in 2012 and again in 2013, aimed at reforming civil asset forfeiture laws in the District. PDS supports Bill 20-48, the Civil Asset Forfeiture Reform Act of 2013. DC Attorney General Irvin B. Nathan supports Bill 20-419, the Civil Forfeiture Procedures Amendment Act of 2013, which was introduced by DC’s Executive branch in response to B20-48.

A working group is negotiating and compromising between the two bills in an effort to create legislation that can be passed before the December recess. Sheth is working with the group to bring about meaningful change that would improve IJ’s current grading of DC’s forfeiture laws: “F.”

B20-48 would shorten the time period between seizure and an owner’s ability to apply for an injunction and would require law enforcement officials have “clear and convincing evidence” to seize assets. It would also switch responsibility from owners proving their property’s innocence to the District proving the property’s guilt. Finally, it would place profits from forfeiture in the District’s general fund rather than just MPD’s budget.

The working group has agreed that Simms’s case has proven the need for prompt hearings following seizure, but the exact number of days between seizure and the hearing are still up for negotiation. The group has also agreed to transfer forfeiture proceeds to DC’s general fund, although the equitable sharing loophole is still up for debate.

Attorney General Nathan argues in his testimony against B20-48 that transferring forfeiture profits away from MPD would have devastating effects, including potentially leading to a suspension from the federal equitable sharing fund. Oregon and Utah’s share in the program were suspended when they enacted laws that took forfeiture profits from law enforcement and put them into general funds.

Sarah Stillman, a writer for the New Yorker, approves of allocating forfeiture proceeds to general funds, citing evidence from a national analysis of individual state laws. She writes in her article “Taken” that “States that place seized funds in a neutral account, like Maine, Missouri… North Dakota, and Vermont, have generally avoided major forfeiture-abuse scandals. Problems seem to arise in states—such as Texas, Georgia, and Virginia—with few restrictions on how police can use the proceeds. Scandals, too, emerge from the federal Equitable Sharing program, which allows local police to skirt state restrictions on the use of funds.”

Transferring profits to the general fund would hopefully reduce unfair seizures fueled by financial gain. “Right now, the police are the ones to make the call about whether they seize, they’re the one’s that make the call about whether to forfeit, and they’re the ones that make the call about whether the property should be forfeited, plus they get to keep the money,” Claiborne said. “So you have the same agency doing everything and that’s as pure policing-for-profit as you can get.”

As for the switch in the quality of the evidence required by police, Attorney General Nathan says that “Enacting this Bill would create a bizarre double standard under which forfeitures governed by DC law, which typically concern lower value property, would be more difficult to prove than forfeitures governed by federal law, which typically concern higher value property.”

Sheth responds to this quote: “I’m not sure that that makes sense….Right now… essentially, you have an officer on the street who thinks, ‘Ok, this property might be involved in a crime’ and it’s really just that determination of probable cause that can subject it to forfeiture.”

While the working group might disagree on the nitty gritty details, meaningful reform does look imminent.

***

Police released Chung’s car in July of 2012 after a preliminary injunction was granted. For two months he had carried 100 pounds of firefighting gear every day on public transportation, waking up at 4:00 a.m., rather than his usual 7:00 a.m., in order to reach different stations around the city. He struggled with supporting his extended family that relied on him for trips to the grocery store, school and medical appointments. He had to turn down a part-time job in Baltimore because he could not get there, although he desperately needed the extra money to pay $600 a month in loans on the car he could not use.

He was never charged with a crime. •

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Policing for Profit: When Your Property Does the Time