Project Report:
Ending Civil Forfeiture and Protecting Private Property
Purpose
- Investigates causes tending to destroy or impair the free-market system.

Summary

Civil forfeiture is the ability of law enforcement to seize homes, cars, cash, and other property on the mere suspicion that it was involved in a crime—no conviction or arrest required. The Institute for Justice is working to counter this unconstitutional practice through path-breaking litigation, strategic research, legislative reform, and award-winning communications.

Description

The Institute for Justice (IJ) is the leader in the fight against civil forfeiture. In a span of less than 10 years, IJ drove forfeiture to national infamy through our media efforts, secured bipartisan condemnation, successfully advocated to increase legal protections for property owners in 33 states, and set precedent in courtrooms across the country—including at the U.S. Supreme Court last term.

But forfeiture remains one of the greatest threats to property rights in the nation. And being the leader in the fight to end it means having the creativity, resources, and expertise to challenge abuse again and again—and attacking new and longstanding hurdles that prevent constitutional limits from being enforced on the practice.

This strategy is central to a petition for a writ of certiorari IJ filed at the U.S. Supreme Court in November 2019. We teamed up with Miladis Salgado to hold the government accountable and get the highest court in the land to confirm that government cannot take property, keep it for years, and when they suddenly give it back, pretend like nothing happened. Wrongly seizing someone’s property without an arrest or conviction has real costs that the government should have to pay.

As you may recall, of the 25 forfeiture cases IJ has litigated, governments at every level have often tried to circumvent the Constitution and financial responsibility by returning seized property in unjustifiable forfeiture actions. Indeed, governments will frequently seize property and hold it for years while searching for a way to win a forfeiture case. If they win, the government keeps the property and is not bound by law to pay a property owner’s attorneys’ fees.

However, if the property owner is on the verge of obtaining a legal victory—and therefore, attorneys’ fees—the government will suddenly dismiss the case and give back the property in a way that enables the government to dodge paying the challenger’s attorneys’ fees.

IJ’s Supreme Court petition, filed with the support of the Alex C. Walker Foundation, argues that this practice magnifies the federal government’s incentive to police for profit. Without the obligation to pay attorneys’ fees, government agencies seize and keep innocent owners’ property free from any accountability.

With this petition, IJ will give the Court another opportunity to criticize and limit forfeiture following our landmark 2019 victory. Granting our petition will signal that the U.S. Supreme Court is open to seriously considering the constitutionality of forfeiture, and that IJ could pave the way for other litigators to join our efforts and protect countless Americans from spending months or years fighting without their cash, cars, or homes.

One such American is Tyson Timbs. Tyson, as you may recall, is the plaintiff in IJ’s 2019 Supreme Court victory in which the Court ruled that states’ and local governments’ takings are, like the federal government’s forfeitures, bound by the Excessive Fines Clause. And while a unanimous ruling at the highest court in the nation may seem like the rightful conclusion of our fight against abuse, Tyson’s problems didn’t end with IJ’s February win.

As part of the high court’s decision, Tyson’s case was sent back down to the Indiana Supreme Court, which was tasked with determining when a fine or forfeiture is unconstitutionally excessive under the Eighth Amendment. IJ argued on behalf of Tyson at the state supreme court in June 2019 and in October, the court set for a robust test for when forfeitures and fines violate the Excessive Fines Clause.

IJ will use this ruling not only to get Tyson’s property back at the trial court, but also to support the thousands of individuals caught up in Indiana’s forfeiture machine.

In addition to our second victory on behalf of Tyson, IJ also scored a preliminary win for transparency in one lawsuit during the grant term. In November 2019, the U.S. Court of Appeals for the D.C. Circuit unanimously sided with us in a fight over the Internal Revenue Service (IRS)’s forfeiture records.

Since March 2015, the IRS has fought the release of forfeiture data housed in the agency’s Asset Forfeiture Tracking and Retrieval System (AFTRAK), first by trying to charge IJ $750,000 in fees to produce records from the system. IJ sued, represented by pro bono counsel from our Human Action Network. In response, the agency shifted gears and argued that AFTRAK is not a database at all and therefore does not contain records.

Eventually, the IRS produced an incomplete and heavily redacted report from the system. And while the lower court agreed with the agency that this was sufficient, the appellate court disagreed and sent the case back to the district court to sort out what data must be delivered to IJ.

While this appellate-level win has significant implications for IJ and other reformers’ efforts to get a fuller picture of where abuse is happening, as well as the public and media outlets’ understanding of the issue’s scope, IJ is also pursuing other cutting-edge litigation to establish greater protections for property owners. Our seven ongoing forfeiture cases aim to set precedent that restores the due process safeguards guaranteed in the U.S. Constitution.

One such case, our class action in Eagle Pass, Texas, continues. Our case, you may remember, is on behalf of Gerardo Serrano and others like him who have had their property seized by federal Customs and Border Protection (CBP) agents. By suing a federal agency under their personal capacity for holding property without a prompt post-seizure hearing, IJ is creating an opportunity to hold CBP’s previously unchecked power to constitutional account.

After our case was dismissed in district court in September 2018, IJ appealed to the Fifth Circuit Court of Appeals. We are currently preparing for oral argument in the case, which will take place in February 2020.

Finally, IJ is exploring a challenge to a common and pernicious Fourth Amendment violation that federal agencies commit against domestic travelers at airports across the country who are legally traveling with cash. Upon finding a large amount of cash through X-ray screenings, TSA will often notify local or federal law enforcement, detaining carry-on luggage until their arrival. While the passenger may be told they are free to leave without their bags, most travelers cannot simply abandon their carry-on luggage. Law enforcement officers often then seize the money based solely on the idea that traveling with “too much” cash is “suspicious.”

The seizures we are challenging, which occur at airports across the country, are based solely on the presence of cash in luggage. But traveling with a large amount of cash does not create probable cause and does not endanger air travel or other passengers. To highlight before the court the inherently abusive nature of federal seizures and forfeiture, IJ’s legal strategy would seek to avoid mootness should the government ultimately return seized cash to our clients and expand the context in which government can be held accountable when it violates the U.S. Constitution.

Purpose

Property rights are the foundation of all our rights in a free society. But across the country, governments violate property rights through the practice of civil forfeiture. Civil forfeiture laws allow cash, cars, homes, and other property to be seized when the property is merely suspected of being involved with criminal activity. Under these laws, property owners can permanently lose their property without even being charged or convicted of a crime—a gross violation of people’s fundamental constitutional rights.

Scope

Every American’s right to own and enjoy their property hangs in the balance under the threat of civil forfeiture. Millions of dollars in property are seized every year and these forfeiture funds continue to grow exponentially: For example, the federal government took $29 billion in cash and other types of property in just 14 years, and state and local governments have taken hundreds of millions more. IJ engages courts, policymakers, activists, and the media nationwide to expose this harmful practice and advocates for greater protections in state and federal law; secures the return of this unlawfully seized property; and sets precedent in state and federal courts that others can rely on to win back their property.

Information Dissemination

With the Alex C. Walker Foundation’s support, IJ dismantled the largest municipal forfeiture scheme in the country in September 2018. After five years of litigation and over 100 features in local and national news, the city of Philadelphia agreed to a set of reforms ending forfeiture’s perverse financial incentives and reforming the procedures for seizing and forfeiting property.

The consent judgement IJ secured also established a $3 million fund to compensate innocent Philadelphians whose property was wrongly confiscated. To date, 2,162 claims have been filed by forfeiture victims who are seeking to be made whole. To ensure that as many victims as possible receive justice, IJ created a video news release (VNR).

VNRs give media outlets the raw material and footage they need for a story, as well as a blueprint for accurately sharing complex legal cases and updates with audiences. Through this format, IJ encourages reporters to keep the public informed of our clients’ fights.

IJ’s VNR alerting Philadelphians of the compensation claim deadline featured Senior Attorney Dan Alban discussing what forfeiture is, our federal class action lawsuit, and the process of applying for compensation in IJ’s in-house production studio. Dan shares the website PhillyForfeiture.com, an online resource IJ created to assist victims who wish to learn more about the case and how they can participate in the settlement.

We shared the VNR with nearly two dozen contacts at Philadelphia-area media outlets and included a link to the video in a November 2019 press release announcing the deadline for individuals who are eligible to apply for compensation.

IJ also published and promoted four other press releases during the grant term to maximize media impact. This strategy secured over 35 features for our forfeiture initiative, including four articles in Forbes with over 85,000 collective views.

Furthermore, IJ forged partnerships with local journalists. Our ongoing relationship with the Pulitzer Center on Crisis Report has led reporters across the country to rely on IJ for our forfeiture expertise, including the Kentucky Center for Investigative Reporting. Additionally, investigative reporter Nathaniel Cary launched his TAKEN series highlighting forfeiture abuse at the Greenville News. The series quoted IJ during the grant term and relied on our support for various articles, eventually securing Cary the 2019 EPPY award for Best Community Service.

On the legislative front, IJ is engaging potential coalition members in South Carolina and Mississippi. At the 2019 State Policy Network Annual Meeting, IJ joined Representative Alan Clemmons (R - SC) on a panel discussing forfeiture reform, including the importance of collecting data and avoiding meaningless reforms. The panel, which was attended by 40 audience members, also offered IJ’s research, legislation drafting, and testifying resources.

One key point IJ highlighted in our presentation is the critical need for reporting reform. During the grant term, we identified five states (Indiana, Kentucky, Louisiana, Oklahoma, and West Virginia) that have both limited record-keeping, which further threatens the property of innocent citizens, and are ripe with opportunity for legislative reform in the 2020 session.

No other organization has written model reform legislation and IJ’s advocacy, complemented by our strategic research program, is the primary source for reformers and proponents to understand where abuse is happening and how best to move forward.

IJ is leveraging two of our state offices, in Arizona and Florida, to strengthen other potential reform efforts. We sent a policymaker in Arizona our December 2018 white paper Forfeiture in Arizona, which analyzed the impact of the state’s incremental reporting reforms and was produced with the Alex C. Walker Foundation’s past support. IJ’s report confirmed that 54% of forfeitures happen without a conviction, and this data is helping us make a strong case for 2020 reforms that include a conviction requirement.

In the Sunshine State, we are focusing our efforts on supporting a bill that would put an end to one of the most egregious programs that encourages and rewards policing for profit: the equitable sharing loophole. Through equitable sharing, property seized locally can be forfeited federally, with up to 80% of proceeds getting returned to state and local agencies under federal law, which is sometimes substantially easier than forfeiting under state law.

We are also attacking equitable sharing at the federal level. We provided guidance to Senator Rand Paul (R - KY) about amending language in the Fifth Amendment Integrity Restoration (FAIR) Act to include IJ’s recommendation eliminating administrative forfeiture. If passed, the FAIR Act could not only reduce the financial incentive and ability of the federal government to seize property from innocent owners, but also ensure that forfeiture victims get their day in court.

All activity described in this report was performed consistent with the Institute for Justice’s nonprofit status, IRS regulations, and our agreement with the Walker Family Foundation.

Project Link endforfeiture.com

Amount Approved
$10,000.00 on 7/1/2019 (Check sent: 7/12/2019)


  Related Organizations
Institute for Justice  


IJ client Tyson Timbs
With the Indiana Supreme Court's ruling, IJ client Tyson Timbs is one step closer to getting his car back

Attachments
IJ client Tyson Timbs

Address
901 N Glebe Rd #900
Arlington, VA 22203


Phone
(703) 682-9320 ext 233
(703) 682-9321 (fax)

Contacts


Beth Stevens
Institute for Justice

Posted 3/29/2019 11:42 AM
Updated   1/10/2020 11:44 AM



 
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