Purpose
- Investigates causes tending to destroy or impair the free-market system.
Summary
Civil forfeiture is the ability of law enforcement to seize private property—such as homes, cars, and cash—on the mere suspicion that it was involved in a crime with no conviction or arrest required. The Institute for Justice works to counter this unconstitutional practice through litigation, strategic research, legislative reform, and communications.
Description
The Institute for Justice (IJ) leads the fight to end civil forfeiture, a practice that deeply threatens the protections of the Constitution. To that end, IJ’s top-class litigation seeks to restore the constitutional rights, property, and dignity of those whose property is caught in civil forfeiture, aka “policing for profit.”
IJ is currently litigating 12 civil forfeiture cases in nine states. Over the course of the grant, we secured four victories, received a “mixed result,” and lost on one ruling we plan to appeal. Elsewhere, IJ lawyers argued as amicus at a state Supreme Court and in the Fourth Circuit Court of Appeals; and we advanced our existing litigation, launching six cases and wrapping up a years-long battle over forfeiture data.
Winning in the courtroom is a necessary step to dismantling civil forfeiture schemes and defending the rights of the innocent. In May 2022, IJ secured a critically important victory for our client, Jerry Johnson, at the Arizona Court of Appeals. The proud owner and operator of a small trucking business just outside Charlotte, North Carolina, Jerry had $39,500 seized from him at the Phoenix Sky Harbor Airport when he flew to Arizona to try and buy a third semi-truck at an auction. Like many other victims of forfeiture, Jerry was never charged with a crime, but shockingly, an Arizona trial court ruled Jerry failed to prove the cash was his and, therefore, could not contest the civil forfeiture of his money.
IJ argued that the lower court’s ruling violated Jerry’s right to due process, and the Court of Appeals unanimously agreed with IJ. Simply put, the court found Jerry could properly prove ownership of his money and has the right to defend his case in court. Now Jerry will have that chance.
In another victory for a client, we secured the return of $1.1 million in cash seized by the federal government in our Empyreal Logistics seizure lawsuit in California—helping IJ cross the threshold of $19 million in assets returned to our clients to date.
Sometimes we secure justice for our clients even before our cases make it before a judge. Such was the case with two clients for whom we filed lawsuits during the grant term: Kermit Warren and Stephen Lara.
In November 2020, Kermit Warren was traveling home to Louisiana after inspecting a tow truck he considered buying for his scrapping business. At the Columbus, Ohio airport, Drug Enforcement Administration (DEA) agents seized the money Kermit was carrying for the potential tow truck purchase. Kermit was never arrested or charged with any crime. Instead, the government’s complaint was based on vague innuendo and baseless accusations that the money was connected to drugs. After the DEA seized Kermit’s cash, the U.S. Attorney’s Office for the Southern District of Ohio filed a civil forfeiture lawsuit to keep the money.
Once IJ agreed to represent Kermit and documented the legitimate purpose for his trip and the legal sources of his money, prosecutors agreed to dismiss the case “with prejudice.” This means the government cannot re-file a forfeiture complaint in the future and effectively admits Kermit did nothing wrong.
Similarly, IJ client Stephen Lara was driving through Reno on a trip to see family when he was pulled over by the Nevada Highway Patrol for supposedly following a tractor-trailer too closely. Stephen cooperated with the escalating roadside investigation, even volunteering that he was carrying a large amount of cash. Ninety minutes later, Stephen had been robbed of his $86,900 in life savings, which he had been carrying around after a spate of robberies in his parents’ neighborhood.
In this case, local law enforcement ordered seizure of the money so it could be “adopted” by the DEA. “Adoption” allows federal law enforcement agencies to take over a seizure by state and local law enforcement, oftentimes circumventing stricter state laws. If adopted, seized assets are marked for equitable sharing, which guarantees the state or local agency that seized the property up to 80% of the proceeds for use in the agency’s budget.
The DEA sat on Stephen’s life savings for months, ignoring the legal deadline requiring it to charge Stephen with a crime, begin a civil forfeiture case, or return the money. So, on August 30, 2021, IJ sued in federal court on Stephen’s behalf. Early in the morning of September 1, the agency announced it would return all of Stephen’s money. In less than 24 hours, the DEA had learned of our lawsuit, answered tough questions from The Washington Post, and committed to reviewing its policies for federal adoptions. Emboldened by these developments, our legal advocacy for Stephen continued with a state court lawsuit that aims to make federal adoptions impossible in Nevada.
Unfortunately, the government did not answer Stephen’s complaint because the court decided our case could not continue until the Nevada Supreme Court decided a question at issue in Mack v. Williams. Even though the Attorney General’s office managed to delay Stephen’s claims by using this tangentially related case, the happy warriors at IJ set to work preparing and filing a superb amicus curiae brief to the Nevada Supreme Court. In 10 minutes of argument before the court, our lawyer shone as the expert on civil forfeiture and the Nevada Constitution, making specific references to our client Stephen and how his case would be affected by Mack v. Williams.
Our performance as amicus in Mack v. Williams demonstrates the value of IJ as legal expert. Indeed, a chance to reach state Supreme Courts, although sometimes marred by unfavorable decisions we want to appeal, gives IJ the chance to cement legal theories in the highest-level courts. When we seize opportunities to litigate at state Supreme Courts, whether our own case or as an amicus, our lawyers represent IJ as preeminent legal experts on key constitutional rights—in this case, rights guaranteed under the Fourth Amendment.
To that end, we were hopeful last December when we argued a case before the Indiana Supreme Court on behalf of our client, Terry Abbott, who had almost $10,000 in cash seized from him by the police in 2015—most of which was taken from Terry’s pocket and came from lawful sources and for a lawful purpose. A few months later, in March 2022, we were handed a ruling with mixed results: In a divided decision, the Indiana Supreme Court ruled that the government must prove it is entitled to keep seized property from a civil forfeiture, but forfeiture victims do not have a right to use their seized funds to hire an attorney.
Terry had initially hired an attorney to represent him in his forfeiture case, but with the government seizing his savings, Terry could not afford his attorney. Indeed, because civil forfeitures take place in civil, not criminal court, victims generally do not have a right to an appointed lawyer. The practical ramification for many forfeiture victims is they may have to represent themselves in court to defend against forfeiture of their property, which still costs money and takes up precious time, often over many months.
Terry’s case was an uphill battle, but one that IJ was best positioned to take. Thankfully, the ruling reaffirmed the government’s burden to prove criminal taint and acknowledged how civil forfeiture puts defendants in an unfair position. We hope the opinion will help future civil forfeiture defendants secure an appointed attorney.
Further north in Detroit, Michigan, we were disappointed to be handed a loss in our client Stephanie Wilson’s forfeiture case. Initially, we won the case; however, Wayne County appealed the decision to the Michigan Court of Appeals and won on that appeal. We are planning a petition to the state Supreme Court.
Our most recently launched case is an unfortunate example of what can happen when IJ is not in the room—victims get caught in difficult-to-navigate forfeiture systems, rarely reclaiming their property.
In October 2020, local police obtained a warrant to search our client Cristal Starling’s apartment because they suspected her then-boyfriend of dealing drugs. A search turned up $8,040 in cash: $7,500 in a dresser drawer and $540 in the pocket of a pair of women’s pants. At the same time, police found drugs in a house owned by Cristal’s boyfriend’s mother. The police arrested Cristal’s boyfriend and charged him criminally with dealing drugs, while also seizing Cristal’s $8,040 and her two vehicles—her personal vehicle and a Ford truck she uses for her food cart business.
Cristal’s boyfriend was ultimately acquitted, however, the police transferred Cristal’s $8,040 to the federal government, and the DEA initiated civil forfeiture proceedings. The DEA sent Cristal a forfeiture notice, and Cristal filed an administrative claim, as instructed by the notice. Having already filed a claim with the DEA, Cristal did not understand she had to file a separate claim with the court. After rejecting a partial settlement offer, she filed more requests to have her property returned, but the government struck down her requests based on missed filing deadlines. The district court then issued a default judgment against the $8,040.
In addition to Cristal’s case, we also filed a major lawsuit on behalf of Ameal Woods and Jordan Davis in Texas. The case began when sheriff's deputies in Harris County pulled Ameal over while he was on the way to purchase a tractor-trailer to expand his small trucking business. Ameal was not arrested or charged with any crime. yet the police seized $42,300 in cash he and Jordan had saved.
As it does in all cases, Harris County relied on a copy-and-paste form to seek forfeiture of Ameal and Jordan's money, alleging it was somehow connected to "the crime of illegal activities." The couple partnered with IJ to file a class action lawsuit challenging the constitutionality of the county’s forfeiture program. The suit argues that virtually all civil forfeitures in Texas are unconstitutional because the state has an unconstitutional financial incentive to seize and forfeit property without probable cause. This leads to innocent people, like Ameal and Jordan, falling victim to violations of their property rights. We aim for the Texas Supreme Court to decide this ambitious challenge to the state’s forfeiture system.
Most forfeitures involve relatively small amounts of money, so it often makes no sense to hire a lawyer. And many property owners like Cristal and Ameal are simply getting wrapped up in complicated procedures. In the face of procedural challenges, immunity doctrines, and equitable sharing incentives, IJ does not back down from a fight worth fighting—and our tenacity can pay off. In May 2022, our seven-year FOIA battle to get IRS forfeiture records finally ended. Two years after the D.C. Circuit Court of Appeals ruled the IRS could not deliberately stall our FOIA request, the IRS finally turned over all the forfeiture data IJ sought. Early data reveals the IRS was aggressively applying structuring laws to seize lawfully obtained currency from innocent individuals and businesses. Revealing the full contents of this database will shed important light on IRS forfeiture activities around civil and criminal “structuring.”
In conclusion, this has been a tremendously productive year for IJ. Thanks to the support of the Alex C. Walker Foundation, we secured victories that not only provided immediate relief for our clients, but also reinforced our efforts to curtail and ultimately abolish the practice of civil forfeiture across the country.
Purpose
Property rights sit at the foundation of a free society. But across the country, governments violate property rights through the practice of civil forfeiture. Through civil forfeiture, property owners can permanently lose their property without being charged or convicted of a crime, a violation of Americans’ constitutional rights.
Scope
IJ advances protections for property owners by establishing precedent in the courtroom that others can use to protect their rights; securing the return of property; and pushing for reform of state and federal forfeiture laws consistent with our 501(c)(3) status. Civil forfeiture threatens every American’s right to own and enjoy their property. Each year, millions of dollars in property are seized. Over the last 20 years, federal, state, and local law enforcement have forfeited $68.8 billion, and many states fail to report fully, meaning this is likely a dramatic undercount.
Information Dissemination
IJ deploys a multifaceted strategy to advance civil forfeiture reform, and our expertise carries weight beyond litigation. We know how to apply our expertise outside the courtroom to educate policy advocates, reporters, scholars, and members of the public about civil forfeiture. IJ is committed to our goal of ending civil forfeiture, and, to that end, we unleash the highest-quality advocacy, media relations, and strategic research to aid our mission.
During this grant period, and following a significant IJ victory on behalf of property owners in a class action lawsuit against Philadelphia’s notoriously abusive civil forfeiture program in 2018, our strategic research team produced a first-of-its-kind study titled Frustrating, Corrupt, Unfair: Civil Forfeiture in the Words of Its Victims. The study, launched in October 2021, surveyed more than 30,000 people who had property seized under Philadelphia’s forfeiture program, gathering data from 407 victims. Though the survey focused on Philadelphia, the challenges victims faced are common to forfeiture programs across the country. Among other findings, the survey revealed how civil forfeiture is extremely hard to fight, especially for the disadvantaged. Many victims reported not even trying to get their property back, often for sensible reasons such as the low value of seized property and the high cost of legal assistance to navigate the system. Indeed, the median value of a single item seized was just $600—far less than it would cost to hire an attorney.
IJ promoted this groundbreaking study by, among other activities, securing an exclusive in USA Today that highlighted our findings. The article was accompanied by a beautifully produced video in which one of the victims we surveyed told his story in his own words, further highlighting the human toll of civil forfeiture.
At the state level, IJ contributed to significant reforms passed during this grant term. Most notably, in July 2021, Maine repealed civil forfeiture entirely, becoming the fourth state to use only criminal forfeiture to take ownership of the fruit or instruments from convicted defendants. Fortunately, Maine was not the only state to reform civil forfeiture laws in the past year.
On March 28, 2022, Governor Kristi Noem signed HB 1328 into South Dakota law. The new law requires law enforcement to report information about property seized or forfeited. The bill is based on IJ’s model reporting bill. And on June 27, Governor Chris Sununu signed HB 1493 into New Hampshire law. It clarifies existing reporting laws and requires the attorney general to include the drug forfeiture fund in an annual report. In both states, an IJ researcher provided testimony in support of the legislation. In other progress, legislators in Vermont and New Hampshire approved interim studies on ending civil forfeiture and replacing it with criminal forfeiture.
During this grant period, we also seized an incredible opportunity to support reform at the federal level. In December 2021, IJ testified at a December hearing of the House Oversight Subcommittee Hearing on Civil Rights and Civil Liberties about the need for forfeiture reform. At the hearing, an IJ senior attorney introduced a detailed infographic we developed this past year. The new infographic demonstrates how complex and byzantine the federal forfeiture system is, and how it stacks the deck against property owners.
Rep. Jamie Raskin even gave his concluding remarks while holding up our poster, calling it an “excellent poster, which really demonstrates the byzantine complexity of this Orwellian & Kafkaesque system….” Our visual graphic—with its clear, concise, and captivating message—proved an effective tool to educate policymakers and the public about the reprehensible nature of civil forfeiture policies.
Those legislators’ advocacy continued. Following up from our hearing, Reps. Raskin and Nancy Mace wrote a letter to Attorney General Merrick Garland in May 2022, asking for a briefing around concerns with the Equitable Sharing Program and seizing property from individuals without any criminal charges or a conviction. Such a briefing has not yet been held. In the face of this inaction, IJ will ramp up pressure to maximize the momentum stemming from our committee hearing.
One example of how we ramp up pressure on the issue of civil forfeiture is with our communications team’s new “quick response” press releases. The press releases are a few hundred words about forfeiture news items that do not directly relate to our cases. For example, we released a press release condemning the Staten Island DA using civil forfeiture funds to purchase facial recognition technology, and one condemning Michigan lawmakers for undoing reforms to the state’s civil forfeiture system.
Informing the public about the abuses of civil forfeiture systems is a key part of building support for reform. During the grant term, we were cited in 220 articles in 137 outlets, and our communications team secured 22 op-eds written by IJ. Our video team produced another powerful video for the launch of our case appealing Cristal Starling’s forfeiture. And our video on Nevada client Stephen Lara, which has amassed over seven million views to date, is a testament to our skilled video production team and the abject disbelief one experiences watching a civil forfeiture take place.
Our reach stretches even further. For example, Boston’s NPR affiliate WBUR, with whom IJ has worked on several forfeiture stories over the past few years, hosted an event about forfeiture and potential legislation at the state level. During the event, when asked how the panelists became interested in the topic, one journalist responded, “I was reading a report from the Institute for Justice. They analyzed the laws in every state and gave each one a grade based on civil forfeiture—and Massachusetts got an F. That’s what sparked my interest….” Our attention-grabbing strategic research helped inspire these journalists to investigate how and why these forfeitures happen, convincing them forfeiture is an issue worth reporting.
The task of ending civil forfeiture in America is no small feat. Despite the challenge, IJ is fully equipped to keep bringing our best possible research and communication strategy forward in our fight to end this outrageous practice. Until we abolish these programs, anyone in America is vulnerable to being subject to unconstitutional seizure and forfeiture. Over the last year, IJ made several noteworthy dents in the viability of these programs. We will continue our mission of fighting against—and ending—deeply flawed civil forfeiture systems.
All activity described in this report was performed consistent with the Institute for Justice’s nonprofit status, IRS regulations, and our agreement with the Alex C. Walker Foundation.
Project Link https://endforfeiture.com/
Amount Approved$20,000.00
on 6/8/2021
(Check sent: 6/11/2021)
