- Investigates causes tending to destroy or impair the free-market system.
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.
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 litigation and media efforts, secured bipartisan condemnation, successfully advocated to increase legal protections for property owners in 35 states, and set precedent in courtrooms across the country—including at the U.S. Supreme Court last year.
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. Through five wins secured during the grant term, IJ encouraged courts to recognize that no American should lose their property without being convicted of a crime, and that the government should not be able to profit from other people’s property under the U.S. Constitution.
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’ forfeitures 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 2019 win.
As part of the high court’s decision, Tyson’s case was remanded to the Indiana Supreme Court to determine 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 a robust test for when forfeitures and fines violate the Excessive Fines Clause.
The state Supreme Court not only recognized that the Excessive Fines Clause is a vital protection for Americans, it also sent the case back to the trial court to apply the new standard to the facts of Tyson’s case. In April 2020, the trial court held that the forfeiture violated the Eighth Amendment, ordering the state to return Tyson’s vehicle immediately. After 14 months of litigation and wins at three levels of the court, Tyson finally got his car back.
But even after repeated rebukes from the courts and public—including more than 350 media features since IJ took this case—the government is doubling down in an attempt to protect its profits and its power: The Indiana Attorney General appealed IJ’s latest victory to the state Supreme Court. IJ is well-equipped to once again fight and beat back Indiana’s relentless use of its forfeiture machine.
In addition to our two victories on behalf of Tyson, IJ also scored a preliminary win for transparency. 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 thus does not contain records.
When the IRS produced an incomplete and heavily redacted report, the lower court agreed that this was sufficient. But IJ appealed the decision to the D.C. Circuit. The appellate court agreed with us and made it clear that the IRS must turn over all data that falls under IJ’s original request. In 2020, IJ started to receive data. We expect to get details describing seizures, value of the property, and equitable sharing requests. This data will have significant implications for IJ and other reformers: We will get a fuller picture of where abuse is happening and be able to highlight the issue’s scope to the public and media outlets.
IJ also scored a preliminary victory in our class action on behalf of domestic airport travelers. Within weeks of filing our case, the federal government returned every penny it seized from our clients Terry Rolin and his daughter Rebecca Brown.
Across the country, a common and pernicious Fourth Amendment violation committed by federal agencies threatens domestic travelers. Upon finding a large amount of cash through X-ray screenings, Transportation Security Administration 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 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 ensure that we bring the inherently abusive nature of federal currency seizures and forfeitures to the attention of the court and the court of public opinion, IJ’s legal strategy seeks to avoid mootness by suing on behalf of a class and expanding the context in which government is accountable when it violates the U.S. Constitution.
Getting Terry and Rebecca’s money back was an important first step, but IJ’s goal for this case is to obtain broad precedent that will protect all travelers subject to this abuse. We are continuing to litigate this case and seven other forfeiture cases to restore constitutional safeguards for all Americans.
One of those cases, you may remember, is a class action 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 federal agents in their personal capacity for holding property without ever filing a forfeiture action, 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 5th Circuit Court of Appeals. Our February 2020 argument before the 5th Circuit was action-packed: Before a panel of judges, IJ explained that government cannot return property to make a case go away. We challenged the government’s arguments at every turn, engaging the court on mootness issues, Bivens, and class claims.
Visibly satisfied with IJ’s preparedness and outraged that the government held Gerardo’s truck for two years before filing a forfeiture case, the panel took our case seriously, posing questions to both sides and even stepping into Gerardo’s shoes. Justice Higginson—a former prosecutor—orally imagined having his car seized, receiving a letter in the mail with confusing directions, and then having to continue with life and work without a car.
This illustration is exactly the difficult reality IJ clients like Gerardo—and all vehicle forfeiture victims—face. And during the grant term, IJ used our student program to explore how we can strengthen the reach of our work and help greater numbers of victims.
Each year, IJ hires approximately two dozen law school students. This program, which develops a pipeline of legal talent for IJ and our network, includes opportunities for students to research pressing questions in our active and future litigation. This year, students created two memos to strengthen our class action strategy. The first explores what remedies are possible in class action forfeiture cases, including an injunction requiring the return of property, a refund of the value of the forfeited property, and compensatory damages. The second memo answered the question of how IJ can pursue class certification under a seldom-used federal rule of civil procedure.
With this research, IJ can more easily identify how we can best ask for the return of property on behalf of a class. Because most courts are hostile to damages class actions and because determining damages for class members risks having individual issues predominate common issues of fact or law, this research allows IJ to more effectively persuade the courts to rule on the constitutional issues at the heart of our cases.
This research is especially helpful for IJ’s four active forfeiture class action cases. Our class action in Detroit, filed in February 2020 with the Walker Foundation’s support, is taking aim at a 30-year-old U.S. Supreme Court decision holding that there is no innocent owner defense to forfeiture. We are bringing novel legal claims against warrantless seizures that lack probable cause and procedural due process violations, including the lack of a prompt post-seizure hearing and lack of protections for innocent owners.
Finally, IJ petitioned for a writ of certiorari 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 by sidestepping its statutory obligation to pay her attorneys’ fees. Wrongly seizing someone’s property without an arrest or conviction has real costs that the government should have to pay.
While the Court declined to hear our case in April 2020, IJ will continue to fight with Americans like Miladis to ensure government is financially responsible for unjustifiable forfeiture actions. Securing legal precedent that holds the government accountable will pave the way for other litigators to join IJ in protecting individuals from spending months or years fighting without their cash, cars, or homes. Our fight is not over, and IJ is exploring every avenue to attack the hurdles that prevent constitutional limits from being enforced on forfeiture.
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 with or convicted of a crime—a gross violation of people’s fundamental constitutional rights.
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.
IJ uses several public relations tactics to get our message out. We issue press releases, publish client-centered videos, place op-eds, and secure media features to inform the public about the threat of forfeiture—and explain why it must be abolished.
Our strategy works. When IJ took on Philadelphia’s forfeiture scheme, it was the largest municipal program in the country, turning thousands of innocent Philadelphians’ lives upside down every year. But after half a decade 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, 2,331 claims have been filed by forfeiture victims who are seeking to be made whole. But our fight isn’t over: To ensure that as many victims as possible receive justice, IJ conducted a phone and postcard campaign and 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 to the compensation claim deadline featured Senior Attorney Dan Alban discussing what forfeiture is, our federal class action lawsuit, and how to apply for compensation. 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.
Our video announcing the launch of our class action case in Detroit is another highlight from this grant. The video, viewed a whopping 163,000 times on social media, explained how Detroit’s program is unconstitutional and hurts thousands of innocent owners each year. In it, we also explain how the Bennis decision made the systemic abuse in Detroit possible and why IJ is fighting to overturn it in court.
Another IJ video, this time on Terry and Rebecca’s fight in Pittsburgh, went viral during the grant term. Viewed more than 140,000 times on YouTube alone, the video accompanied exceptional national and international coverage. Forty-one unique outlets detailed the launch of our case. From the Washington Post and New York Daily News to the Pittsburgh Post-Gazette, readers were outraged to learn that the government confiscated a retiree’s life savings just because the cash was detected during travel.
IJ published and promoted seven press releases during the grant term to maximize media impact. This strategy secured over 175 features for our forfeiture initiative, including 21 op-eds written by IJ staff. Through these publications, IJ speaks directly to our audiences, drawing upon our expertise and real-world impact to educate readers and generate public support for our work.
For example, in one Macomb Daily article, IJ informed Michiganders about what effective forfeiture reform could look like in their state. We noted that while Michigan’s 2019 reforms appeared strong on paper, they created loopholes that threatened property owners across the state. But there is hope: Using the example of New Mexico’s recently enacted gold standard reforms, IJ outlined specific recommendations that would ensure the highest protections against abuse. Those recommendations include transparency in reporting and eliminating the profit incentive through directing all revenue to a neutral non-law enforcement fund.
IJ also forged partnerships with local journalists to support our ability to secure strong coverage. Our ongoing relationship with the Pulitzer Center on Crisis Reporting 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 scoring Cary the 2019 EPPY award for Best Community Service.
Reporter Jacob Ryan at the Kentucky Center for Investigative Reporting teamed up with IJ to feature our forfeiture work. As Ryan searches for experts and new angles to expose the many ways forfeiture affects Americans today, he quotes IJ and cites our research and cases. This relationship helped solidify IJ’s access to outlets such as The Texas Tribune, where Ryan is a contributing author, making our pitches about case developments and notable achievements stronger and more likely to get placed.
On the legislative front, IJ supported three bills that two states enacted. The first win, a transparency bill based on IJ’s model, creates an online searchable database of New Jersey’s seizures and forfeitures. Law enforcement agencies that fail to comply with the reporting mandate will be forced to return seized property. The second, also in New Jersey, requires a criminal conviction before civil forfeiture. This new law stays the forfeiture litigation in civil court until after a conviction in criminal court. Although less effective than IJ’s model criminal forfeiture act, the new law may help some property owners. It also will present opportunities for us to return to Trenton to enact comprehensive reforms like those IJ helped enact in New Mexico in 2015 and Nebraska in 2016.
IJ’s third legislative success was in West Virginia. In West Virginia—one of the five states IJ identified as a target for our 2020 efforts—Governor Jim Justice signed a reporting bill based on IJ’s model into law. The legislation makes it easier for analysts, such as IJ’s research team, to track seized property in the state by making records available online. We anticipate using these records, should the state make them available, as we develop the third edition of our Policing for Profit study.
IJ also engaged potential coalition members in South Carolina and Mississippi. At the 2019 State Policy Network Annual Meeting, IJ joined Representative Alan Clemmons (R-S.C.) on a panel discussing forfeiture reform, including the importance of collecting data and avoiding meaningless reforms. The panel, attended by 40 audience members, also offered IJ’s research, legislation drafting support, and testifying resources.
Indeed, in just one month, IJ testified in support of reform efforts in South Dakota, Tennessee, and Washington state. And in 2020, we provided legislative guidance on 20 bills in 18 states and five bills in Congress. From increasing due process protections and requiring reporting to removing the equitable sharing loophole, each of these bills benefited from behind-the-scenes IJ support: No other organization has written model reform legislation and our 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 effect 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 in the state 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 end one of the worst 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.
On the federal level, IJ used our Policing for Profit and Forfeiture Transparency and Accountability resources to help improve regulatory enforcement and adjudication. At the request of the Office of Management and Budget, we submitted comments in March 2020 that emphasized the problem of administrative forfeiture, where seizing agencies determine whether property should be forfeited without any judicial oversight. In addition to our research, IJ provided the agency with a solution: abolish administrative forfeiture. We noted that the lack of judicial oversight, the requirement that owners prove their own innocence, and the direct financial incentive make abuse both easy and lucrative regardless of the owner’s guilt or innocence.
Following the comment period, President Trump issued an Executive Order that may help highlight the problem with administrative forfeiture and potentially reform some other forfeiture practices. The order requires agencies to revise their procedures to ensure that the government bears the burden of proving an alleged violation of law and that agency adjudicators be impartial and independent of enforcement staff. These recommendations could better protect the innocent and ensure the impartial administration of justice. IJ is closely following this order and developing a multipronged strategy to bolster its impact and advance other reforms.
IJ also provided guidance to Senator Rand Paul (R-K.Y.) 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 eliminate the financial incentive and limit the 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 Alex C. Walker Foundation.
Project Link endforfeiture.com
(Check sent: 7/12/2019)