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 works to counter this unconstitutional practice through path-breaking litigation, strategic research, legislative reform, and award-winning communications.

IJ Client Jerry Johnson
IJ Client Jerry Johnson had nearly $40,000 taken from him on his way to buy a new truck for his business.

Description

No American should fear losing their property without being convicted of or even charged with a crime. But civil forfeiture too often transforms this fear into a reality for many Americans. Civil forfeiture encourages what IJ calls “policing for profit,” or the practice of stripping individuals of their homes, cars, and cash with the feeblest justifications. Constitutional rights protecting private property are disregarded, and Americans are left to defend themselves against the government’s massive power and abuse.

For over a decade, the Institute for Justice has fought to abolish this practice by defending Americans in the courtroom and spearheading legislative reforms. The Alex C. Walker Foundation’s support during this grant period has enabled IJ to secure important victories in courtrooms and state legislatures. Specifically, since IJ’s report in January, we have launched two new cases, won intermediate or final victories in ongoing cases, and championed legislation to curb civil forfeiture.

In April, IJ filed a lawsuit on behalf of Jerry Johnson after officers interrogated him at the Phoenix airport and seized the almost $40,000 he was carrying. Jerry had committed no crime, as it is entirely legal to fly with cash. In fact, he was on his way to buy a truck for his small trucking business. But the officers baselessly accused him of laundering money. State prosecutors then used civil forfeiture to take Jerry’s money. Before he could challenge the forfeiture, Jerry first had to prove the money was his. But the court found that Jerry was more likely to be transporting the proceeds of drug trafficking than traveling with the money on a legitimate business trip. Thus, the court decided he was not the owner. This effectively required Jerry to prove not simply his ownership but his innocence. The court ordered the forfeiture of Jerry’s money and now the state retains it.

It violates due process to require someone to prove their innocence to secure the return of their property. Instead, the government bears the burden to prove that the property is connected to a crime—a responsibility Arizona completely abandoned in Jerry’s case. Jerry partnered with IJ to appeal the court’s decision. A victory will fortify property rights in Arizona by removing this unconstitutional legal loophole.

Then, in late May, IJ launched a case challenging the Federal Bureau of Investigation (FBI) after the agency seized Paul and Jennifer Snitko’s property from a security box even though they had committed no crime. The Snitkos used U.S. Private Vaults—a company in Beverly Hills, California, that provided secure boxes for customers to store valuables. Entirely unbeknownst to the Snitkos, the FBI indicted U.S. Private Vaults on money laundering charges and other crimes. But when the FBI raided the business in March, it seized not only the company’s business property but also the contents of every customer’s safe-deposit box. Then, much like how Arizona prosecutors treated Jerry, the FBI refused to return any property until each customer proved their innocence.

The Snitkos (as well as IJ client Joseph Ruiz) did nothing wrong. It is possible that U.S. Private Vaults and some customers may have committed crimes, as the FBI alleges. But in the government’s eyes, you lose your right to privacy and property because your neighbor has been accused of wrongdoing. Several more victims have joined IJ’s class action lawsuit since we filed it in June, including Jeni Pearsons and her husband Michael Storc, who rented a box to store silver for retirement. And Travis May—the CEO of a Los Angeles company—stored gold and $63,000 in cash in his rented box.

The FBI is treating hundreds of people as criminals without any evidence. In fact, the government has not even charged any of our clients with a crime or told them why their property has been seized. Nevertheless, the government has seized nearly $100 million and is attempting to permanently take many prized possessions now through forfeiture. While IJ secured the return of the Snitkos’ possessions, Joseph, Jeni and Michael, and Travis still await theirs.

At the end of June, we secured a temporary restraining order against the federal government that prevents it from moving forward to forfeit our clients’ property. While the order expressly applies to IJ’s plaintiffs, the reasoning applies to every customer. It is immensely difficult to secure these orders against the federal government, and this victory is a testament to IJ’s litigation skill. Ultimately, our lawsuit is designed not only to reunite our clients with their property but also to secure an order directing the FBI to destroy records of its unconstitutional search of private boxes.

IJ continues our federal class action lawsuit against the Drug Enforcement Agency (DEA) and Transportation Security Administration (TSA). As you may recall, we represent multiple clients who had large amounts of cash taken at airports, and our class action lawsuit on their behalf is designed to end these abuses entirely. A victory in March brought us one step closer to that goal. After IJ filed suit, the government attempted to convince the judge to dismiss our class action claims. But a federal district court judge rejected the government’s motion and allowed all our class action claims against the TSA and DEA to proceed. This decision recognizes that IJ has brough valid legal claims against both agencies. After discovery and summary judgment briefing, the court will decide whether the evidence supports those claims.

A total victory in Pennsylvania defeated the government of Lancaster County’s attempt to hide forfeiture records. On behalf of local reporter Carter Walker and news outlet LancasterOnline, IJ sued the county. We argued before the Commonwealth Court last December that our clients’ request does not violate privacy laws in any way. In February, the Commonwealth Court ruled in IJ’s favor, stating that disclosing this information advances “accountability … for the civil forfeiture of property.” This total victory will prevent law enforcement agencies across the state from keeping forfeiture records away from public scrutiny.

IJ’s class action lawsuit in Detroit secured a victory for our client Stephanie Wilson. Two years ago, the city seized Stephanie’s car after alleging that her passenger had used drugs before she picked him up. But in April, after joining with IJ, Stephanie won her car back when the court ruled there was no evidence that would support its forfeiture. Even after a judge ordered prosecutors to return the car “immediately,” they refused to do so. Finally, after the judge again ordered the prosecutor to release the car or face contempt, Stephanie was reunited with her Saturn Ion.

While Stephanie received her car, the county’s obstructionism also extends to Robert Reeves, another client in this class action claim. Robert lost his car in the same forfeiture scheme, based on the alleged conduct of another person. But after he partnered with IJ in our federal lawsuit, the county charged him criminally at the state level to complicate federal proceedings. IJ successfully defended Robert from these charges when a judge ruled in February that the county lacked probable cause for its criminal charges. But the county again re-filed the same charges, and Robert will be back in court in July fighting the claims. IJ will defend Robert no matter the roadblocks that arise and ensure that a decision at the federal level is reached.

IJ’s January report noted that our successful lawsuit challenging Philadelphia’s forfeiture machine was ending. A half decade of litigation convinced the city to reform its civil forfeiture process, and IJ secured a $3 million fund for innocent Philadelphians who suffered under the system. Finally, checks were sent out and victims received their overdue compensation. It has been a long journey in this case, but the final victory on behalf of thousands of Philadelphians demonstrates how important IJ’s forfeiture work is.

In the latest of multiple victories—including one at the U.S. Supreme Court—IJ won a third-round victory for Tyson Timbs at the Indiana Supreme Court in early June, which ruled that forfeiting his car violated the Eight Amendment’s Excessive Fines Clause. The Indiana attorney general had appealed our previous victory to the Indiana State Supreme Court, and IJ argued there in early February. The court’s decision held that “the harshness of his Land Rover’s forfeiture was grossly disproportionate to the gravity of the underlying dealing offense and his culpability for the vehicle’s misuse.” While the attorney general has indicated the state may appeal this ruling once again to the U.S. Supreme Court, our victory established important protections for and precedent concerning property rights that will be cited for years to come. And IJ will continue to vigorously represent Tyson regardless of how many times the state appeals.

Unfortunately, the Supreme Court did not agree to hear Gerardo Serrano’s case. Customs and Border Protection (CBP) seized Gerardo’s truck while he crossed the U.S.-Mexico border. After Gerardo partnered with IJ to sue, the CBP returned his truck to avoid accountability. IJ continued our suit to ensure that hearings are provided promptly after seizures, not two years later as happened with Gerardo. While the Supreme Court did not take Gerardo’s case, this decision will not end IJ’s fight for this aspect of due process. IJ will be on the lookout for new opportunities to bring forward cases about prompt post-seizure hearings.

As you may recall, IJ filed suit on behalf of Travis Green in July 2020. South Carolina prosecutors seized Travis’ money and attempted to keep it permanently. But IJ’s victory in Timbs allowed the trial court in Travis’ case to strike down civil forfeiture in South Carolina. State prosecutors had too much money on the line, so they appealed the ruling in Travis’ favor. IJ joined with Travis to defend his previous victory at the state supreme court and argued the case in January. The court was highly critical of the government’s argument, and we hope to receive a ruling affirming the trial court’s decision.

The Alex C. Walker Foundation’s commitment to IJ’s civil forfeiture litigation has propelled many of our cases to important victories. And our ongoing lawsuits are positioned well for success. The government wields unconstitutional power through civil forfeiture, and IJ ensures that those who are victimized by this abuse can challenge it and win. Ultimately, IJ will continue our fight to dismantle civil forfeiture entirely.

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, as our new research revealed, federal and state governments took $68.8 billion in cash and other types of property since 2000. 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

IJ’s challenges to civil forfeiture extend well beyond the courtroom. Our media efforts, original research, and legislative engagement highlight the shortfalls of civil forfeiture and detail practical solutions in the court of public opinion and in state legislatures.

Since IJ’s January report, we released an additional research publication Does Forfeiture Work? The report examines data from five states—Arizona, Hawaii, Iowa, Michigan, and Minnesota—to determine whether civil forfeiture results in more effective policing. Ultimately, the report found that more civil forfeiture proceeds do not help police solve more crimes or reduce drug use. But police do appear to rely more heavily on civil forfeiture when local economies suffer. Alongside the report, IJ published op-eds in the Kansas City Star and The Center Square, and we sent our press release announcing the report to 267 media contacts. Finally, we published a 10-minute interview on YouTube with Dr. Brian Kelly, who conducted the research and authored the report.

IJ released the third installment in our landmark series Policing for Profit in December. As we detailed in our previous report, this report is not only our most comprehensive report on civil forfeiture but also the largest collection of state and federal forfeiture data ever gathered. Since the report’s publication, IJ has secured more than 50 media features on Policing for Profit. And IJ’s Deep Dive podcast released an episode discussing the report, which has since garnered almost 30,000 views on YouTube alone.

IJ also published five press releases (including the one mentioned above) since January covering our casework and research, reaching almost 2,000 media contacts. The most far-reaching of these was our press release announcing our petition to the Supreme Court in Gerardo Serrano’s case, which was sent to over 1,500 contacts at the national and state levels. In total, IJ’s forfeiture work was covered 97 times in the media since our January report. And IJ’s video on Gerardo’s case received almost 200,000 views on YouTube. In total, we have produced four videos in the last four months on civil forfeiture, receiving over 230,000 views.

IJ also spreads the word about forfeiture through our legislative engagement. Across the nation, IJ’s legislative team engages with policymakers to educate them and shape legislation based on our research and expertise. Since January, we helped spearhead two legislative victories in Arizona and Alabama, secured the introduction of IJ’s model legislation in New York and Minnesota, and provided testimony in Massachusetts on civil forfeiture.

IJ’s legislative engagement team served a crucial role in the passage of HB 2810 in Arizona. The strong legislation requires a conviction in criminal court to forfeit property in civil court, restores the presumption of innocence, bans officers from coercing owners to waive their property rights, abolishes law enforcement’s ability to forfeit property without a case going before a judge, and creates a prompt hearing for owners to request the return of their property.

This legislation demonstrates IJ’s ability to leverage our research to inform legislators, as our report Does Forfeiture Work? investigated Arizona and found the practice does little to fight crime. Instead, it creates a perverse incentive for law enforcement to forfeit money because they can keep the proceeds. Arizona forfeited more than $530 million over the past two decades. This abuse garnered bipartisan attention and support in both the state House and Senate—passing 57-2 and 29-1 respectively.

Arizona Governor Doug Ducey said in his signing statement that, “[HB 2810] ensures that property being taken is truly connected to criminal activity while innocent persons have the ability to get their property back.” This summary of the legislation reflects IJ’s research and approach to civil forfeiture. The government must prove guilt before forfeiting property and provide a process for obtaining forfeited property that respects due process.

In Alabama, IJ’s research also informed and shaped the passage of SB 210. The legislation takes a different approach from the one Arizona enacted. It prevents agencies from even seizing cash under $250 and vehicles valued at less than $5,000. This innovation prevents low-dollar assets from entering the expensive and complex forfeiture system. Civil forfeiture is often defended as a way to target drug kingpins, but IJ’s research helped reveal how many forfeiture cases involve small amounts of money. So instead of targeting drug kingpins, civil forfeiture often ends up securing thousands of low-level seizures that require individuals to litigate the return of $250 or an old car.

The new law also empowers district attorneys to raise those thresholds, which is something we expect they will do because it is uneconomical for them to litigate the transfer of title of such a seizure in civil court. Finally, the new law protects innocent owners—such as spouses and parents—by raising the standard of proof and flipping the burden of proof onto the government. This change will require prosecutors to prove that a spouse or other innocent owner claimant did not consent or know that her vehicle was used in a crime.

While IJ remains committed to dismantling civil forfeiture entirely, the legislation in Arizona and Alabama establishes protections for property owners while reinforcing due process. These reforms are important steps in the right direction and build momentum on which IJ can secure similar reforms in other states.

Such comprehensive reform is percolating in New York. The state legislature, comprised of a majority of Democrats, used IJ’s model criminal forfeiture legislation as the basis for authoring legislation. The legislation represents IJ’s platinum standard of reform—a law that would upend civil forfeiture and replace it with criminal forfeiture. Should New York pass such legislation, it would mirror New Mexico’s move to abandon civil forfeiture for criminal forfeiture. IJ got a nearly identical bill introduced in the Republican-controlled state Senate in Minnesota.

These uses of IJ’s model demonstrate not only IJ’s ability to garner support from both sides of the political aisle but also proves that our model shapes policymakers’ approach to ending civil forfeiture and replacing it with criminal forfeiture. We remain optimistic about these developments in New York and Minnesota and will continue to provide the expertise needed to guide reform to passage.

Finally, in Massachusetts, IJ is working with local partners to enact reporting legislation based on IJ’s model reporting act. Earlier in June, the Asset Forfeiture Commission invited IJ Senior Attorney Dan Alban to testify on civil forfeiture. For almost 90 minutes, Dan fielded questions from and provided recommendations to the special commission on how to reform the practice. Among Dan’s proposed solutions were replacing civil forfeiture with criminal forfeiture and upending the financial incentive that drives civil forfeiture. Dan also advocated for increased transparency in law enforcement’s reporting on civil forfeiture and referenced the filed legislation. IJ is optimistic about what recommendations the commission will embrace, particularly concerning improved reporting laws. This testimony once again demonstrates how states are turning to IJ for our expertise and insight on how to improve civil forfeiture.

The Alex C. Walker Foundation’s support enables IJ to actively engage in shaping and driving the national conversation against the unconstitutional power the government wields through civil forfeiture. 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/

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IJ Clients Paul and Jennifer Snitko
IJ Clients Paul and Jennifer Snitko display the contents of their safety deposit box, which the FBI seized.

Attachments
IJ Clients Paul and Jennifer Snitko
IJ Client Jerry Johnson
thumbnail IJ Client JJ

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Beth Stevens
Institute for Justice

Posted 3/31/2020 9:45 AM
Updated   7/10/2021 11:22 AM



 
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