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 Gerardo Serrano

Description

Though property rights sit at the foundation of our nation, there are numerous government practices that threaten this fundamental principle—perhaps none more so than civil forfeiture. Over the last 10 years, the Institute for Justice (IJ) has established itself as a pioneer in forfeiture law and premier defender against this abuse. Our litigation and media efforts drove forfeiture to national infamy, secured bipartisan condemnation, and increased legal protections for property owners across the nation. In 2019, we secured a monumental victory at the U.S. Supreme Court—ultimately expanding opportunities for reform across the nation.

Unfortunately, though we have effected meaningful change at every level of government, forfeiture remains a serious threat to property rights. Undaunted, IJ continues to leverage our expertise and resources to challenge this practice and win. IJ has helped solidify into law the idea that no American should lose their property without being convicted of a crime.

For example, as you know, IJ represents Tyson Timbs, the plaintiff in our 2019 Supreme Court victory. In our previous report, we noted that despite court victories at three levels, the Indiana Attorney General appealed our latest victory to the Indiana Supreme Court. We have since filed all necessary briefs for this return trip to the state Supreme Court, and oral arguments are scheduled for January 21, 2021. We are confident that we will win again at the state Supreme Court, and a victory there could be the final chapter in Tyson’s case.

In another case designed to end the government’s abuse of power, we continue to challenge unjust Fourth Amendment violations committed by the Drug Enforcement Agency (DEA) and Transportation Security Administration (TSA). Too often, the DEA and TSA work together to seize large amounts of cash deemed “suspicious” from airport travelers, such as IJ clients Terry Rolin and his daughter Rebecca Brown.

The DEA took Terry’s entire life savings of $82,373 from Rebecca when she was traveling to deposit the money into a joint bank account. IJ filed a class action lawsuit against both the DEA and TSA to challenge their unconstitutional policies of seizing cash from air travelers without probable cause. In an early victory, we secured the return of our clients’ money, with the agencies hoping to avoid further litigation. But this case is about more than returning money; it is about remedying violations of constitutional rights. The government cannot simply return victims’ money to avoid accountability, and our class action claims continue. As such, we have added two more named plaintiffs to the case who were victimized by these same unconstitutional policies. Last month, the DEA agreed to return the $43,000 it took from Stacy Jones of Tampa, Florida, at the Wilmington, North Carolina, airport, shortly after Stacy teamed up with IJ and joined our class action as the third named plaintiff. These federal agencies have returned the money they seized to all three IJ plaintiffs, but we will continue this class action lawsuit to protect the rights of others.

Meanwhile, innocent residents in Detroit and Wayne County, Michigan, are having their cars seized and ransomed back to them for thousands of dollars. The Alex C. Walker Foundation’s support helped IJ launch a case in February 2020 on behalf of clients Melisa Ingram and Robert Reeves, from whom the government took cars and other property based on other people’s alleged misbehavior. Shortly after we sued, Detroit law enforcement returned Robert’s car, along with $2,280 in cash they seized from him. Because IJ brought class action claims in an effort to keep our case alive, we added a third plaintiff, Stephanie Wilson, a single mother who lost two cars to this unconstitutional program. Our lawsuit, now on behalf of all Detroiters victimized by these abusive practices, will continue through the courts.

This case also marks the beginning of a new project for IJ: challenging administrative forfeiture at the municipal level. Detroit’s vehicle seizure and impoundment practices result in the automatic loss of property unless vehicle owners follow a specific and lengthy procedure created by prosecutors. This system, ultimately delays a timely appearance before a judge. After months, the county filed motions to dismiss our claims, but we met these motions with full force during oral argument in November, arguing that the government cannot seize property without a warrant, probable cause, or procedural due process. We expect a decision this month that will allow our case to proceed to a final decision.

Similarly, IJ represents Gerardo Serrano, who lost his car to another federal agency, Customs and Border Protection (CBP). In 2015, while crossing the U.S.-Mexico border, CBP seized Gerardo’s truck, and for two years he did not see a day in court. After he partnered with IJ, the CBP attempted to shut down the case by returning Gerardo’s car. IJ defeated these arguments and is now fighting to ensure that hearings are provided promptly after seizures—not two years after the fact.

The 5th U.S. Circuit Court of Appeals ruled against us, holding that due process does not require the government to provide a prompt post-seizure hearing. IJ quickly filed a petition with the U.S. Supreme Court to appeal this decision. Although the circuit court’s decision was unfavorable to IJ’s claims, it positions us extremely well for this petition and provides us with an opportunity to set important precedent at the highest court in the land. The 5th Circuit’s opinion not only creates a circuit split with other federal courts, but it also directly conflicts with an opinion written by then-Judge Sotomayor in 2002, which held that there is a right to a prompt post-seizure hearing for seized automobiles. IJ is optimistic that the U.S. Supreme Court will grant certiorari on this critical issue.

IJ’s fight against civil forfeiture not only aids those who have been victimized by government action. We also strive to enhance transparency surrounding this practice, and this is the foundation of our case in Lancaster, Pennsylvania. We represent Carter Walker of LancasterOnline, a news outlet attempting to secure the release of Lancaster County’s civil forfeiture records. The District Attorney’s office refused the request based on irrelevant exceptions to a misapplied law. Unfortunately, civil forfeiture occurs largely in the dark in Pennsylvania, so these records are crucial to uncovering how prevalent the practice is. Residents have no other means of knowing what is being taken and how the proceeds are spent.

Carter and LancasterOnline received a favorable initial ruling that the District Attorney’s office appealed, and that is when IJ stepped in to represent both Carter and LancasterOnline. In early December, we argued before the Commonwealth Court in Pennsylvania that the DA’s office has no right to conceal this information and that our clients’ requests violate no part of Pennsylvania’s privacy laws. Our arguments positioned us for success, and we are cautiously optimistic given the judges’ responses.

We also have an update in one of our most successful civil forfeiture lawsuits—a challenge to Philadelphia’s forfeiture machine. As you may recall, after half a decade of litigation, the city agreed to reform the perverse financial incentives that plagued civil forfeiture procedures. Initially, IJ secured a $3 million fund to compensate innocent Philadelphians whose property had been wrongly confiscated. Our final hearing occurred in mid-October, and we continue to negotiate a larger award out of the settlement fund for victims. There have been over 2,300 claims filed by forfeiture victims, and IJ’s victory in this case will ensure that they are justly compensated for the abuse endured under the city’s widespread abuse of power.

Along with our progress in ongoing cases, we launched a new case in July targeting civil forfeiture in South Carolina, where forfeiture is one of the biggest threats to property rights. Travis Green knows this from experience. In 2017, prosecutors seized and tried to permanently take Travis’ money. IJ’s landmark Supreme Court victory in Timbs empowered the court in Travis’ case to strike down civil forfeiture across the state in a landmark ruling. But because prosecutors had too much money on the line to let the decision stand, they appealed. IJ has now joined with Travis to defend his previous victory and the rights of all South Carolinians by asking the state Supreme Court to affirm the lower court’s decision to strike down civil forfeiture across the state. We have filed the necessary initial briefs on behalf of Travis, and our team is preparing for oral argument on January 13.

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

While IJ directly challenges government abuse through litigation, we also ensure that the stories of our clients reach far beyond the walls of the courtroom. Through strategic media placements, original research, and legislative engagement, our team uncovers and shares how local and federal governments disregard constitutional rights.

On the research front, we published Jetway Robbery: Homeland Security and Cash Seizures at Airports in July 2020. The study investigates how the Department of Homeland Security (DHS) uses civil forfeiture to seize money from unsuspecting travelers at the nation’s airports. The first study to use data from the Treasury Department’s forfeiture database, it finds that between 2000 and 2016 DHS agencies seized over $2 billion in currency. In most cases, people’s cash was taken only because they failed to file required paperwork. This research adds to the growing body of evidence that forfeiture puts innocent people’s property at risk without appearing to advance serious crime-fighting objectives.

Just last month, we released the eagerly awaited third edition of our landmark forfeiture report, Policing for Profit. (The first and second editions were published in 2010 and 2015.) The third edition presents the largest ever collection of state and federal forfeiture data—17 million data points covering 45 states, D.C., and the federal government. In addition to revealing that states and the federal government have forfeited at least $68.8 billion since 2000, the report grades the civil forfeiture laws of each state, D.C., and the federal government based on the portion of forfeiture proceeds directed to law enforcement and the protections offered to property owners.

The report also presents new analyses adding to the growing body of evidence showing forfeiture does not work: It does not fight crime or target criminal kingpins. But there is good news, too: The report finds there was no increase in crime after New Mexico abolished civil forfeiture and the profit incentive in 2015, suggesting strong forfeiture reform does not compromise public safety.

Policing for Profit uncovers much more than these headline findings. Our unparalleled, in-depth research is and will remain the go-to forfeiture resource for lawmakers and opinion leaders across the nation. We are working to deliver copies to state and federal legislators, ensuring that they have the facts they need to spearhead meaningful reforms.

Furthermore, we published Policing for Profit alongside a national exclusive at ProPublica, an outlet that reaches a large, diverse audience across the nation. This release coincides with our overall media strategy concerning civil forfeiture. We had numerous media hits about our forfeiture work since our last report, including articles in the Washington Post, Miami Herald, and Atlanta Journal-Constitution.

In addition to traditional media, we also released one podcast episode and a mini documentary on civil forfeiture. On our in-house podcast Deep Dive, IJ Senior Attorney Dan Alban and Senior Researcher Jennifer McDonald discussed civil forfeiture and our Jetway Robbery report. Our presence on new media platforms complements our established voice in traditional media and reaches new audiences with our findings.

Media clout aids our legislative engagement efforts as well. We continue to challenge laws that enshrine civil forfeiture and empower governments to unjustly take Americans’ property in state legislatures and at the federal level.

For years, IJ’s lawyers have worked at the federal level to raise civil forfeiture to national prominence in Congress. Toward the end of 2020, the DUE PROCESS Act was introduced, and IJ’s meetings with legislators throughout Congress helped bring to light the injustice of the issue. The bipartisan support for reform will position the legislation well when it is re-introduced in session this year.

Indeed, IJ continues to work alongside groups as diverse as the American Civil Liberties Union and the Competitive Enterprise Institute to pursue forfeiture reform. This also included meeting with friends regarded as “pro-law enforcement.” For example, Senior Attorney Rob Frommer spoke on a panel at the Heritage Foundation exploring the issue. IJ’s powerful ability to rally and unite organizations ensures that civil forfeiture injustices do not go unchallenged.

At the state level, IJ is the leading advocate for forfeiture reform and will continue to engage with legislators. Our legislative team convinced legislators in seven jurisdictions to consider 13 bills concerning civil forfeiture last year. Though nothing passed in sessions dominated by concerns about COVID-19, these efforts sowed the seeds for reform when states’ sessions start this year. IJ will be on the front lines leveraging the attention we have garnered from legislators about forfeiture reform.

Most notably, IJ has served as an invaluable resource on ending civil forfeiture to legislators in South Carolina. The Speaker of the House in South Carolina released an interim study on civil forfeiture and commissioned study groups to examine the issue. IJ’s Senior Legislative Counsel Lee McGrath met with the study group to discuss the report, providing insight and sharing IJ’s model criminal forfeiture act, findings, and more.

In New Hampshire, our team is working with state Senator Harold French to introduce a bill that will require the Attorney General to report more explicitly on seizures and forfeitures in the Granite State. This bill will highlight the need for reform and unveil the gross abuse forfeiture allows. Similarly, bills drafted in Alabama, South Carolina, Minnesota, and New York are based on IJ’s model legislation that ends civil forfeiture and replaces it with criminal forfeiture. In recent years New Mexico and Nebraska used IJ’s model to enact the gold standard of reforms. IJ’s leadership was vital to the reform victories in these states, and we strive to export our success to other states. IJ’s model will be considered in upcoming legislative sessions in the four states outlined above and others.

We have initiated conversations with state legislators in Alabama, Minnesota, New York, South Carolina, South Dakota, and Wyoming. These include relationships with new and incumbent legislators. We also remain active with like-minded advocates and groups in Nevada and Mississippi (e.g., Empower Mississippi). Through these conversations and relationships, we will guide states toward reform based on sound research and experience.

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/

  Related Organizations
Institute for Justice  


IJ Client Robert Reeves

Attachments
IJ Client Robert Reeves
IJ Client Gerardo Serrano

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 3/31/2020 9:45 AM
Updated   5/17/2021 12:33 PM



 
  © 2021 Alex C. Walker Foundation       Search   Sign In