There have been several headlines of late regarding civil forfeiture.  It is a fairly complex legal and social issue, and by no means am I an expert, but I thought I would throw my two cents in an attempt to clarify some confusion my clients have voiced.  Let me try to answer three questions: 1) What is civil forfeiture? 2) Why is it making news? And, 3) How might it affect you?

What is Civil Asset Forfeiture?

Civil Forfeiture is when law enforcement and the courts work in concert to take an asset from a person they believe used or acquired that asset from criminal activity.  When I say asset I mean cash, bank funds, personal property (cars, boats, computers, etc.), or real property (houses, buildings, or land).  The point of this is prevent drug dealers from benefiting financially from activities, and to use their assets to fund the war on drugs.  Let me give you an example:

A person transporting drugs gets stopped for speeding.  The person has warrants, so they are taken into custody.  When the vehicle is legally searched (inventoried) before it is towed, the police find a large quantity of heroin.  The person is arrested and convicted for trafficking heroin.  The police then file for civil asset forfeiture of the vehicle, any cash, and any other personal property that is in the vehicle.

Why is it making news?

Recently there have three big changes.  The first one happened about six months ago.  That is when the Department of Justice (the Feds) decided to get out of the business of civil asset forfeiture for States.  Up to this time, the DOJ would handle all of the Asset Forfeiture and then give a sizeable cut back to the state police agency that originally confiscated it.  For several reasons, the DOJ decided that it wanted out of this business and the State’s had to take over this work, but they wanted to make it easier so they have been passing laws and judicially making laws to make it very easy to make this asset grab.

The first one was in the State of Oklahoma.  The legislature passed a law that allowed the State Troopers to carry modified credit card swipe machines.  The purpose of this is to allow them to swipe debit cards, gift cards, and cash cards and take every cent on them.  Literally they could take every cent off your Starbuck’s gift card, and the worst part is that the charge on the card will look anonymous.  On the positive side, they can’t reach into actual bank accounts, but if you received a cash bonus from your employer on a Visa/MC Debit card, they can siphon it dry.  Now they claim they are only authorized to do this if they have arrested you of a crime that you could profit from, but this hasn’t been defined anywhere.  Also, what about due process?  How are they able to take your assets without a conviction?  What happened to innocent until proven guilty?

This leads us to the second recent Court made law, out of Texas.  The Texas Supreme court has decided that Civil Asset Forfeiture is above the U.S. Constitution.  They decided (http://www.txcourts.gov/media/1386417/140692.pdf) that if the criminal charges are thrown out due to an illegal (unconstitutional) search and seizure then it is still okay to keep all of the assets confiscated, in this case a Lincoln Navigator.  That’s right, the Texas Supreme Court has created law by saying that Assets Forfeited as part of an arrest, does not have to be validated by a conviction.  What was I saying about innocent until proven guilty?

How might this affect you?

I don’t think I have to go into any great detail at this point.  I think it is obvious, that if you are arrested, you have a chance of having all of your assets confiscated and forfeited to the State.

What can you do? 

First, and foremost, stay out of trouble and away from drugs because that is the target these laws are attempting to hit.  Second, contact your State representatives and let them know that you like the U.S. Constitution and would prefer it if they would stop coloring outside the lines.  This type of freelance interpretation of the U.S. Constitution stinks, whether done by Liberals or Conservatives it makes for fewer freedoms and more State and federal control.  Due process and the belief that people shouldn’t be punished until convicted must stay a cornerstone of our criminal legal system, otherwise we might as well have lost the “Cold War” or WWII for that matter.