Law Enforcement Has a License to Steal
from You

Time was when the roads between villages and towns were perilous. One risked being set upon by highwaymen who'd make off with all your worldly goods. Fortunately, those days or gone — or so you thought. Fact is, across the country there are bands of highwaymen newly risen to steal from you as you pass through their territory. But they are not spoken of as "highwaymen". They are called "police".

Response to the demonstrations in Ferguson, Mo., made Americans aware of the ominous militarization of police forces around the country. But the armament we saw there and in the shutdown of Boston after the marathon bombing generally stays in the barn. The greater everyday danger for motorists is police patrolling the highways who stop people on their way elsewhere, search their cars and confiscate whatever they find. For the victims, the fight for the return of money, property and even the cars themselves can take a year or more.

And it is legal. The police operate under the protection of what is called civil asset forfeiture law. Its roots go back to 17th Century British Admiralty law used for seizing ships. Its early use here was for the similar purpose of combating piracy and smuggling when capture of violators could be difficult. The Supreme Court's justification was that it was the “vessel which commits the aggression [and] is treated as the offender". The law then lay largely dormant in this country until it was adapted here in the 1970s for the purpose of crippling the drug trade by seizing property — boats, aircraft, vehicles, houses — inferred to have been bought with the illegal proceeds of drug trafficking. Applied for that purpose, it has been a powerful weapon.

But after 9/11 the Homeland Security Department encouraged local law enforcement to join its hunt to keep America safe from terrorists and anyone suspect of transporting immigrants, drugs or other contraband. As an inducement, the Justice Department promoted the Equitable Sharing Program it had set up in 1984 that collaborates with local police allowing them to keep up to 80% of confiscated property with the freedom to do with the proceeds as they please. Local and state police units around the country have since become addicted to this new form of income. An attitude by police seems to have arisen that, in this tight economy, they are entitled to the booty confiscated from home and auto searches. That their prey may be entirely innocent of any wrongdoing is swept aside as if these seizures are just the price some hapless individuals must pay for the greater public weal.

Investigative work by The New Yorker and The Washington Post reports that a cottage industry has grown up that trains police how to stop and seize. Their accounts relate the experiences of motorists caught in police fishing expeditions from which this composite emerges:

Police typically haul drivers off the road for bogus violations like driving too close to the white line, or driving too long in the left lane without passing. Then follows a request to search the car. Motorists can refuse, but out there on the blue highways of America, good luck with that. If anything is found that the trooper or officer can characterize as suspicious — a large sum of money, for example — the car's occupant is told either to sign a waiver that forfeits whatever of value is found or face felony charges. Most sign and go on their way. The few who do pursue return of their property typically find themselves waiting a year or more.

These are civil, not criminal, matters. Under forfeiture law the burden of proof is reversed: It is your property that is guilty until you prove it innocent of any criminal activity, until you prove it was acquired legally. The actions are taken against the property itself, leading to strangely titled lawsuits such as County of Yancey v. $2,578.00. And because these are civil cases, the state does not provide counsel to those unable to afford a lawyer. Quite the opposite in Washington, D.C., where one must pay an entry fee just to challenge a seizure in court. Rather than run up the legal bill, most just give up. “Forfeiture cases…are almost impossible to fight,” said one lawyer after devoting hundreds of hours to a case. “It’s the Guantánamo Bay of the legal system.”

People innocent of any crime do carry cash in large amounts when cash is required by the seller in a business transaction. Cars often change hands for cash, but a large wad of bills are prime pickings for police who are allowed under the forfeiture law to make the prima facie assumption of drug deals or money-laundering.

So $75,000 was taken by the police that was on the way to buy a Chinese restaurant in Louisiana. It took 10 months and heavy legal fees for the owners of the money to get it back; the restaurant opportunity was lost.

Two Latino men were stopped on I-95 by a Virginia state trooper who found $28,500 they said had been collected from congregants of their church in Baltimore. The money was for building a church in El Salvador, but the ignored their explanation and treated it as of criminal origin. Following the shakedown script — this particular trooper being a member of an organization that trains other police in interdiction technique — the two were told to sign a roadside waiver that relinquished ownership of the cash or else be detained and charged with a felony. They did get the money back three months later after substantiating its origin and with the help of lawyers working without fee.

Police budgets had been slashed in Detroit, a city that would later file for bankruptcy. In Detroit in 2008, an event hosted by the Contemporary Art Institute was invaded by 40-or-so police claiming that the gallery lacked a permit for dancing and drinking. Guests were ordered to surrender their car keys; the police impounded 44 vehicles and charged each owner a $900 ransom with ownership forfeited if not promptly paid. The ACLU sued and the seizure was ruled unconstitutional, but in the interim, when cars are taken and held, people are badly incapacitated, unable to commute to jobs, take children to school, shop for food, and no compensation is paid them for the disruption.

If these incidents seem the exception, consider that since expansion of the program after 9/11, the Post article says the Justice Department has participated in 61,998 cash seizures with state and local authorities keeping $1.7 billion of a total haul of $2.5 billion. That's an average of over $40,000 per seizure, so clearly drug-trafficking and money-laundering are involved and the program can declare some measure of success. But half of the forfeitures were less than the median $8,800. Philadelphia's average take is $550 says a Wall Street Journal editorial that focuses on that city. In Georgia, 58 police jurisdictions reported more than half of takings were less than $650.

Police departments across the country have become reliant on forfeited property to fill the holes in reduced budgets. A federal ban on the practice, or on using proceeds to pay salaries, is routinely flouted.

Some states like Maine, Missouri, North Dakota, and Vermont restrict how police can use the proceeds of forfeiture, which reduces incentives for abuse. It is mostly the southern states such as Virginia, Georgia and Texas where use is unrestricted and abuse runs highest.

The Post's research counted 298 departments and 210 task forces that since the 2008 plunge have funded 20% or more of their budgets from confiscation. The New Yorker said Texas counties fund up to 40% of their budget from the practice.

The perversion is that confiscation — preying on the general public — has become a profit center. The Justice Department's Equitable Sharing program has given police the incentive to steal. No less than the executive director of the Sheriffs’ Association of Texas said to the New Yorker that, “It’s definitely a valuable asset to law enforcement, for purchasing equipment and getting things you normally wouldn’t be able to get to fight crime.”

Philadelphia is a major abuser of the law. Police and prosecutors took in $64 million between 2002 and 2012 in a state that allows them to keep 100% of the loot, says that Journal edit. It's been used to pay for 20% of the Philadelphia District Attorney's general budget and the staff's salaries. Supplicants who hope to get their money back find themselves appealing not to a judge but to their adversary, a prosecutor in an office at City Hall.

The Justice Department has done well from its Equitable Sharing program, seemingly not overly bothered with whether forfeiture targets might be actual drug mules or just innocent civilians. Its take from the nation's police departments energetically separating people from their property — $27 million the year after the program started — rocketed to $4.2 billion in 2012. State laws may forbid forfeiture, as does North Carolina, but local police need only call in someone from Justice to make it a federal matter that trumps a state's prohibition. That's how one North Carolina police unit could skirt the state's law and spend $44,000 of confiscated drug money to buy a surveillance drone.

The easy money makes cops go rogue. A vice squad out of Bal Harbour, Florida, roamed the country setting up money-laundering sting operations in league with federal agencies, splitting the take. "Very lucrative, they got fancy boats, fancy guns and cars and good stuff like that", said a former South Florida prosecutor — specifically, $100,000 for a 35-foot boat powered by three Mercury outboards, $108,000 for a mobile command truck equipped with satellite and flat-screen TVs, $25,463 for next generation Taser X-2s, a Chevy Tahoe, Apple computers, first class airfare to their heist destinations, and $21,000 spent on a beach party. In just three years they brought in $56 million before the Justice Department blew the whistle. That prosecutor said squads like this are not uncommon, often venturing out from communities that don't have drug or laundering crime but whose police departments need the money.

Certainly as practiced in roadside stop and search, civil forfeiture is unconstitutional, violating unreasonable the search and seizure of the 4th Amendment and the due process clause of the 14th. Those amendments pertain to people, however, which may explain the ruse of suing the objects and not persons. Moreover, the Constitution is often spoken of but not honored at the small town level where judges are reluctant to go up against their own police who might be their neighbors as well.

But at higher levels, too, law enforcement officials are loath to give up the honey pot that's been paying their bills. So we read of the Washington, D.C., Attorney General acknowledging the due process conflict yet voicing concern that millions of dollars “could very easily be lost” to the running of his office posing and “an unreasonable burden” if greater proof were required that forfeitures were of criminal original.

Newspaper accounts of corruption did prompt Congress in 2000 to allow owners to recover their legal costs after successful lawsuits. But they did not eliminate the sharing of money between federal agencies and local police that was called the "perverse incentive" to steal from the public they are sworn to protect. That reform was dropped owing to what former representative Barney Frank of Massachusetts said was a voracious lobbying campaign by none other than the Justice Department itself.