"Policing for Profit" - the improper use by some law enforcement agencies of our civil forfeiture laws

By Marc Scaringi of Scaringi Law posted in Criminal Law on Thursday, June 18, 2015.

In Philadelphia, authorities forcibly seize a family's home and evict a mother and father after their teenage son is accused of selling $40 worth of drugs outside the home. Similarly, a woman, who is disabled and caring for her three children, brother and sister, is threatened with the loss of her home after her estranged husband is accused of selling drugs from the location.

A New Jersey prosecutor holds a seminar for police, advising officers that cars can be seized in non-drug crimes such as shoplifting and statutory rape. In New Mexico, a deputy city attorney holds a similar training, calling seized assets "little goodies.''

Unfortunately, these are not isolated cases.

Known as civil forfeiture, the practice of law enforcement seizing assets from those accused of drug crimes emerged as a tool during the War on Drugs in the 1980s and 1990s. It was promoted as a way to take down "Drug Kingpins" by confiscating the money and property they obtained through illegal drug trafficking. But in recent years civil forfeiture has morphed into a way some state, local and federal law enforcement agencies look to add to their budgets by going after property even when the owner has no knowledge of or involvement in the crime.

The City of Philadelphia began forcibly evicting owners from their homes without notice and a hearing - a clear violation of the Constitution - in order to expedite the seizure and sale of the homes. In 2011 alone, the Philly DA's office filed 6,500 forfeiture petitions. From 2002 to 2012, the Philadelphia District Attorney took in over $64 million in forfeiture and in an obvious conflict of interest it used $25 million of that to pay salaries - including the salaries of the prosecutors handling the forfeiture actions!

Disturbingly, newly confirmed U.S. Attorney General Loretta Lynch has said she has no problem with civil forfeiture. In an editorial entitled "Loretta Lynch's Money Pot,'' the Wall Street Journal pointed out Lynch's office had been a major forfeiture operation, bringing in more than $113 million between 2011 and 2013.

Indeed, while serving as U.S. attorney for the Eastern District of New York, she seized more than $400,000 from two brothers running a company selling candy and snack foods to small Long Island retailers. No charges were ever brought against the company or the brothers. After holding the money for over two years, Lynch's office finally returned the money to the brothers in January of this year after finding no evidence the brothers had done anything wrong.

The Virginia-based Institute for Justice represented the brothers. It also filed a class action lawsuit against the Philadelphia district attorney, causing that office to back off the home forfeiture cases mentioned above. Just last month, a federal district court judge denied the Philadelphia District Attorney's motion to dismiss that lawsuit challenging its civil forfeiture practices.

The good news is that in Pennsylvania and nationally, some dedicated lawmakers are fighting for change.

On June 4, 2015, State Sens. Mike Folmer, R-Lebanon and Anthony Williams, D-Philadelphia introduced SB 869 to limit civil forfeiture to those cases where the owner is convicted of a crime. Additionally, prosecutors would have to show the convicted person's property was used in or derived from any proceeds obtained directly from the commission of the crime.

At the national level, U.S. Sen. Rand Paul, R-Kentucky, reintroduced the Fifth Amendment Integrity Restoration act, or FAIR. Among other reforms the FAIR act increases the burden of proof the government must meet in order to forfeit the property. Further, the bill transfers the burden from the owner to the government to prove the owner either used the property in the commission of a crime or knowingly consented or was willfully blind to its use.

To remove the incentive law enforcement agencies have to engage in "Policing for Profit," FAIR would require assets to be turned over to the U.S. Treasury; Folmer and Williams would have assets turned over to either the state or county treasury, depending on the agency involved.

If someone is convicted of a crime and they have assets connected with that crime, I have no problem seeing those assets forfeited. But civil forfeiture has warped into a bludgeon that is raining blows on the innocent and perverting our justice system in requiring owners to prove they have done nothing wrong.

I urge you to write your senators and representatives and the state and national level and ask them to support state senators Folmer and Williams and U.S. Sen. Rand Paul in their efforts to reform our civil asset forfeiture laws. Let them know that you will not idly stand by as our constitutional protections are eroded.

Our country's founding fathers wrote the Constitution and the Bill of Rights to protect citizens from the government's seizure of their property without due process of law. We owe it to them to protect these hard fought and long-cherished rights.

If you're facing a civil forfeiture action or are in need of other legal assistance, Marc A. Scaringi can be reached at 877-LAW-2555 or at info@scaringilaw.com

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