Published on:

Attorney General Eric Holder Issues a New Order Addressing Asset Forfeitures, But it Doesn’t Do What Many Seem to Think it Does.

As criminal defense and asset forfeiture attorneys in the Jacksonville, Florida area, we have seen the many different ways the government will take and forfeit someone’s property under the state or federal asset forfeiture laws. These cases have ranged from questionable searches seemingly designed to seize and forfeit certain property to cases where property is taken but no criminal arrests are ever made to outright thefts by the government of a person’s property. Unfortunately, the government’s taking of property is an area that has not received the attention that it deserves. When the police go and take a person’s cash because he/she is carrying a large quantity of it without even contemplating an arrest and with no indication that the person committed any crime, that should get some scrutiny. But, it rarely does.

Attorney General Eric Holder recently made an announcement about a rule change regarding certain asset forfeitures. The new rule prohibits federal agencies from adopting state asset forfeiture cases, except for those cases involving public safety, i.e. guns, explosives, child pornography. After the new rule was published, we saw a lot of articles on the Internet indicating this is the end of asset forfeitures, in some form of another. It isn’t. Not even close.

First, let’s talk about what this new rule does not address. Before we do that, it is important to understand two terms. Seizure – when the police seize one’s property, the police are taking possession of that property. Forfeiture – when the police forfeit one’s property, they are assuming ownership of that property. If the government successfully forfeits property, that property now belongs to them. Asset seizures and forfeitures are conducted by police and other law enforcement agencies at the local, state and federal levels. State asset forfeitures laws apply to the state and local law enforcement agencies; federal asset forfeiture laws apply to the federal agencies.

The new rule articulated by Mr. Holder does not appear to limit federal asset forfeitures in any way. The federal government is still free to seize and forfeit assets in the same manner they did in the past, which is a lot and often. Additionally, this does not prohibit any local or state agency from seizing and forfeiting assets. This does not, in any way, affect those states that do not have rules that limit how state and local agencies can use the money and other property that they seize and forfeit.

So, what does this new rule do then? Well, we have to go back and understand why Mr. Holder enacted this new rule. One obvious problem with asset forfeitures is that it gives law enforcement agencies a profit incentive to take people’s property. If the state agencies can use that property for their own benefit, they obviously have an incentive to take more and more of it. This is why we see cases where police seize property without even arresting anyone for a crime. If there are two things government agencies and officials love more than all else, they are government and other people’s money. It is no secret that if a vehicle has an ounce of marijuana in it, the police are more likely to try and seize the vehicle for forfeiture if it is a nice vehicle, it is paid off, and someone in that agency can become the primary driver of that vehicle after forfeiture.

Due to the presence of this obvious profit motive, more and more egregious seizures of property were taking place. Some states decided to try and curtail these unlawful police seizures of property by addressing the conflict of interest, i.e. the profit motive. Some states passed laws saying that most of the money and other property seized and forfeited by state and local law enforcement agencies could not go to the direct benefit of those law enforcement agencies. Instead, the forfeited property would go to the benefit of a general state fund or an education fund. For example, some states have passed laws limiting the seizing agency’s asset forfeiture profit share to 20% of the money or value of the property seized. If a county police officer seized $10,000 from someone allegedly involved with illegal drugs, the county police department could only keep $2,000 of that forfeited money for themselves. The other $8,000 would go into a general state fund that did not directly benefit that county police department. Since the police were not seeing the direct and immediate benefit of these forfeitures, they would be less likely to overreach and take people’s property.

Unfortunately, as we have come to understand, some law enforcement agencies work under the theory that laws are for other people to follow. To circumvent the state laws limiting how much state and local law enforcement agencies can profit from their asset forfeitures, these law enforcement agencies worked out deals with federal agencies. Since the state laws regarding asset forfeitures do not apply to federal agencies, the state and local law enforcement agencies would seize property just as before, but rather than have a state agency pursue the forfeiture case, the seizing state agency would hand the case over to a federal agency to pursue the forfeiture. The seizing state agency would pass the forfeiture case over to the federal agency with an agreement that the state agency would receive a higher percentage of the profits from the forfeiture than the new limiting state law would allow. In the example above, the county police department was limited to gaining $2,000 if the forfeiture case was pursued on the state level. Alternatively, that county police department could give the forfeiture case to a federal agency, unaffected by state asset forfeiture laws, with an agreement that the county police department receive 80% of the forfeited money. This was clearly done to circumvent the new state forfeiture laws and allow state and local law enforcement agencies to profit from asset forfeitures as in the past and more than the new state laws allowed.

Mr. Holder’s new rule prevents federal agencies from taking, or adopting, these forfeiture cases from state and local agencies in order to circumvent state laws limiting how much state and local law enforcement agencies can profit from these asset forfeitures. It is unfortunate that the federal government has to enact a rule preventing the federal government and state and local government agencies from disregarding rules designed to limit how they take property from the people who they are supposed to serve. However, because these government agencies need to be monitored and governed this way, it is a good and necessary rule. On a more global level, it is also encouraging to see the federal government begin to address a clear problem that goes largely unnoticed.

That being said, it is still important to understand this is not some sweeping paradigm shift that will drastically, or even noticeably, change the number of asset forfeiture cases nor the often questionable methods government agencies use when interacting with people in an effort to take and assuming ownership of their property..