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Senators Propose New Law to Curb Forfeiture Abuse

Over the years, handling asset forfeiture cases in Florida and Georgia, we have seen some eye-opening practices of police and other law enforcement agencies designed to take property from people for their own benefit. It is not uncommon for law enforcement agencies to take large amounts of money or other property from people when there is virtually no evidence a crime was committed and no hint of criminal charges. The forfeiture laws allow law enforcement agencies to do this, and they do so with the idea that they can either work out a settlement down the road or, in the case of smaller amounts of cash, the claimant will not bother to pursue the property or will not know how to pursue it. We have even seen cases where the police seize bank accounts without having a basis to arrest anyone but threaten arrests later for leverage during settlement negotiations.

Why do law enforcement agencies squeeze citizens this way and take their property with little to no regard for the laws and Constitution? Profit. Few things excite a police officer more than the prospect of forfeiting a nice car that is paid off that can be used as an undercover vehicle or some other purpose by that law enforcement agency. As long as these law enforcement agencies can directly profit from taking property away from people, they are going to do it. A lot.

Therefore, the obvious remedy to curb these abuses is to attack the motive, the profit motive. If it is so obvious, why hasn’t this happened yet? Well, it is difficult to get the government to limit itself, particularly when the thing they desire most ($$$) is at stake. In the past, federal law enforcement agencies were not allowed to directly profit from their seizures and forfeitures. That changed in the 1980’s, and as expected, the number of forfeitures increased significantly.

Two senators (Rand Paul and Tim Walberg) have proposed a law designed to limit the exorbitant number and value of forfeitures that are occurring today. The law would address the profit motive federal agencies have to seize and forfeit property. Under the proposed law, if a federal law enforcement agency forfeited someone’s property, the property would go into a general federal treasury fund that would not directly benefit that particular law enforcement agency. Since law enforcement agencies would not get to drive that nice car that is paid off or see that cash go directly into its account, they would be less likely to overreach and take people’s property for forfeiture without regard to whether a qualifying crime had been committed related to that property.

The proposed law would also provide free, appointed lawyers for people whose property was taken for forfeiture. Since forfeiture law is considered civil law, a person claiming property that has been seized does not have a right to an appointed lawyer. He/she would have to hire a lawyer for assistance. Providing a free, appointed lawyer for forfeiture cases would go a long way towards limiting forfeitures and helping citizens retrieve their money and property from the government. For instance, it is common for a police officer to pull over a vehicle, allege that there is an odor of drugs coming from the vehicle and seize any cash that they find in the vehicle. They will do this even if there are no actual drugs found in the vehicle, and no arrest can be made. If the amount of the cash is in the $5,000 range, the owner of the cash may not be able to hire a lawyer or it might not make sense to pay a lawyer a few thousand dollars in the hopes that he/she might get some or all of the cash back. In other words, police know that if they take a relatively small amount of cash, there is a good chance the owner cannot hire a lawyer or will not take the financial risk to hire a lawyer to assert his/her rights to that money. If owners are provided a free lawyer, as defendants are in criminal cases, many more of these questionable forfeitures of property would be challenged, which would be a disincentive for police to seize the property in the first place.

Keep in mind this is just a new proposal and is a long way from being passed. We are naturally skeptical that the government would pass a law that limits the government in an area where they can do their favorite thing- take money from people with little to no effort. Additionally, this would only apply to federal forfeiture cases. However, it is important for this issue to get attention, and if this proposed law does pass in some form, it is a step in the right direction.