Without accusing him of a crime, police took Robert Reeves’ car, his two cellphones and all the cash in his wallet.
The Detroit father of five had just visited a work site to interview for a construction job. The contractor was allegedly using stolen equipment. Though Reeves had no knowledge or involvement, cops used his meeting as a pretense to shake him down.
That’s what passes for policing under civil asset forfeiture, a once-obscure legal process that ramped up following the congressional passage of the 1984 Comprehensive Crime Control Act. The law made it easier to seize property and created a perverse incentive: Under “equitable sharing” agreements with federal authorities, police agencies were allowed to sell what they seized and pocket most of the profits.
In February, Detroit police returned Reeves’ 1991 Chevrolet Camaro and his $2,280 cash after he joined the Institute for Justice car forfeiture class-action lawsuit against the city and county. If officers wanted to keep Reeves’ customized car, they’d face precious few procedural hurdles.
Forfeiture lawsuits are filed against the seized property itself, not its owners. Inanimate objects are listed as defendants in rem, leading to comical case names such as United States v. Twenty-Three Firearms; United States v. 2014 Ford Edge Utility Vehicle; and United States v. 2,100 Pounds, More or Less, of Meat Carcasses, Parts of Carcasses and Meat Food Products.
There’s nothing funny about the uphill battle citizens face to reclaim their belongings.
“After property has been seized, the burden of proof shifts to the owner, who must prove that the property was not involved in nor obtained as a result of illegal activity,” the Cornell Law School Legal Information Institute explains.
Opposition to civil forfeiture abuse has picked up steam. An October 2014 segment of HBO’s Last Week Tonight With John Oliver describing forfeiture laws racked up 14 million YouTube views. The Washington Post, ProPublica and the Pulitzer Center stoked outrage over the practice, introducing readers to dozens of hapless forfeiture victims like Robert Reeves.
In January 2015, then-Attorney General Eric Holder limited forfeiture to cases that result in criminal charges against property owners, a meaningful curb on the power to snatch people’s stuff. But the Justice Department under then-Attorney General Jeff Sessions rescinded that restriction in July 2017.
Police reform became a national rallying cry after George Floyd’s May 25 killing in Minneapolis. While chokeholds, use of force and unconscious bias led the conversation, civil forfeiture is relevant in the fight for racial justice.
In South Carolina, African-American men were targeted in 65 percent of forfeiture cases from 2014-2016 despite accounting for just 13 percent of the state’s population.
Before the House of Representatives passed the George Floyd Justice in Policing Act last month, Rep. Warren Davidson, R-Ohio, introduced a House Rules Committee amendment to fix forfeiture. His legislation would have required a criminal conviction in order to claim assets. In cases where the convict didn’t own the seized property, Davidson would make the government “prove by clear and convincing evidence that the innocent owner had actual knowledge of the underlying crime giving rise to the forfeiture.”
Democratic lawmakers failed to adopt the amendment. Like Davidson’s reform bid, the next best chance for congressional action is a Republican effort.
Sen. Rand Paul, R-Ky., filed a retread of his 2014 Fifth Amendment Integrity Restoration Act, which would prevent policing for profit by ending the feds’ revenue-sharing agreements and require a higher evidentiary standard in order to uphold a forfeiture in court. The original proved unpopular with establishment Republican Party figures who see cops as a core constituency.
Rep. Tim Walberg, R-Mich., introduced companion legislation in the House. Though a dozen Democrats and eight Republicans signed on as co-sponsors, the bill is bottled up in committee and doesn’t appear to enjoy leadership support.
Asset forfeiture reform could be a rare bipartisan success. Yet Senate Republicans and House Democrats seem content to sit on their hands.
Due process doesn’t clash with genuine crime fighting. When investigators can prove that cars, cash and homes are being used for illegal purposes, they obtain search warrants and seize defendants’ property. But items collected this way are stored in evidence lockers, not placed on the auction block as a departmental fundraiser.
Which kind of cops do you want: diligent detectives or road pirates?
— Corey Friedman is an opinion journalist who explores solutions to political conflicts from an independent perspective. Follow him on Twitter: @coreywrites. Click here to read previous columns. The opinions expressed are his own.