DRAMATIC CHANGES IN CIVIL FORFEITURE LAWS
BY ALBERT L. DIGIACOMO | FBI NA #186
In the aftermath of the Ferguson unrest, the Obama Administration, through the Attorney General’s Office significantly diminished the availability of “equitable sharing” of federally forfeited assets. Some offered that the reason was an appearance that local law enforcement was “militarizing” their departments through federal asset sharing revenue, commonly called adoptions. Other opposition was rooted in the concept that law enforcement forfeiture actions had become a self- serving encroachment on an indivisible’s property without adequate due process.
In the Trump administration, his past Attorney General had breathed new life into equitable sharing for local law enforcement. The Sessions’ changes in federal adoptions were timely since many states have now altered the asset sharing process with local and state law enforcement, substantially diminishing the civil asset forfeiture process and distribution. And a new case just granted certiorari by the Supreme Court may have broader implications for all remaining states in the area of civil asset forfeiture.
Civil Judicial Forfeiture is a statutory process that converts legal ownership of seized assets from an individual charged with a crime to state or the federal government. This legal process is placed against property (in rem), meaning “against the property,” not the individual (in personam), “against the person.” “In personam” forfeitures require a criminal indictment, “in rem” forfeiture action require no criminal charges and the proceedings are administered at a civil hearing. Most of the controversy involving abuse in asset forfeiture is directed at the “in rem” method. This type of seizure describes the “property” as the offender of the criminal action. In these cases, the government must show in civil court that the property was used as the instrument of the crime but, up until recent reforms, no criminal conviction was required.
Legal challenges to Civil Asset Forfeiture:
In the past five years, the legal and academic communities have presented the public with a multitude of problems that they saw with current civil forfeiture practices. They assert that the public has been harmed and offered some convincing cases of abuse to support their position. The legal battles include the traditional application of a lower standard of proof, innocent ownership, and disproportional seizures when compared to the underlying criminal offense.
Standard of Proof:
Defendants in a criminal action may be acquitted of the all underlying charges but lose their property to the government under the lower, civil court, standard of proof. i.e. preponderance of evidence. This was viewed by critics as a “lose-win” situation for law enforcement since the police were still able to effectively seize assets even after failed criminal prosecutions. To address this, two dozen states have made it harder for authorities to take property from individuals without first securing criminal convictions. Other states, (Utah, Kentucky, Michigan, and Nevada) have modified their standard of proof to “clear and convincing”, a higher burden than the preponderance level. Three states: North Carolina, New Mexico, and Nebraska, have abolished civil forfeiture entirely. In all, since 2014, 29 states and the District of Columbia have raised the standard of proof in their civil forfeiture laws.
One case that certainly impressed the national public was a 2014 forfeiture case in Philadelphia involving the Sourovelis Family. Christos Sourovelis’s son was arrested for selling $40. of illegal drugs outside his home. His home was subsequently seized as an instrument of the drug transaction, and his family was displaced pending the civil forfeiture action. After Sourovelis successfully filed a class action federal lawsuit, enjoined by the Institute of Justice, the DA’s Office not only dropped the forfeiture action against Sourovelis but in 2015 amended future civil forfeiture procedures. This case presented the obvious issue of innocent ownership and proportionality. In Pennsylvania as well as half the states, it is the burden of the property owner to show the property owner was unaware that the property had been used for criminal purposes. In the case of the Sourovelis family, their appeal of innocent ownership was successful. A recent Pennsylvania law signed by Governor Wolf specifically adds protection in real property cases by prohibiting the pre-forfeiture seizure of real property without a hearing. This provision would have likely stopped the eviction of Christos Sourovelis from his home before the criminal case against his son was litigated.
However, the innocent owner defense was successfully denied in another case on appeal where a property owner had clear knowledge that her grandson was selling illegal drugs from her home and failed to take corrective action to stop the criminal activity. In this case, the police made several buy-busts from the grandson who was a resident in the property. The property owner was not criminally charged but the grandson was, and pled guilty to the drug offenses. The appellate court noted that the owner was present during the repeated police actions, indicating her full knowledge that the property was an instrument of the drug offenses, not merely a location. Law enforcement should note that this forfeiture was successfully upheld on appeal in part because police were able to correctly document the owner’s presence and awareness of continued criminal activity.
Many states have now amended their forfeiture laws regarding innocent ownership by placing the burden of proof on the law enforcement agency, not the property owner, in proving the owner was aware of the nexus between the property and the criminal activity.
“Policing for Profit”:
Much of the criticism of civil forfeiture is centered on the disposition of the assets after forfeiture. Public opinion in many communities opine that police agencies seek asset forfeiture to enhance their own budget, “padding police coffers”. In truth county prosecutors in many states have control of the forfeited asset and have enhanced their own offices with this funding. Between 2002 and 2013 forfeiture revenues were equivalent to nearly one-fifth of the entire Philadelphia district attorney’s budget.
As we know, equitable sharing through federal adoptions afforded local law enforcement guaranteed sharing with little restriction on the use of the funds, a factor used by the Obama administration in limiting the type of equipment local agencies can purchased with federal forfeiture.
Within the past few years many states and municipalities have amended their forfeiture policies to specifically prohibit the seizing police agency from benefitting from the asset. In addition to procedural reforms, some county prosecutors no longer control the forfeited assets but are now under the control of judges. And community-based drug rehab programs, not the police, will be the recipients of the forfeited funds. Scott Bullock, president of the Institute for Justice called Philadelphia’s consent decree “an unprecedented blow against civil forfeiture”. Other governments have passed similar amendments to their civil forfeiture laws. States that restrict police agencies from receiving any amount forfeited asset include, NM, MO, WI, IN, ME, NC, and District of Columbia.
Proportionality- Eighth Amendment:
The Eighth Amendment of the United States Constitution prohibits the government from imposing excessive fines upon the citizenry. It states, “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. Recent cases have addressed this issue with respects to in rem forfeitures, and have argued that the excessive fines may improperly applied in in rem forfeitures.
In 1993 a defendant was convicted and pled guilty to one count of South Dakota’s drug laws. The defendant obtained two grams of cocaine from his mobile homes and sold it in a nearby body shop. The government sought in rem civil forfeiture of his mobile home. In this case the Supreme Court noted that the Eighth Amendment was not limited to only criminal cases but also to civil forfeiture. This sets up the idea that the forfeiture amount should be proportionate to the offense to avoid an Eighth Amendment violation.
The property “must be an instrumentality of the crime and the value of the property must be proportional to the culpability of the owner.” This was the ruling when the government attempted to seize $357,144 in US Currency from a defendant who attempted to leave the country with that amount without reporting, as required by federal law. The Court ultimately held that the government’s forfeiture of the entire $357.144 was excessive and grossly disproportionate to the offense.
Both these cases have established that the dollar amount of the seized property can be legally challenged under Eighth Amendment guidelines. All eyes will be watching a recent case the Court just granted certiorari, Timbs v Indiana. In this case, Tyson Timbs used his Land Rover to transport drugs over a four-month period. Timbs pled guilty and was sentenced to six years imprisonment. The State of Indiana sought forfeiture of his Land Rover worth $42,058.30. The state’s maximum criminal fine for this offense was $10,000. Timbs’ legal argument is that the government’s forfeiture claim is four times the criminal fine and therefore a violation of the “Excessive Fines Clause” of the Eighth Amendment. While some states have already amended forfeiture laws to address proportionality of the forfeited asset, the ruling in the Timbs case may force all states to adopt a proportionality clause in their forfeiture statutes.
The practice of federal adoptions of local drug cases was substantially diminished under the Obama-Holder period. Federal adoptions often provided local law enforcement with a legal avenue to circumvent their own state forfeiture process, allowing greater and less restrictive returns from the seizure. Especially since federal civil forfeiture still require only the “preponderance” standard for evidentiary proof. The Obama-Holder policy cut out the local adoptions where there was no joint federal law enforcement collaboration, and restricted the type of equipment local departments can buy with the federal forfeiture money.
While everything looked pretty bleak, the Trump administration reversed most of the Obama-Holder restrictions on federal adoptions. Under Attorney General Jeff Sessions, the DOJ resumed payments from the Equitable Sharing Program. Session’s plan does require some training and improved record keeping for the local departments to qualify for adoptions but it appears to return the policy to pre-Obama years. While these revisions will surely be welcomed by local law enforcement, this policy has been seen as a contradiction to the recent reforms enacted by the states. Louis Rulli at the University Pennsylvania Law School states of Sessions’ directive “is going in the opposite direction of where the states are going in trying to reform civil asset forfeiture. Its’ an attack on federalism, taking over states’ choices on how best to combat crime and to protect the property of their citizens.”
Local law enforcement can certainly expect dramatic changes in civil forfeiture laws. Most of the changes in many state laws will certainly result in a decrease if not totally end any forfeiture revenue. There is no question the trend is to curb any initiatives to seize property through civil forfeiture. Cases that have shown forfeiture to be unreasonable have galvanized public opinion against the practice. Legislators have heard the complaints and responded with laws addressing burden of proof, disposition of assets to non-police programs, and proportionality of seizures to match the crime. It appears that equitable sharing through federal adoptions may be the only clear avenue that will benefit local and state law enforcement. This too may change under a new administration, stay tuned!
ABOUT THE AUTHOR:
Albert L. DiGiacomo is a retired captain in the Philadelphia Police Department, and former Chief of Detectives in Chester County, PA. He is a graduate of the 186th session of the National Academy and is court-qualified as a subject matter expert in police management and practices. He is currently a tenured track faculty member in the Criminal Justice Department at West Chester University of Pennsylvania
 Jeff Sessions Removes Restrictions on Controversial Police Seizures, Jon Schuppe, NBC News
 SCOTUS Blog, November 2018 Pending List- Timbs v. Indiana
 Institute for Justice, Civil Forfeiture Reforms on the State Level, 2018
 Sourovelis v. City of Phila., No, 14-4687
 Commonwealth v. 1997 Chevrolet and real property as 416 S. 62nd St. Philadelphia, PA. 160 A 3d 153 (PA 2017)
 CityLab, Brentin Mock
 Austin v. United States, 509 US 602, 113 S Ct. 2801, 125 L. Ed 488 (1993)
 United States v. Bajakajian, 524 US 321, 118 S.Ct. 2018, 141 L Ed 2nd 314 (1998)
 IACP, Legislative and Media Affairs, Sarah Guy
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