John Locke Update / Research Newsletter

2015 in Review: Civil Asset Forfeiture Edition

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As regular readers already know, civil asset forfeiture is a legal process that empowers government agents to confiscate property they suspect has been used for, or derived from, criminal activity. It is a civil action against the property itself, which means the owner need not be convicted of a crime. In fact, the owner need not even be a suspect. To get the property back the owner must initiate legal proceedings at his or her own expense and prove that the property was not used or obtained illicitly. Civil asset forfeiture is inherently unjust, not to mention a violation of due process. What’s worse, it tends to pervert the proper relationship between the police and the public by turning the former into predators and the latter into their prey.

I discussed civil asset forfeiture frequently in 2015, beginning, in my very first newsletter, with US Attorney General Eric Holder’s 1/16/15 order curtailing a Department of Justice practice called "equitable sharing." By means of this practice the DOJ had been encouraging state and local law enforcement agencies to participate in its civil asset forfeiture program by giving them a substantial share of the proceeds. I noted that, unlike most states, there’s no civil asset forfeiture under North Carolina state law. Instead, property can only be forfeited if the owner has been convicted of a crime. Moreover, under our Constitution, law enforcement agencies may not profit from these criminal forfeitures; instead the proceeds must be "used exclusively for maintaining free public schools." This is as it should be, and I suggested that, because the DOJ’s equitable sharing program had given law enforcement agencies in our state a way to evade these protections, the announced curtailment of the practice should be especially good news for North Carolinians.

I also ventured to hope that, "More reform will follow," but in this I was disappointed. The next few months brought news of asset forfeiture reform proposals both in Congress and in various state legislatures, and in some of those state legislatures real progress was made. However, no further progress was made at the federal level, and as a result North Carolinians continued to be the victims of assert forfeiture abuse.

In May I wrote about one such victim, Lyndon McLellan, who owns a convenience store in Fairmont, North Carolina. On the basis of several large cash deposits, federal agents seized $107,000 from his bank account and refused to return it. He was not accused of any crime, and the deposits were legitimate. Nevertheless, it took him over a year to recover his money, and he might never have done so if the Institute for Justice had not agreed to represent him without charge. Afterwards, IJ attorney Scott Bullock observed:

The government in this case had to have its arm twisted to follow its commitment to property owners like Lyndon. That shows reform of the civil forfeiture laws cannot be entrusted to voluntary policy changes from the government. What is truly needed is binding reform from Congress."

Months went by, however, and no such Congressional reform was forthcoming; which made it all the more frustrating when, in November, the Washington Post reported that:

In 2014, for the first time ever, law enforcement officers took more property from American citizens than burglars did….

Last year…the Treasury and Justice departments deposited more than $5 billion into their respective asset forfeiture funds. That same year…burglary losses topped out at $3.5 billion.

There was, at last, one small piece of good news in December. It took the form of a DOJ letter to "State, Local and Tribal Law Enforcement Agencies" stating that, due to budget cuts:

The Department is deferring for the time being any equitable sharing payments from the Program.

And adding:

We preserve our ability to resume equitable sharing payments at a later date should the budget picture improve.

Despite that hopeful addendum, the letter came as a nasty shock to many state and local law enforcement agencies, including some in North Carolina. In an op-ed in the Mooresville Tribune, Iredell County Sheriff Darren Campbell complained:

These additional funds have allowed our office to purchase extra items and equipment to fight crime…. The drug dealers paid for new patrol cars. I love this idea.

Recently, however, there is a wind blowing in Washington, D.C. to limit or suspend this program…. To put this in plain English: there will be no more money coming from our seizures…. This is a victory for the drug cartels that can operate without fear of losing drug profits.

Mooresville Tribune reader Sonny Morton responded quickly with a letter to the editor

Sheriff Darren Campbell…repeatedly refers to the…seizure of the "profits of drug dealers."  No doubt some, perhaps most, of the money seized is illicit.  But if the assets were known to be drug profits, his department would simply charge the drug dealers with a crime and take the money the old fashioned way — by proving its origin.  What makes this program different, and un-American, is that the authorities take someone’s money at gunpoint and then force them to prove their innocence to get it back….  Also conveniently omitted is any mention of the conflict of interest in having the police benefit from taking citizens’ assets.

Think about this.  Do you want a police force incentivized to seize your property and able to do so on a whim?  When they have taken your assets, what will you use to hire a lawyer to recover your property?

That’s the kind of kind of good sense and fair-mindedness I’ve come to expect from North Carolinians. It’s one of the reasons North Carolina has the best asset forfeiture regime in the country, and (as I’ve often said) it’s one of the reasons I feel so lucky to live here.

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Jon Guze is Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School in… ...

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