It’s Too Easy for Police to Take Your Stuff
It’s Too Easy for Police to Take Your Stuff
Civil forfeiture laws in many states are frequently abused.
By Matthew Prensky and Arif Panju
IN EARLY DECEMBER, the San Antonio Police Department auctioned off thirteen vehicles. The auction marked the completion of a process known as civil forfeiture, which allows law enforcement to seize people’s property and work with prosecutors to sell it and pocket the proceeds.
Police claim civil forfeiture allows them to keep communities safe by taking criminals’ property, stymieing their ability to commit crimes. The only problem is that two of the thirteen vehicles auctioned off last December were taken from innocent people with no clear connection to the alleged crimes involving their vehicles. Court filings make no mention of the registered owner’s name in either case, yet police still moved forward to forfeit—that is, permanently expropriate—their property.
In these two cases, San Antonio police found drugs while conducting traffic stops. The drivers were arrested, and the vehicles were seized. But the drivers weren’t the registered owners. Police documents filed in court do not place the owners at the scenes where the vehicles were seized, and they were never charged with any illegal activity tied to the vehicles. These were completely innocent Texans who lost their property forever because of civil forfeiture.
The ability of law enforcement officers to seize and sell the property of innocent people in cases like these threatens the rights of every Texan who, for example, chooses to lend a car to family or friends.
Police use civil forfeiture to seize cash and cars from innocent people more often than law enforcement might be willing to admit. Why? Because in the upside-down world of civil forfeiture, your property is guilty until proven innocent. Texas law has created a system that not only permits this basic violation of due process and property rights but incentivizes it, with up to 70 percent of the proceeds resulting from sales of the property going to law enforcement when cases are not contested.
This profit incentive is at the heart of the rampant abuse of civil forfeiture. Between 2001 and 2018, Texas law enforcement agencies forfeited more than $781 million under state law. Law enforcement need not arrest, charge, or convict someone to seize and forfeit their property in the state. They just need to articulate probable cause against the property based on the officer’s suspicion it’s linked to criminal activity—or even that it could be used to “facilitate” a future crime that hasn’t been committed yet. Next, Texas prosecutors rush to civil court, not criminal court, to use this flimsy standard and sue the seized property itself. In criminal court, you have a right to counsel, and the government must prove its case against you beyond a reasonable doubt. The same does not apply in forfeiture cases.
But there is reason to be hopeful. Last fall, a Texas judge allowed a class-action lawsuit to move forward against Harris County over its unconstitutional forfeiture program. (The county’s approach to forfeiture is notorious in the state.) And property owners are fighting back across the country. Whether it’s a Marine driving to see his two daughters, a truck driver driving to Texas to buy used trucking equipment, or a group of individuals robbed of their most treasured belongings by FBI agents, dozens of other innocent owners have fought back against the government with the help of our organization, the Institute for Justice.
Some in the Texas legislature are also trying to limit forfeiture while fixing the poor transparency surrounding the practice. Proposed legislation would have precluded forfeiture of the property of innocent owners, and it would also have required law enforcement to collect and organize their forfeiture data and to disclose forfeiture cases lacking an arrest or conviction. But the San Antonio Police Department, San Antonio Police Officers Association, and the law enforcement lobby opposed the bipartisan bill. It overwhelmingly passed the Texas House, but opponents blocked it in the state Senate. It was referred to a committee last May and no action has been taken on it since.
Civil forfeiture doesn’t just target the “bad guys.” Rather, it represents a threat to the rights of every Texan who owns a vehicle or carries cash. Its abuse, stretching from roadside traffic stops to police auctions, violates the Texas Constitution. And Texas is far from the only state with a civil forfeiture problem. Enough is enough: It’s time for reform.
Matthew Prensky is a writer and Arif Panju is a managing attorney of the Texas office at the Institute for Justice.