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Another Casualty of the War on Drugs

The casualties are the Fourth and Fifth Amendments to our Constitution.

The 4th says “The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated.” The 5th says “… nor shall any person … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Seems pretty clear, right? And yet we have this thing called “civil asset forfeiture” that allows police to seize billions of dollars, cars, and other property even without charging you with a crime. Even worse, it turns our system of justice upside down, forcing you to prove that your property has not been used in any crime in order to get it back (and how do you prove a negative?)

How bad is it? A store owner had his bank account seized because he made cash deposits of his daily receipts in the bank across the street every night. He was never charged with any crime. A man was going to buy a used car and got pulled over by the police. When they discovered the $8,500 in cash he had with him to purchase the car, they seized it. Another man was driving with $28,500 that belonged to a church where he served as secretary, and was going to pay for a parcel of land where his church was planning to build. A cop pulled him over because he looked Mexican (he is from El Salvador). They never even issued him a traffic ticket, but they seized his church’s money.

Actual reasons used by police to justify stopping someone before they seized their property include tinted windows, air fresheners, trash in the car, “a profusion of energy drinks”, “a driver who is too talkative or too quiet”, signs of nervousness, driving over the speed limit, and (my favorite) drivers who were obeying the speed limit were suspect because their desire to avoid being stopped made them stand out.

Two of the main people who established civil forfeiture and ran the federal Asset Forfeiture Office published an editorial recently saying that it has gotten so bad that it can’t be reformed, and should be abolished.

The big problem is that it has become a big money maker for police departments, especially in this era of shrinking local and state budgets. The police have a huge incentive to concentrate on crimes where there is a chance they can seize lots of money or other assets and keep them. And of course, statistics show it happens disproportionately to minorities.

So how did this happen? Well, the police got tired of drug dealers hiring expensive lawyers and beating their convictions, so they decided that the solution was to take away all the money that even looked like it was the proceeds from drug sales before the person was convicted, so they couldn’t hire those expensive lawyers during their trial. To nobody’s surprise, the people who most looked like drug dealers were minorities who had lots of cash on them (no matter what the reason). After all, it is far less suspicious when a white person has lots of money, right?

How did they get away with it? The confiscation of money was done under civil law (hence “civil asset forfeiture”) rather than criminal law (which has far stronger safeguards). Civil law is the law normally used when one private party sues another one, like when you sue for divorce, sue to determine a property line, or sue to obtain compensation for injury. To make it even more confusing, the thing being sued in civil asset forfeiture is the property itself, so there doesn’t even have to be a criminal conviction. And it up to the owner of the property to prove where the money came from (prove that none of it came from potentially illegal activities). Even if they can do that, it is very expensive and time consuming, and recall that the person whose money was seized no longer has anything to pay a lawyer.

According to a judge, civil asset forfeiture is “institutional corruption“. It must be abolished before it makes an even bigger mockery of our legal system.

UPDATE: John Oliver is magnificent showing the absurdity of civil asset forfeiture:



  1. PATRIOTSGT wrote:

    Yeah, this one I’m not too sure on and by that I mean I have only seen it done with people connected to criminal activity. Now that doesn’t mean caught in a criminal act, although many times it happens that way, but rather they are suspected of participating in a criminal enterprise. I’ve seen several cases where a tip is received about a shipment of drugs and the officers stop the vehicle to find it contains cash, sometimes large amounts like in the 1-2 million dollar range. The drivers of said vehicles disavow any knowledge or ownership of the cash (as they are taught to say by their handlers) and are released without incident while the cash is seized.
    I’ve even seen it where a suspect is stoppe enroute to an arranged meeting with an informant and the cash is seized. They will say it was gambling proceeds and the police ask for a receipt, but since it wasn’t actually gambling proceeds they cannot produce said receipt. They are told the police will hold the money for 60 days and if they can produce said receipt they can get it back, which in the cases I’ve seen they never come back.
    On the kind of cases you describe that seems like abuse to me and it’s been my experience that at least with the officers I’ve worked with that doesn’t happen very often at all. It’s happened at border crossings where they fail to declare amount larger then 10k and it is seized, but smaller amounts walk through all the time and anything under 10k is allowed to do so on the federal level.

    This might be an issue for local PDs more then the Feds. The only time I’ve seen the Feds take smaller amounts is when they are conducting a judge ordered warrant or responding to an incident that involved criminal activity.

    Sunday, October 19, 2014 at 5:22 pm | Permalink
  2. Iron Knee wrote:

    PSgt, all that may be true, but it doesn’t matter. Our constitution guarantees that people will not be deprived of their life, liberty, or property without a fair trial, and this violates that guarantee. It gives the police the power to be prosecutor, judge, and jury. And that is a recipe for abuse.

    And besides, the simpler and better solution would be to legalized those drugs.

    Sunday, October 19, 2014 at 5:39 pm | Permalink
  3. ThatGuy wrote:

    John Oliver did a great bit about this. It’s pretty disgusting.

    Sunday, October 19, 2014 at 7:50 pm | Permalink
  4. Iron Knee wrote:

    Fantastic video, thanks. I added it to the post.

    Sunday, October 19, 2014 at 10:30 pm | Permalink
  5. Michael wrote:

    About 5 years ago, I was working in Tennessee. I saw some news reports at the time about this practice. The TN state police had instituted a policy where they began asking EVERY driver stopped for a potential traffic violation whether or not they had large amounts of cash on them. If you answered, “Yes,” then the cash was often seized on the grounds that you were probably buying drugs. If you answered, “No,” or remained silent, they would often use your response as grounds to search your vehicle because they suspected you of lying.

    TN took a lot of heat for it and later backed off. However, it should be a HUGE red flag if any law enforcement agency adopts a blanket policy of asking about what money you are carrying regardless of why you are stopped.

    Monday, October 20, 2014 at 7:46 am | Permalink
  6. westomoon wrote:

    I learned several years ago that this entrenched approach has created some weird side effects — most notably, official disinterest in drug people who don’t have money.

    I live in the country. Some guys had set up an encampment on the land next to mine; friends of mine discovered that they were members of a certain family that has earned quite a rep around here. I was concerned because my water comes from a well, and these particular guys had a long history as meth cookers, which produces such toxic waste that it can permanently ruin an aquifer.

    So I set out to try and get them off this land. In the process, I called our county sheriff to offer my property as a vantage point for observing the considerable traffic to and from these guys’ encampment; the sheriff’s office said “Eh,” and told me to call the parole people. I called the parole folks, who told me that one of the guys was on an escape warrant; they suggested I call the sheriff. I delivered a bit of a rant — I was the only person in these conversations who wasn’t being paid to care about what these guys were doing, after all — then gave up in bewilderment.

    I was talking about it afterward with a friend who’s served on the community board of a drugs task force, and she explained it to me — these guys were living like hippies and had no property to seize. That made them uninteresting to law enforcement — why should they bust known drug manufacturers and sellers “for free” when they could make a profit off other druggies?

    Monday, October 20, 2014 at 8:39 am | Permalink
  7. PatriotSGT wrote:

    “the simpler and better solution would be to legalized those drugs”

    Do you really think legalizing Heroin, Meth, Krokodile, and Cocaine, etc is simpler and better?

    I do agree we need to reign in unconstitutional police powers, and that is where the focus should be. What if the money was seized from hitmen (who also get paid in cash)? Would you would be in favor of legalizing murder?

    WESTOMOON- I have absolutely seen that happen. Surprisingly I’ve seen it more from the prosecutors office then law enforcement. Not enough headlines for attorneys wanting to boost their careers and position themselves for their next move.

    Tuesday, October 21, 2014 at 9:40 am | Permalink
  8. Iron Knee wrote:

    PSgt. Yes I do, for several reasons:

    1) The war on drugs has been a complete failure. If anything, it has increased drug usage.

    2) Portugal decriminalized all drugs (including heroin, meth, etc.) and used the money to fund treatment, and drug usage has gone down. More importantly, it cut off a big money source for criminals, and other benefits.

    I can see seizing money or property from criminals, but only IF THEY ARE CONVICTED of a crime and there is actual evidence that the money came from that crime. And if the police do not get to keep that money.

    Tuesday, October 21, 2014 at 10:49 am | Permalink
  9. PATRIOTSGT wrote:

    Agreed on your last point IK 100%.

    I still don’t agree with legalizing all drugs. But, I will keep listening to the debate.

    Tuesday, October 21, 2014 at 6:06 pm | Permalink
  10. Kyle Shoe wrote:

    Tenny mucho mucho dinero in su trucky trailer?

    Wednesday, October 22, 2014 at 4:03 pm | Permalink