Justice Department Ends Participation in Civil Asset Forfeiture Program

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On Friday, Attorney General Eric Holder announced that state and local officials would no longer be allowed to use federal law to seize private property such as cash or cars without evidence that a crime was committed.

This practice, known as civil asset forfeiture, circumvents the Fifth and Fourteenth Amendments, which prohibit the governmental takings of life, liberty or property without due process of law.

It is, in essence, legalized theft.

In such cases, the government proceeds directly against your property. An individual doesn’t need to be convicted of a crime, so criminal procedure does not apply. And because the forfeiture is against the property, the owner is a third party claimant in related court proceedings.

Because the case is against the property and not the owner, court cases have names like these:

United States v. $124,700 in U.S. Currency

State v. One 2012 Mercedes Benz

United States v. One Gold Necklace

A program called equitable sharing allows police to take property from citizens under federal civil forfeiture law instead of the applicable state law. This is a great deal for law enforcement because federal law makes civil forfeiture both relatively easy and rewarding – as much as 80 percent of  the proceeds are returned to the seizing agency.

Investigations have revealed what some proceeds have been used to acquire:

  • in Camden County, Ga., a $90,000 Dodge Viper for the county’s DARE program;
  • in Colorado, bomber jackets for the Colorado State Patrol;
  • in Austin, Texas, running gear for the police department;
  • in Fulton County, Ga., football tickets for the district attorney’s office,
  • in Webb County, Texas, $20,000 for TV commercials for the district attorney’s re-election campaign;
  • in Kimble County, Texas, $14,000 for a “training seminar” in Hawaii for the staff of the district attorney’s office;
  • in Albany, N.Y., over $16,000 for food, gifts and entertainment for the police department.

If a state has laws that better protect its residents or prevent law enforcement from directly benefiting from forfeitures, agencies were allowed to apply federal law.

Now, Eric Holder is ordering an end to most of the Department of Justice’s Equitable Sharing Program.

The Washington Post reports:

“With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” Holder said in a statement.

Holder’s decision allows limited exceptions, including illegal firearms, ammunition, explosives and property associated with child pornography, a small fraction of the total. This would eliminate virtually all cash and vehicle seizures made by local and state police from the program.
While police can continue to make seizures under their own state laws, Equitable Sharing was easy to use and required most of the proceeds from the seizures to go to local and state police agencies. Some states have higher standards of proof for forfeitures and some require seized proceeds to go into the general fund.

(To read Holder’s memo in its entirety, click here.)

This is great news, because not only did the program allow police to steal property from people for no valid reason, it also encouraged officers to engage in other questionable behaviors.

The Washington Post conducted a thorough investigation on civil asset forfeiture and published their findings in September 2014. Here’s what they discovered:

“…police made cash seizures worth almost $2.5 billion from motorists and others without search warrants or indictments since the terrorist attacks of Sept. 11, 2001.

The Post found that local and state police routinely pulled over drivers for minor traffic infractions, pressed them to agree to warrantless searches and seized large amounts of cash without evidence of wrongdoing. The law allows such seizures and forces the owners to prove their property was legally acquired in order to get it back.

Police spent the seizure proceeds with little oversight, in some cases buying luxury cars, high-powered weapons and military-grade gear such as armored cars, according to an analysis of Justice Department data obtained through Freedom of Information Act requests. (source)

Between 2001 and 2014, state and local authorities have kept more than $1.7 billion through these kinds of seizures.

Around $800 million went to the Justice Department, Homeland Security, and other federal agencies.

Politicians and activists across the political spectrum agree that Holder’s actions are a step in the right direction, but they aren’t quite enough. That’s because state asset forfeiture programs still remain. Police departments can continue to seize assets until states reform their laws. Currently, 42 states still have laws that not only allow the practice, but provide huge incentives for police departments to keep using them.

For Slate, Leon Neyfakh explains:

According to Louis S. Rulli, a professor at the University of Pennsylvania Law School who has studied civil forfeiture closely, no fewer than 26 states allow police to keep 100 percent of the assets they seize. And Scott Bullock, a senior attorney at the Institute for Justice—the libertarian public interest law firm—says there are 16 others where police keep 50 percent or more.

“The law has to be changed in the states too,” said Bullock. “This closes one window, but you’ve got to close all the windows.”

According to Rulli, the window being closed is not all that big. “The Attorney General’s announcement is certainly very welcome news and an important step toward stemming civil forfeiture abuse, but it is going to have limited impact in states and localities because most seizures of cash, cars, and homes are conducted under the auspices of state law,” he wrote in an email.

Eric Holder announced his resignation last September, and will leave his position as soon as his replacement is confirmed. Loretta Lynch is expected to be confirmed as our new Attorney General at the end of the month.

I wonder how Lynch feels about Holder’s announcement. After all, she seems to be a big fan of civil asset forfeiture: during her reign as the US Attorney for the Eastern District of New York, her office seized over $904 million in asset forfeitures – in 2013 alone.


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