Imagine that you’re on a road-trip with your family. You’re driving through unfamiliar but seemingly non-threatening small towns. You stop for gas, or shopping, or whatever. You pull back onto the highway, and the next thing you know you’re being pulled over by the police.
You didn’t do anything wrong, and they’re not charging you with a crime. Since you’re not breaking any laws, you even let them search your car. They find that you’re carrying a substantial amount of cash — which you earned honestly, and withdrew from the bank with the intention of making a special (legal) purchase.
Then things get ugly.
Suddenly, the police take you into custody. The accuse you of being involved in drug trafficking, even though they found no drugs. Maybe they say they smelled marijuana in the car, even though they didn’t find any — because there wasn’t any to find.
The police pocket your cash, impound your car, and threaten to take away your kids, unless you sign a “waiver” basically saying that you don’t contest the seizure of your stuff. If you sign, your free to go, minus your money, your car, and your belongings. So you sign, maybe because of the threat to take away your kids; maybe because you don’t know what your rights are.
Anyway, you’re in a strange town can’t afford a lawyer. So you sign, get your kids, and leave town without your stuff. (Note: This scenario actually happened to one family. So, if the police really thought the parents were drug traffickers or otherwise engaged in criminal activities, why would they let them leave with their children — children they thought endangered enough to threaten the parents with their removal?)
You might feel like you’ve been robbed. In a sense, you have. But it’s legal.
I don’t know why I haven’t heard of “civil seizure” before.
The basic principle behind asset forfeiture is appealing. It enables authorities to confiscate cash or property obtained through illicit means, and, in many states, funnel the proceeds directly into the fight against crime. In Tulsa, Oklahoma, cops drive a Cadillac Escalade stencilled with the words "This Used To Be a Drug Dealer's Car, Now It's Ours!" In Monroe, North Carolina, police recently proposed using forty-four thousand dollars in confiscated drug money to buy a surveillance drone, which might be deployed to catch fleeing suspects, conduct rescue missions, and, perhaps, seize more drug money. Hundreds of state and federal laws authorize forfeiture for cockfighting, drag racing, basement gambling, endangered-fish poaching, securities fraud, and countless other misdeeds.
In general, you needn't be found guilty to have your assets claimed by law enforcement; in some states, suspicion on a par with "probable cause" is sufficient. Nor must you be charged with a crime, or even be accused of one. Unlike criminal forfeiture, which requires that a person be convicted of an offense before his or her property is confiscated, civil forfeiture amounts to a lawsuit filed directly against a possession, regardless of its owner's guilt or innocence.
One result is the rise of improbable case names such as United States v. One Pearl Necklace and United States v. Approximately 64,695 Pounds of Shark Fins. (Jennifer Boatright and Ron Henderson's forfeiture was slugged State of Texas v. $6,037.) "The protections our Constitution usually affords are out the window," Louis Rulli, a clinical law professor at the University of Pennsylvania and a leading forfeiture expert, observes. A piece of property does not share the rights of a person. There's no right to an attorney and, in most states, no presumption of innocence. Owners who wish to contest often find that the cost of hiring a lawyer far exceeds the value of their seized goods. Washington, D.C., charges up to twenty-five hundred dollars simply for the right to challenge a police seizure in court, which can take months or even years to resolve.
I was out grocery shopping with the family yesterday, and I had Parker with me. (We use the divide-and-conquer method. We each take a kid and cart, and meet up after checkout.) We were in the magazine section when a woman approached me and just started talking to me.
She had a copy of The New Yorker in her hand, and started telling about the article quoted and linked above. She told me it was a “very important article,” and then told me she’d lost her home in a similar manner. She said she wasn’t going to go into a long story, and then proceeded to go into a long story that basically suggested that her sister’s husband was involved in some kind of fraud scheme that somehow involved her home (maybe she accepted money from her sister and brother-in-law?) and led to her loss of it.
It felt like she was about to ask me for money, but she never did. In any event, the story went on long enough that I had to stop her. I thanked her for sharing her story with me, said I was sorry to hear what had happened t her, and promised to read the article.
The woman in the grocery store was unlike most of the people in the article, in that she was a middle-class white woman. Maybe there’s a demographic at play in some places, where Latinos and African-Americans are frequently targeted, and basically have the goods stolen, and auctioned off to pad the police department budget, or the pockets of law enforcement officers.
Naturally, this aspect is a product of the “war on drugs.” But that “war on terror” has apparently played a part in making Arabs, Muslims, and people of Middle Eastern descent potential targets too.
When I think about how many times I’ve been driving through small towns, alone or with my kids, I suppose I should count myself lucky that I’ve never been stopped. I don’t make it a habit of traveling with large amounts of cash, but that doesn’t mean I don’t have anything that might be seized.
I’m paranoid enough about small town “speed traps” as it is. I keep a sharp eye out for changes in the speed limit around small towns, and follow them no matter how low. Yes, 15 mph is excruciatingly absurd. It actually takes a lot of effort to drive that slow. But I’m not going to give police a reason to pull me over if I can help it.
Now it seems they can just make one up, shake you down, and send you on your way. It’s highway robbery. Legal highway robbery.