Consider This A Warning: Civil Forfeiture Is Uncivil

Thomas Warns*

New York has notably collected far more assets than any other state.

New York has notably collected far more assets than any other state.

Civil forfeiture is a practice which allows the government to seize private property from an owner by suing the piece of property itself and proving by a preponderance of the evidence that the property was used for a crime. The owner need not be found guilty of any crime for his property to be seized, and the government need not pay compensation to the owner like it would under an eminent domain taking. If the government meets its lowered burden that the property was used in a criminal act, the burden shifts to the owner to prove his innocence, which can be costly and difficult proposition. This leaves civil forfeiture ripe for abuse, as authorities are able to take first and ask questions later, and property owners are often left scrambling to defend themselves.

The use of civil forfeiture has been growing in recent years. FoxNews notes the following:

In 1985, the U.S. Department of Justice created its Asset Forfeiture Fund. One year later, the fund -- which holds the proceeds from seized property and is available to be divvied out to law enforcement agencies -- brought in $93.7 million. In 2008, the amount had ballooned to $1.6 billion. In 2013, it reached $6.3 billion.

Law enforcement officials argue that civil forfeiture laws allow them to strike a hard blow at organized criminals by seizing their property, robbing them of a base of operation. The tool is very crude however, and can claim innocent victims as well as criminals. Massachusetts motel owner Russell Caswell is an example of one innocent victim. The seventy-year old man was faced with a civil forfeiture proceeding against his motel, valued at $1.5 million, after the police alleged that his motel was being used for drug dealing and prostitution. This was despite the fact that he had allowed the police to use rooms for free in the past in order to run sting operations, and the fact that he played no part in any criminal acts. He was able to fight back, and ultimately a judge dismissed the forfeiture action; unfortunately not all property owners have the wealth or sophistication to fight back.

If law enforcement insists on using this powerful tool to fight criminals, the standard of proof must be raised. At a minimum, the burden should be on the government to prove that the property owner was not innocent, as opposed to the other way around. Perhaps the standard should be raised so that property is not seized until the government proves beyond a reasonable doubt that the property was involved in a crime. Taking someone’s business can be a very serious matter, and heightening the burden will reduce the temptation to police for profit and seize assets when a case is weak.

Fortunately Minnesota took a step this week to curb abuse of civil forfeiture when the Governor signed a bill into law which requires the government to obtain a criminal conviction or its equivalent (such as a plea deal) before a civil forfeiture can take place. Also, the burden of proof is on the government, instead of forcing the property owner to prove a negative, i.e. that he didn’t commit the crime. This comports more closely to a just conception of Due Process rights, and will hopefully serve as a blueprint for other states.

*Thomas Warns is a J.D. Candidate, class of 2015, at NYU School of Law, Staff Editor on the NYU Journal of Law & Liberty , and author of the weekly column "Consider This a Warning."