If ever there was an area in drastic need of reform in the area of crime, it is civil forfeiture. The following is a horror story now being played out in similar fashion across the country.
A couple had their car seized by the police after their son was pulled over for a window tint violation. In the car was found a small amount of cash and a small amount of marijuana not reaching the level to lead police to believe that this person was a dealer. This was personal cash and recreational marijuana for personal use. The car belonged to the parents. The prosecutor in Navajo County, Arizona filed an application to seize the car and notified the parents.
They, in turn, consulted a lawyer who informed them that the chances of prevailing were slim, but they could try for a $4,000 retainer which they could not afford. They decided to challenge the seizure on their own by filing the appropriate paperwork with the prosecutor’s office. This included a 29-page appendix of evidence and documents attesting to the fact that they were the owners of the car, that the car had been paid off 2 years previously and that they had title to the car. In short, the car was not the property of their son. Additionally, once notified they had only 30 days to respond with supporting documentation and they did comply with the 30-day window.
In their handwritten petition to the prosecutor’s office which the prosecutor admits was received in a timely manner, they had forgotten four words. For that omission, the petition was never forwarded to the court by the prosecutor for the court’s consideration. Those four words were: “under penalty of perjury.” Because they did not write these words before their signature, the prosecutor considered the petition “null and void.” In essence, although never charged with a crime, the prosecutor decided that the civil forfeiture could continue without the court’s approval. There was no need to include the court, the prosecutor contends, because the petition was “null and void.”
Unfortunately, these types of cases are popping up all around the country. In San Diego County, prosecutors seized the personal bank accounts of an entire family- the joint accounts of the parents and those of two teenage daughters. The parents were the owners of a medical marijuana processing center. Police SUSPECTED a clandestine drug operation even though the owners complied with California law, paid their taxes, and had operated publicly for over two years. Another $324,000 was seized from the business itself and the operation- legal!- was shut down.
This was a joint local-federal raid on the business by 30 heavily-armed police officers. Federal authorities refused to file charges based on the Rohrbacher-Farr amendment which prohibits federal funds for being used for prosecution against any business complying with state medical marijuana laws. The San Diego County prosecutor also declined to file any charges against the owners or business. Nine months after declining to file any charges of any kind, the business is still shuttered and the family is out over $100,000 in personal finances. San Diego County is still in possession of that over $400,000.
This is how civil forfeiture works and amounts to nothing less than policing for profit. Along the way are scattered victims whose lives have been upended not based on criminal activity as determined by a jury of their peers or an independent judge, but based on the suspicions of law enforcement. They may not have a criminal record, but they are certainly financially burdened nevertheless and in some cases extremely so.
Civil forfeiture has completely upended a central tenet of American law enshrined in our Constitution: that the accused is presumed innocent until proven otherwise. While one can understand the government’s motive for passing and enforcing laws preventing the accused from using the fruits of ill-gotten gains, that is usually not the case. Wall Street insider trading defendants are afforded greater leniency than a couple in Arizona or a business owner in California.
There is the case of the Iowa restaurant owner who ran the business for 38 years and had her entire bank account seized by the IRS over erroneous charges of structuring bank deposits to avoid CTR compliance measures. A case similar to the one involving the car in Arizona occurred in New Jersey where a woman’s son used her car to set up a marijuana deal with an undercover officer even though no cash was exchanged and no marijuana was found in the car. Instead, the son faced conspiracy (not possession) charges, pleaded guilty and served his punishment. The prosecutor seized the car nevertheless despite ample proof that the boy’s mother- a member of the county sheriff’s department- did not know what her son was doing, nor did she condone it. But, being the owner of that vehicle, she pays the penalty.
If we on the Right are going to oppose the blatant abuse of eminent domain by the government to increase tax revenue as in the horrible Kelo decision, then we must also oppose these onerous civil forfeiture regimes prevalent in many states which amount to nothing more than a stealth form of eminent domain disguised in the language of law enforcement. Some states have already started the process, but they are the precious few. The federal government can set an example by reforming their laws and procedures, reigning in the IRS and redirecting them from law enforcement to revenue collection, and establishing some semblance of due process when it comes to seizures and the timely return of anything seized upon a finding of innocence and, in the case of guilt or pleas of guilty, prorating the necessary nexus between ill-gotten gains and those legitimately obtained.