Despite Being ‘Innocent Owners’, Third Parties Still Feel Bite of Civil Forfeiture Laws

This commentary originally appeared on the Right on Crime blog on August 5, 2016.

From over at Mississippi Watchdog comes another story whereby an innocent third-party property owner is finding themselves at the mercy of overly broad asset forfeiture laws—statutes intended to aid in the legitimate crime-fighting efforts of law enforcement, but often ensnare individuals whose only “crime” is being in the wrong place at the wrong time:

“Martha Legaspi’s son Hal was arrested in Pelahatchie in eastern Rankin County on drug charges in Oct. 24, 2013, and is serving an 18-year sentence in the Central Mississippi Correctional Facility. During his arrest, Rankin County sheriff deputies seized her gun safe, which contained five firearms and more than $24,000.

“One of the deputies asked me why I needed those kind of guns,” Martha Legaspi said. “I said ‘I need them for my own protection.’”

She hired an attorney and spent $5,000 in a two-year court fight to recover some of her property, including the safe, the guns and about half of the money. Rankin County Judge Kent McDaniel ordered the Rankin County Sheriff’s Department on July 17, 2015, to give back $10,700, but allowed it to keep more than $13,700 of the money seized from the safe.”

Mississippi isn’t the only state where third parties—who had no direct nexus to criminal activity on their own—have nonetheless had their property seized anyway. Authorities in Philadelphia, in a well-known case, seized a married couple’s entire house when their son, unbeknownst to them, was arrested for selling $40 worth of heroin out of it. (The City of Brotherly Love hasn’t been so brotherly, having seized the vehicles and homes of almost 500 families in a two year stretch, according to CNN, without necessarily having leveled any criminal charges. This is perversely ironic, as the city is arguably the birthplace of American liberty.) Another case—this time in Arizona—involved a woman whose truck was forfeited after her 20-year old son replaced its hood and cover with stolen parts without her knowledge.

Fortunately for the Pennsylvania couple, they were able to get their house back eventually. Rhonda Cox, however, was forced to abandon her efforts to retrieve her truck after being informed that if she pursued an innocent owner claim for the vehicle and lost, she would be held liable for all fees and investigative costs borne by the county attorney’s office—which would have exceeded the value of the truck. A lawsuit is currently pending challenging the county’s enforcement of state forfeiture laws.

Ms. Legaspi experienced a different outcome all together, having recovered her firearms, but only a portion of the money (which is odd, as you’ve either broken the law or you haven’t. If not, how is only partially rectifying the wrong acceptable?). Understandably, she expresses incredulity that such a practice occurs in the first place:

“It’s not right for them to take it,” Legaspi said. “What right do they have to take my guns? What right do they have? It’s bad when the law thinks they’re the judge and the jury and they can do as they please. I can understand it if they found drug money on Hal and took it, but for them to come and take my stuff is just wrong.”

This sort of sentiment is quite common among those who have heard of civil forfeiture, who marvel that law enforcement is able to take their property without being charged with a crime, and therein lies a central conceit about the practice. Unlike criminal forfeiture—in which government takes and keeps property only after the owner thereof has been convicted in an underlying criminal proceeding—civil forfeiture is a legal oddity, wherein property itself is said to have “committed” a crime. Such a fiction allows government to seize and keep property with far fewer legal hurdles than would exist if they charged the owner instead, which could explain why only about 13% of federal forfeitures come after a criminal conviction. All things being equal, it’s the path of least resistance to obtaining the property. While I don’t go so far as to describe this disparity, or civil forfeiture generally, as “policing for profit”—as this uncritically paints all law enforcement activity with the same broad brush—the practice does certainly incentivize lazy procedural habits at every step of the process, from initial encounter to final disposition.

It’s also worthwhile to note comments made by district attorney Michael Guest—whose office prosecuted Legaspi’s son—as they reveal the mental contortions necessary to justify the status quo regarding forfeiture:

“Cases are made. There are hearings that are held. I believe there is a big difference between a judicial procedure on property and taking someone’s liberty.

“If I’m going to try to take away your freedom of movement and put you in jail and restrict your freedom of movement, now that is sacred. When we’re talking someone’s money or property, that pales in comparison to taking someone’s liberty.”

In a narrow sense, he’s technically correct. As I’ve already established above, civil forfeiture operates under different procedural rules than does a criminal proceeding, so there is indeed a difference between “a judicial procedure on property and taking someone’s liberty.” No one denies this.

His formulation about “taking someone’s liberty” is curious, though. Contextually, he’s clearly referring to imprisoning someone, and in and of itself, there’s nothing inappropriate in using the phrase in this fashion. But “taking someone’s liberty” takes on other meanings, does it not? Like, say, divesting an innocent property owner of their belongings without convicting them of a crime—let alone even charging them with one—violating the letter of not only the Fifth Amendment, but numerous state constitutions as well?

Restricting freedom of movement through incarceration is indeed a significant action on government’s part, but it isn’t obviously any more injurious to a free person than confiscating their property—be it a home or one’s life savings, and that’s where Guest’s rationalization falls flat. Sanctity of rights don’t lie on an arbitrary spectrum, where one is more valuable than another. Nor do we enjoy rights at the sufferance of public masters. Our foundational documents are littered with philosophies (e.g. protection of property rights is the “first object” of government) setting the individual apart from the State, and our Founders wrote enumerated protections into the Constitution to give those philosophies teeth. What force can the Constitution be said to have then if “unalienable” rights become mere guidelines, subject to the caprice of government agencies?

Ms. Legaspi is correct in her frustration: Civil forfeiture is a mockery of those First Principles, and to lose her belongings without having done anything demonstrably illegal is, as she said, “just wrong.”

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