Mark L. Horwitz

Civil forfeiture, also known as ‘policing for profit,’ has received widespread criticism because of police seizing assets including cash and vehicles belonging to citizens who were never charged with a crime or even arrested.

An example of such police practices was discussed by Justice Thomas in an opinion issued on March 6, 2017. A Texas police officer made a traffic stop on a ‘known drug corridor’ which is police speak for any highway between major cities. Police found no illegal drugs or other contraband in the car, however, they did discover $201,100 cash and a bill of sale for a home in Pennsylvania. The police seized the money for civil forfeiture. The driver of the car related that the money belonged to his mother and was the proceeds of a sale of the home in Pennsylvania. The driver’s mother filed a claim for the money, however, the Texas courts held that the forfeiture was justified because the State proved by a preponderance of the evidence (the lowest standard of proof in the justice system) that the money was either the proceeds of a drug sale or intended to be used in such a sale.

 Examples of abuse pointed out by Justice Thomas included a town in Texas which routinely seized property of out-of-town drivers passing through the town. Police, in collaboration with the district attorney, would coerce drivers into giving up their property.  In one example, the officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place the children in foster care unless they signed over the property that the authorities wanted to forfeit. In another example, cited by Justice Thomas, the authorities seized a plant worker’s car and all his property including cash he planned to use for dental work. He was jailed for a night, forced to sign away his property, and then released on the side of the road without a phone or money.

 Justice Thomas wrote that the historic use of civil forfeiture was limited principally to objects used in violation of customs and revenue laws and resulted in the forfeiture of ships and cargoes. He noted “I am skeptical that this historic practice is capable of sustaining, as a constitutional matter, the contours of modern practice, for two reasons.” First, historic civil forfeitures were narrower in most respects than its modern usage. Second, treating forfeitures as civil rather than criminal carries important implications for protections such as the right to trial by jury and the proper standard of proof.

 The opinion by Justice Thomas sends a signal that he is concerned about the abuses and constitutionality of current civil forfeiture practices. The Supreme Court did not consider the issue because it had not been properly raised and therefore, not preserved for review. 

All should be concerned about current civil forfeiture police practices. The abuse of civil forfeiture can impact even law-abiding citizens.   For example, travelers taking cash through TSA check points at any airport can be pulled for questioning causing them to miss their flight and have their money seized.  Cash seizures at airports have ranged from tens of thousands of dollars to as little as $500.

 The abuse of citizens by taking their property under the guise of civil forfeiture continues. The problem is not only with federal law enforcement but also state law enforcement, as well. While Florida has modified its civil forfeiture laws, major areas of abuse still exist. It is time to repeal all civil forfeiture laws and allow forfeiture only in criminal cases thereby preserving important constitutional safeguards to protect people against policing for profit.