Unjust civil forfeiture laws turn policing into a for-profit venture

Copyright 2018 (all rights reserved)

By Rudy Apodaca

(published as a commentary/guest column on June 3, 2018 in the San Antonio Express-News)

     Civil Forfeiture laws allow the seizure of a personὑs property without a warrant―more importantly, without a criminal conviction.

     The Institute for Justiceὑs report, Policing for Profit: The Abuse of Civil Asset Forfeiture), puts the issue this way:

     Civil forfeiture laws pose some of the greatest threats to property rights in the nation today, too often making it easy and lucrative for law enforcement to take and keep property, regardless of the ownerὑs guilt or innocence.

     Hereὑs an example of an abuse of such laws committed by federal officers:

     The nightmare began for Gerardo Serrano when, on September 21, 2015, he drove up to the border crossing at Eagle Pass, Texas, in his 2014 Ford pickup truck. The reason for the trip? He wanted to interest a cousin from Mexico in expanding his solar panel installation business in the United States.

     After Serrano took a few photos of the border as mementos, two U. S. border agents demanded the password to his phone. When Serrano exercised his rights and refused, one of the agents said that he was “sick of hearing about your rights.”

     “You have no rights here,” the agent said.

     The agents searched the truck, and finding five .380 caliber bullets in the truckὑs console, one of them said, “We got him!” Serrano had a concealed-carry permit but no weapon on him. The agents seized the truck, alleging it was being used to transport “munitions of war.”

     Later, to request a hearing on the seizure, Serrano was required to post 10 percent of the truckὑs value, $3,804.99. The hearing never took place.

     But in the two years Serrano was without a truck, he continued making $672.97 monthly payments on it, and he paid more than $700 to keep it insured, and $1,004.61 to register it. He also ended up paying thousands more for rental cars.

     Represented by the Institute for Justice, or IJ, Serrano is now not only suing for restitution but seeking a class-action judgment on behalf of others mistreated in other seizures.

     According to IJ, Texas has one of the worst civil forfeiture laws in the nation. The laws in Texas authorize the seizure of any contraband or instrumentality, such as money, motor vehicles, buildings, firearms, and any other asset used in or acquired from the commission of a crime.

     Many victims of the seizures arenὑt criminals or related to drug cartels, but average citizens whoὑve broken no law.

     The Texas statute permitting forfeiture invites abuse in at least four ways.

     First, it creates a conflict of interest, allowing law enforcement agencies to sell seized property and use the proceeds to add to their coffers, thus giving them an incentive to abuse their power.

     Next, the seizure and sale take place even though thereὑs been no conviction of any crime.

     Third, Texas uses a “preponderance of the evidence” standard for determining whether a seizure is valid, instead of the “beyond a reasonable doubt” standard used in criminal proceedings.

     Finally, the burden is on the owner of the seized property to prove the property wasnὑt used to commit the underlying crime. And this burden may fall on the unknowing person who loaned or leased a vehicle used in the alleged crime.

     With most laws, especially those under which government interests conflict with the rights of its citizens, there are differences of opinion. So, itὑs not surprising that civil forfeiture has been debated for many years in every state, pitting law enforcement against property rights advocates.

     Critics maintain that forfeiture laws deprive owners of property without due process, while law enforcement counters that the laws are stopping crime, especially those involving drugs.

     In 2015 alone, 13 legislative bills were introduced in Texas to reform civil forfeiture, but fierce opposition, mostly from law enforcement, killed every one of them.

     In the 2017 Texas legislative session, Senator Konni Burton R-Colleyville, introduced Senate Bill 380, which would have repealed civil forfeiture provisions and established criminal forfeiture. The bill died in committee.

     SB 380 had two important features. First, no agency could seize or keep property until there was a conviction. Second, the government, not the property owner, bore the burden of proof under the stricter standard of “beyond a reasonable doubt.”

     Lawmakers are confronted with the drawing the line between effective law enforcement and property rights. Most of us are definitely sold on the idea that we need good law enforcement agencies. By the same token, we are protective of our property rights.

     Where do we draw the line?

     The answer depends on the answer to another inquiry: Are the police genuinely attempting to enforce the law, or are they being unduly influenced by the fact that their budgets stand to gain handsomely, affording them higher salaries and needed equipment?

     These questions aren’t purely academic. It’s been shown that confiscated funds are widely used for salary increases and the purchase of vehicles and essential equipment.

     Iὑm not against putting drug cartel criminals behind bars. But I strongly oppose law enforcement abusing its authority and using the law to violate citizensὑ rights and deprive them of their property forever or for an extended time, causing undue hardships for them and their families.

     Up until eight or so years ago, civil forfeiture laws were largely unknown to most elected officials, pundits, and journalists, much less to the public. This was so even though the federal and the state laws had existed for many years and that hundreds of millions of dollars worth of property was being seized every year in the United States.

     This brings me to a much deeper and broader issue―one involving not only bad laws but a complacent or uninformed public. Itὑs unfortunate that civil forfeiture laws ever came into being. But itὑs sadder that theyὑve remained on the books for so long.

     It saddens me that Texas and other states have consistently abused their civil forfeiture laws without clamor or as much as a critical squeak from citizens. Most people are silent when they should speak out. Possibly, they tolerate the abuses as long as the laws, when properly applied, help law enforcement and hurt the drug trade. Or maybe they remain silent because theyὑre oblivious to either the existence of such laws or their questionable application.

     Some of the laws may meet due process and other constitutional requirements in their enactment but fall far short in their application, especially when the people we should trust, our law enforcement, abuse them throughout the country.

     Shame, shame to the public officials, who we should revere, for your failure to assure that the laws donὑt trample on citizensὑ rights.

     We, the public, must share the blame. So I add, shame, shame on us, not only for allowing these bad laws to continue in force but for doing nothing about their abuse and not demanding justice.

     Lawmakers especially should take note. Should a courageous Texas legislator choose to introduce legislation similar to SB 380 in future legislative sessions, I realize that, because of massive lobbying efforts from law enforcement, the bill would stand little chance of passage. But thatὑs often the way reform happens, by not giving up.

     Someday, sooner or later―I hope sooner―the tide will turn.

     Meanwhile, Texas law enforcement agencies will continue to enrich themselves shamelessly.