Stop Saying Civil Forfeiture Lacks Due Process
June 21, 2016 (Fault Lines) – Civil forfeiture has been a hot topic at Fault Lines. Recently, Andrew Fleischman took on the Texas Supreme Court, which decided that winning on a motion to suppress is irrelevant to civil forfeiture. He argues that the court’s reasoning was wrong, mostly because the policy reasons behind suppression apply to forfeitures:
So let’s go through the cost-benefit analysis that the Supreme Court of Texas pretends to consider. Let’s say you’re a small, cash-strapped Texas town that is hoping to build up some revenue. You proceed to stop every single person that comes through your town, hoping to find cash that you can seize. And now, even if the citizens passing through your township can prove that you unlawfully stopped them, they still have to establish “innocent ownership” to get their stuff back.
In cases like these, the “cost” of suppression is the same as the “benefit.” Local law enforcement won’t be incentivized to plump up its coffers with ill-gotten gains, local citizens will be able to move freely, and hopefully, police will be able to focus more on substantive crime. The only real “loss” comes from exactly the sort of profit motive that law enforcement claims to disdain.
It was exactly to create these “costs” that the 4th Amendment was created in the first place. * * * Without the potential deterrent effect of suppression, there is little reason for revenue-seeking officers not to simply search at will. * * * Every wrongful search is a crime.
Andrew’s last quoted statement is worthy of a brief aside. There tends to be a commonly held assumption that absent willful or malicious behavior, whatever law enforcement does under the color of law simply cannot be criminal. Even other government actors forget that law enforcement, like everyone else in government needs to have authority for whatever action is taken. So, to the extent that badly constructed civil forfeiture schemes function as a roving license to seize property, then there’s a problem with that scheme—even if people fail to understand what the problem is at first.
Forfeiture is premised, in part, on the idea that property is something in which a person does not have a legally protected property interest. For example, someone steals your cocaine, you cannot call 9-1-1 to get the cops to take a theft report, and you generally cannot sue the person civilly to get the cocaine back. In essence, you engage in criminal conduct at your own risk, which is why armed people are often nearby such property.
So, it stands to reason, that if someone steals your drugs and you cannot recover against that person, then should state officers be put in no worse position. If you have contraband like cocaine, law enforcement can take it and not give it back; it’s the cost of doing business. Unless you are anarcho-capitalist, this thought probably does not disturb you much. You probably don’t even mind that there’s sometimes not much due process involved. The drugs simply go to the property room until disposed of later or used
at parties as evidence.
Then this relatively uncontroversial idea gets applied to proceeds of criminal conduct and it begins to get a little cloudier. Let’s say the guy down the street kept a giant Ponzi scheme going for a number of years. And this guy buys things for himself, his wife, kids, parent, friends, and business associates. Meanwhile, grandma, who got bilked, is eating cat food. So when the scheme comes crashing down, you want to make grandma as whole as possible and force the people around the wrongdoer to disgorge as many of the goods purchased with that stolen money as possible. You probably cannot criminally charge most of those folks; so, the only real way to get the money back is civil forfeiture followed by a sale.
Again, that seems roughly equitable. Those people shouldn’t have a yacht paid for with grandma’s money when she’s still eating cat food. Similarly, the successful marijuana grower shouldn’t be driving nice cars, or buying nice houses and things with the proceeds from an illegal sale. Wherever you draw the line on wanting to forfeit proceeds, the fact remains that they are the product of an illegal action, which is the fact that matters. As such, you generally do not have a property interest in the proceeds. And that means you cannot use the law to protect an unlawful interest.
No one really cares about forfeiture of patently illegal instrumentalities such as drugs; it’s forfeitures against the proceeds that really get people worked up. In the Texas case above, it was a Lincoln Navigator. The court states that it was undisputedly proceeds of criminal activity; yet, Andrew feels that suppression was warranted. Scott Greenfield is worried about law enforcement seizing funds from gift cards and pre-paid debit cards. (Although, Scott appeared more worried about the bottom of the slippery slope and less about the start of it.) And David Meyer Lindenberg writes about a guy who claims the government wrongfully took his life savings, despite having a jury trial. Plus, I have written about it too.
Besides the general distrust of governmental officers, the general concerned raised by the anti-civil forfeiture crowd (or less charitably the let-the-bad-guys-keep-their-illegal-stuff crowd), who are in favor of abolishment, is that the current system of civil forfeiture lacks due process without a conviction. This is another opportunity to remind everyone that you don’t have recognized property rights in illegal things.
Regarding due process, when the government takes something away from you due process rights come in two flavors: pre or post deprivation. Generally speaking, the Constitution favors pre-deprivation hearings. So, if the government wants to condemn your house, then it usually has to give you a hearing before the wrecking ball starts and not after. But there are circumstances where the government may deprive you of your property and then offer you a hearing.
As much as some people might not like it in certain cases, we’re accustomed to pre-deprivation hearings and thus tend to think of them as not being unjust. Because illegal proceedings such as cash, gift cards, personal property, and to some degree cars are movable, difficult to track, and/or easy to convert into something else, there is a need to seize that property right away upon the officer’s judgment and then offer some post-deprivation process. And it is the seizure first, hearing second scheme that some reflexively view as an anathema to the legal system.
In the context of civil forfeiture, this means that you get a hearing just like you would have if the government had waited until afterwards to take your property. Regardless of whether the hearing happens first or second, the government must demonstrate that the property is contraband, i.e. property without a legally enforceable property interest. If the government can demonstrate that, then your due process rights are satisfied because you’re not entitled to maintain a suit to protect contraband, just like you can’t sue the drug dealer that stole your money and didn’t give you the drugs.
While it’s understandable that we don’t like people to take our stuff without a court order, that feeling blinds too many to the fact that due process is provided in civil forfeiture. And if the state fails to provide adequate due process, then there remains the potential to bring a civil rights action. Yes, in civil forfeiture you’re temporarily deprived of your property until the government fails to prove its illegality. But as the guy in David’s post demonstrates, the end result is what really makes people mad—not the actual lack of due process. Yet, it would make less sense to let the guy take off with his suitcase, bring a lawsuit, and then attempt to collect the 100k through liens and garnishments.
Returning to the Texas case Andrew wrote about, the Texas court ultimately got it right. The constable blundered so the defendant goes free. But if the state can prove that the property is contraband, then the defendant has no interest to protect. We wouldn’t say that if a health/zoning inspector trespassed on the property that the state should be prevented from condemning that property. As different as it may feel when the state actor has both a badge and gun, it’s not really that different as the trespassing inspector.