Mimesis Law
9 July 2020

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.

18 Comments on this post.

Leave a Reply



Comments for Fault Lines posts are closed here. You can leave comments for this post at the new site, faultlines.us

  • Scott Jacobs
    21 June 2016 at 10:15 am - Reply

    This is galloping horseshit, but it is exactly what I expected from you.

    It is not due process if the cops take my stuff and the burden is on ME to show that the property they took is legitimate. Not to mention if the criminal case is a failure, they don’t automatically have to give my stuff back.

    Arguing that we don’t expect to give back the bag of crack, so why give back anything else, is idiotic. Drugs are illegal, my CAR is not.

  • Arnold Williams
    21 June 2016 at 10:39 am - Reply

    “But if the state can prove that the property is contraband, then the defendant has no interest to protect. ”

    That is the point of contention. The state does not have to prove anything, other than recite a “reasonable suspicion”, not necessarily tied to the property. It is the person whose property is forfeited who has to “prove” that the items are his legitimate property.

    “Your honor, this road is a known route of drug smugglers through town. The vehicle acted in an unusual manner, and, my suspicion aroused, I believe that they had just made a sale.”

    And with that tenditious and silly couple of sentences, the state makes its case. The other side has to produce witnesses, paperwork (how many receipts do you carry on you?), and find out why the policeman thinks driving the speed limit on Acacia Lane is suspicious. The truth is that the imagination of the policeman has been corrupted by the suggestions of others, and that the offense was between his ears.

    • Andrew King
      21 June 2016 at 11:11 am - Reply


      In most places the state does have to prove by a preponderance of the evidence that the item in question is the proceeds of criminal activity. For example, let’s say they seize 20k in cash during a vehicle stop and for some reason cannot get a criminal conviction, maybe there are multiple occupants and constructive possession can’t be proved to the driver. So the forfeiture proceeds civilly instead of criminally.

      Here, the State would publish notice and send it to all the folks in the car and possibly some other people. If one of the occupants showed up and said, as in David’s article, ‘it was my life savings and I was on my way to buy a boat–give it back,’ then the State would have to prove that the money was criminal proceeds. This might be done by demonstrating that the guy has no regular job and hasn’t for some time, the last several years of W2s or tax returns show that he made little to no money, and that he’s been engaged in the drug trade. Then the defendant may argue it was a gift, which then starts the process of the state demonstrating that it wasn’t the gift.

      So, the guy has no solid employment for the last ten years, the “savings” represents more than he’s legitimately made in five years, never mind costs like rent, food, etc. but he’s a notorious and previously convicted grower of high-end marijuana, what is more likely than not? So, it’s not at all like a suppression hearing, with the officer testifying to his impressions.

      At least here, it proceeds, as I suggested in the article, like a pre-deprivation hearing for just about anything the government wants to take, just after the fact. Litigating it can be time consuming. Plus, forfeiting something as an instrumentality here requires an extra step: http://codes.ohio.gov/orc/2981.09

      All of this, and more, is why I think most prosecutors usually do things here as criminal forfeiture. There’s only one county that I can think of that has robust civil unit doing forfeitures.

      My larger point here and in the other piece is that there are some circumstances where you cannot always get a conviction and you need some form of civil forfeiture, which is why I think Institute for Justice is wrong to make that it’s primary criterion for judging systems. That doesn’t mean that individual state systems fail to have sufficient safeguards. But you can’t paint with such a broad brush then.

      • MS
        21 June 2016 at 1:07 pm - Reply

        “At least here, it proceeds, as I suggested in the article, like a pre-deprivation hearing for just about anything the government wants to take, just after the fact.”

        Of course, that whole “just after the fact” part makes a big difference if the guy is telling the truth about it being his life savings, right? Such a person is probably going to have a tough time finding an attorney to help him make his case. Or if its his car that was seized, he may not be able to show up to the hearing at all.

        You also dodged the point about what is actually needed for the state to win by preponderance of the evidence. Of course the State can prove something by, as you say, “demonstrating that the guy has no regular job and hasn’t for some time, the last several years of W2s or tax returns show that he made little to no money, and that he’s been engaged in the drug trade.” But does it have to do all of that? Or can it win simply by saying, as Arnold suggests, that the officer’s experience led him to believe that the holder of the cash received it via a drug deal? I mean, if we are talking preponderance of the evidence, most people probably already think that a person driving around with $20K is more likely than not a drug dealer. And if people aren’t predisposed to think that someone with a substantial amount of cash on them is innocent, then it doesn’t really take much (if anything) to meet that preponderance standard.

      • Christopher Best
        21 June 2016 at 1:17 pm - Reply

        “My larger point here and in the other piece is that there are some circumstances where you cannot always get a conviction and you need some form of civil forfeiture”

        And I think that’s where people who aren’t Cops and Prosecutors disagree: If you can’t get a conviction, that doesn’t mean the department gets a new margarita machine as a consolation prize.

  • phroggie
    21 June 2016 at 10:40 am - Reply

    You had me up until the “let-the-bad-guys-keep-their-illegal-stuff” parenthetical, namely because I got confused about which side you were arguing for.

    I don’t think that anyone wants the murderous cartels, or the lowly corner dealers, or even Ponzi’s mistresses to be able to keep their ill-gotten gains (excepting, of course, said dealers, mistresses, and dependants, etc.). But seizing those assets (both ill-gotten and otherwise), forcing the accused into a civil court to skirt any sixth amendment assistance, based, at least immediately, solely on an officer’s prima facie “gut feeling” of guilt; that is not how this country was built. As soon as the application of such seizures are limited solely to the guilty, then I’m on board. Until then, the burden lies squarely upon the health/zoning inspectors to heed the numerous and obnoxious “Trespassers will be shot” placards.

  • David C
    21 June 2016 at 11:20 am - Reply

    But the government doesn’t have to demonstrate that the seized property is contraband; that’s the main complaint. It need merely allege it to be so, and dare the owner to prove otherwise (at his or her own expense).

    And your restitution story is a red herring: because the government doesn’t need to show the property is connected to any specific crime with specific victims, even if it wanted to make the victims whole, it could not.

  • Scott Jacobs
    21 June 2016 at 11:33 am - Reply

    In most places the state does have to prove by a preponderance of the evidence that the item in question is the proceeds of criminal activity.

    Name one, and give a citation to support your claim.

    • Andrew King
      21 June 2016 at 11:40 am - Reply

      Because you asked so nicely, and I can only presume that you lost your ability to type things into Google due to a terribly unfortunate meat grinding accident, here you go: R.C. § 2981.05 (Ohio)

      • Scott Jacobs
        21 June 2016 at 4:42 pm - Reply

        I’m sorry, are you not used to being asked to back up your bullshit?

        Terribly sorry.

  • Greg Prickett
    21 June 2016 at 3:24 pm - Reply

    Andrew, most states have a criminal offense for when an officer violates the Constitutional rights of a citizen, even a citizen who is a criminal. In Texas it is called Official Oppression for an officer to take action that “intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful.”

    So if the officers violated the law, why aren’t any of them being charged? Is it somehow OK for the officers to violate the law, but not OK for everyone else?

    I get that we don’t want people to reap the benefits of crime, but in the case at hand the officers did not have reasonable suspicion, yet stopped Miguel Herrera, arrested him, and seized his vehicle. Isn’t that a criminal act on the part of the officers?

    How is one acceptable, and the other not?

  • PVanderwaart
    21 June 2016 at 7:37 pm - Reply

    In any reasonable sort of analysis, as apart from law enforcement, you form a hypothesis and look for evidence to support the hypothesis. You don’t get to use the information that suggested the hypothesis for the support. So, for instance, if you see a car driving through town and form the hypothesis that perhaps the driver just bought drugs, you need to find some support when you stop and search the car. If you don’t find drugs, you got nothing. And cops are taking peoples’ property based on nothing.

  • Chris
    22 June 2016 at 7:12 am - Reply

    I still can’t think of a good reason why the government should be as to seize your house, car, and life savings without a jury verdict that the property is ill-gotten gains. And why the evidence the government is allowed to present should not be subject to basic constitutional protections like the 4th…

  • Scott Jacobs
    22 June 2016 at 9:26 am - Reply

    Because think of the kids…

    Why do you love criminals?

  • Donald
    22 June 2016 at 4:23 pm - Reply

    Thank you so much Andrew for continuing to validate every spiteful thing I’ve ever said about prosecutors.

    Gold Star

  • Richard G. Kopf
    22 June 2016 at 11:39 pm - Reply


    Civil forfeitures are bad ’cause, well, they’re just bad. All the best.


  • To Retain Gun Rights, Just Be Perfect
    15 July 2016 at 9:11 am - Reply

    […] require hearings before we remove life, liberty, or property. It’s because holding the hearing later doesn’t do much to curb potential injustice. And a remedy like mounting a federal challenge […]

  • Even Inmates Deserve Some Due Process
    18 November 2016 at 9:17 am - Reply

    […] idea of due process is another one of those deceptively simple ideas that turns out to be quite complex. At its basic, […]