Most people might think that the police can’t take and keep your property unless they can prove that you used it in illegal activities. Most people would be wrong.
Under state and federal civil asset forfeiture laws, which are increasingly garnering national attention, police can take property they suspect has somehow been involved with criminal activity. The problem is that they don’t have to prove this. The property – cash, vehicles, and sometimes real estate – can be taken not only without a criminal conviction or even a warrant, but sometimes without formally charging the property owner of a crime at all. And when police departments are allowed to use the funds they take as revenue for themselves, as they often can and do, this creates perverse incentives for abuse.
Lawmakers in Minnesota were convinced to reform their asset forfeiture laws after a series of scandals in Minnesota, where the Metro Gang Strike Force was shown to have abused its authority by illegally seizing property, conducting specious raids and generally using excessive force. Forfeiture funds were used to pay for trips to Hawaii and officers were unable to account for thousands in funds and vehicles that went “missing.” The reform bill, passed by large bipartisan majorities and signed by Gov. Mark Dayton, brought much-needed changes to the state’s asset forfeiture system. Now, police can only seize property after a criminal conviction or if the property owner confesses to a crime connected to that property.
One would be naïve to think Illinois is immune to similar abuse. Illinois’ Drug Asset Forfeiture Act permits officers to seize property if they have “probable cause” – a relatively low standard of proof – that the property could be involved with illegal activity. It’s no surprise that in one study, Illinois received a “D” for its asset forfeiture rules.
Once property is taken, it falls on the owner to file a claim to get it back. Then the owner has the burden of proving in court, by the higher “preponderance of the evidence” standard, that his or her property should be exempt from forfeiture. Possible defenses include that the property isn’t connected with any illegal activity; that the owner did not know about any illegal activity that others committed on their property; or that the activity happened without the owner’s knowledge. This is a bizarre reversal of what we expect under the law. Normally, we’re considered innocent until proven guilty – not forced to go into court to justify why we should be allowed to keep our property.
In some cases, the law allows for up to 187 days before a forfeiture hearing is required to take place. Imagine having your vehicle impounded for over six months while waiting for the mere opportunity to challenge the seizure in court. How would you commute to work? How could you buy groceries or pick up your children from school? Is this how our justice system is supposed to work?
Worse yet, many victims of asset forfeiture can’t even contest the property seizure in court, simply because the cost of retaining legal counsel often exceeds the value of the property that was taken. Thus, if the amount taken is small enough, police can reliably seize property without expecting any legal challenge. Whether it’s because the owners can’t afford representation in the first place or because attorney’s fees cost more than the seized property itself.
This is unacceptable. If limited, constitutional government stands for anything at all, it should prevent the government from seizing private property without the benefit of a conviction at trial. Because many people can’t even afford to challenge their seizures in court, a legislative solution will be necessary to correct this injustice.
If Minnesota’s legislators were able to rein in these overreaching laws, Illinois ought to demand the same from our representatives as well. Civil asset forfeiture must be reformed.