On July 12, 2017, The Department of Justice announced a policy that makes it easier for police to take people's property without charging them with crime, overriding Florida laws banning this practice. That policy is called civil asset forfeiture, and it allows police to seize any property they think could have been used in a crime.
In 2016, the Florida Legislature had unanimously passed a law banning police from taking people's property under most circumstances unless they are charged with a crime. Regardless, year after year police departments profit over 20 million dollars from their use of the forfeiture process.
The legal standards for the different types forfeiture are distinct. Criminal forfeiture can only be conducted if a person is convicted of a crime and if the property's connection to that crime is proven. Civil forfeiture, in contrast, is an action against the property, rather than its owner. Therefore, this type of seizure is not contingent upon a conviction, and the standards of proof are often lower. Administrative forfeiture is a civil proceeding that is instituted by a governmental agency, allowing the federal seizing agency to forfeit the property without judicial involvement. This type of forfeiture is handled internally by the government and does not involve court litigation. Compared to the other two other types of asset forfeitures (civil forfeitures and criminal forfeitures), administrative forfeitures are prevalent, accounting for about 80 percent of all federal forfeitures.
There are numerous state and federal statutes that trigger asset forfeiture, allowing the government to seize an asset by providing sufficient evidence linking the property in question with some illegal activity, regardless of whether the connection is substantial or not. As long as there is a certain level of probable cause, then this is enough for the government to seize and forfeit an asset. To prevent the government from seizing an asset, the rightful owner should act in time by hiring an asset forfeiture attorney and claiming their property rights.
One active civil forfeiture case involves Jim Ficken, a 69 year old retiree in Dunedin, Florida, who left his friend to attend to his grass while he was tending to his deceased mother’s estate in South Carolina. Unfortunately during his visit, Jim's friend passed away and there was no one left to mow it. During that time the grass grew pass the allotted height and a code officer noticed. Dunedin has a repeat offenders policy, the officer invoked it and the city began to assess fines immediately. Each day that went by with the grass being uncut Jim was fined $500 without a phone call or mail from the city notifying him. A few weeks later Jim was standing outside his home when the code officer arrived to check his yard, the officer told Jim, "You will get a big bill from the city." Jim is at risk of losing his home because he doesn't have $29,833.50 to pay the insane fines.
Black people account for 13% of the population but somehow make up more than 65% of asset forfeitures. Police departments and municipalities make it an expensive endeavor to challenge let alone reclaim the "seized" property. There are a couple of likely reasons blacks are targeted at greater rates. First, they are more likely to run businesses like barber shops or yard care that operate on cash payments. And second, they are more likely to be pulled over in traffic stops, said Ngozi Ndulue, recently a national NAACP senior director, now working at the Death Penalty Information Center.
Prior to the change in law in Florida and in many other states, the owners of the property had to prove innocence—even when there are no charges yet filed and certainly before there is any conviction. In fact, in over 80 percent of all civil asset forfeiture cases in the United States, the owners of the property were never even charged with any crime. Yet law enforcement can and does keep the property. The hurdles owners have to pass to challenge the forfeiture are legally complex and expensive.
As hard as it is to believe, civil asset forfeiture has been an important law enforcement “weapon” – or better termed, a legal way to fund law enforcement coffers. That is what happens to the assets seized – the “proceeds” go directly to the seizing agency. Unamerican? Perverse? Legal theft? Yes, and more. And the United States Supreme Court agrees!
On February 20, 2019 and in a unanimous decision, Timbs v. Indiana, 586 U.S. ___ (2019), the Supreme Court ruled that civil asset forfeiture is a violation of the Eighth Amendment’s prohibition against excessive fines. The ruling is applicable to all 50 states under the Fourteenth Amendment. Although it received little press, this is an important decision. Civil asset forfeiture not only has become a major source of funding for many law enforcement agencies but has been used as an intimidation tool by the police. Under this ruling, civil asset forfeiture is prohibited in all 50 states. The decision, authored by Justice Ginsberg, is short and sweet.
Justice Ginsberg observed that the Excessive Fines Clause (under the Eighth Amendment) dates back to the Magna Carta (for those who forgot their history lessons, that document was written in 1215) and has carried forward throughout English and American law to the modern era where it was enshrined in the Eighth Amendment. Justice Ginsberg noted that there is a good reason the prohibition against excessive fines have been a continuous feature of Anglo-American law: excessive fines weaken the citizenry’s civil liberties to benefit state power and revenue. Unfortunately, all these hazards became a feature of civil asset forfeiture in the United States. It is, quite frankly, surprising to me that it took this long. Law enforcement has been stealing from the public under the guise of civil asset forfeiture for over 40 years.