The debate over when the government should be allowed to seize private property is older than the U.S. government itself.
Written by Texas Tribune
(TT) — In February 2016, prosecutors in Houston filed a lawsuit against a truck: State of Texas vs. One 2003 Chevrolet Silverado.
Houston police had seized the vehicle after surveilling its driver, Macario Hernandez, and pulling him over after he left his house. They took the truck to court, hoping to keep it or sell it at auction to fund their operations, claiming the vehicle was known to be involved in the drug trade.
But the truck’s owner, Oralia Rodriguez, was never charged with a crime. She wasn’t at the scene when officers pulled over Hernandez, her son, and found 13.5 grams of marijuana in his pocket. In fact, Rodriguez said she had recently loaned him the car so he could drive his pregnant girlfriend to the doctor. The girlfriend was having difficulty with her pregnancy and was at risk of losing the baby, Rodriguez said. She was desperate not to lose her truck, which had recently had new tires installed among other repairs, which she was still working to pay off.
“My sole intention was to help out. … Now I am in this situation of losing what I have worked very hard for,” she wrote to local prosecutors. “I am begging you please allow me to have my truck back.”
Seven weeks after police pulled over the truck, the Harris County District Attorney’s Office resolved the suit and agreed to release the vehicle back to Rodriguez, on the condition that she never loan it to Hernandez. But Rodriguez still had to pay $1,600 to get her truck back, plus any towing and storage fees it had accumulated over the course of the lawsuit. (Hernandez pleaded guilty to delivering drugs and spent several months in jail.)
What happened to Rodriguez was perfectly legal. Under a process known as civil asset forfeiture, law enforcement can take cash and property they believe to be related to criminal activity, even if the person involved is never charged with a crime. Prosecutors then file suit against the property, and if successful, police may keep much of it for their own purposes.
Civil asset forfeiture is a tool supported by law enforcement leaders, who say it is necessary for fighting crime, but panned by both liberals and conservatives who see it as a violation of Americans’ civil liberties and sometimes refer to it as “policing for profit.” It’s a longstanding, nationwide practice that has regained steam under the Trump administration but faces constitutional challenges in court.
When police seize a person’s property, the onus falls on the owner to prove the property was “innocent,” or not linked to a crime. If a person doesn’t fight the seizure in court — which is what happens in the majority of cases — they lose their property automatically. Many cases involve property worth no more than a few thousand dollars, and attorneys’ fees can end up being more costly than the value of the property itself.
Last year alone, law enforcement agencies and prosecutors throughout Texas grew their coffers more than $50 million by seizing cash, cars, jewelry, clothing, art and other property they claimed were linked to a crime. That includes property seized under both criminal forfeiture — which requires someone to first be found guilty of a crime — and civil forfeiture, which allows the state to sue the property itself and doesn’t require a criminal charge. The Texas Attorney General’s Office, which tracks these figures, does not distinguish between the two.
How much property and money was seized from people, like Rodriguez, who weren’t charged with any crime? That information isn’t collected in any meaningful way in Texas, and state lawmakers, at the urging of prosecutors and law enforcement, have resisted attempts to report more detailed information about asset forfeiture to the public.
“One wonders if our colonial ancestors, transported to 2014, would be astonished — watching government seize, then sell, the property of guiltless citizens who have not been charged with any crime, much less convicted of one,” former Texas Supreme Court Justice Don Willett, a Republican who has since been promoted to a federal appeals court by President Donald Trump, wrote in 2014. “A generation ago in America, asset forfeiture was limited to wresting ill-gotten gains from violent criminals. Today, it has a distinctive ‘Alice in Wonderland’ flavor, victimizing innocent citizens who’ve done nothing wrong.”
Extreme cases of abuse have occasionally grabbed the attention of the public and of lawmakers, who in 2011 made a rare move to rein in police seizures. That followed a lawsuit brought by the American Civil Liberties Union a few years before, which alleged that police in the tiny East Texas town of Tenaha were conducting “highway robbery” by shaking down drivers — primarily people of color — for cash under threat of jail time. The suit accused law enforcement in Tenaha of threatening to have children removed from their families if the drivers they’d stopped on U.S. Highway 59 didn’t sign waivers allowing officers to seize their property without a court proceeding.
From 2006 to 2008, officers in Tenaha seized approximately $3 million from at least 140 people, according to the lawsuit, which was ultimately settled with local law enforcement not admitting to wrongdoing. With the lawsuit in the news, Gov. Rick Perry in 2011 signed legislation prohibiting the use of such waivers, forcing all forfeitures to go through court.
The law also limited how law enforcement can spend the money they seize, banning officials from using it to pay for things like margarita machines, as former Montgomery County District Attorney Michael McDougal did in 2005 — or trips to Hawaii, as a former Hill Country district attorney, Ron Sutton, did from 2002 to 2007. The legislation passed just months after a former South Texas district attorney pleaded guilty to misappropriating more than $2 million in seized funds, paying $1.2 million in bonuses to three secretaries and another $81,000 to himself.
The 2011 law faced almost no opposition, but some Democrats and Republicans at the Texas Capitol have called for further reforms to an asset forfeiture system they believe is inherently abusive. Lawmakers on the left cite forfeiture’s disproportionate effects on low-income people of color who can’t go to court to fight back. Those on the right cry out against government overreach that infringes on private property rights and snubs due process.
In recent years, however, most efforts to change the system have fallen flat at the Capitol. Sheriffs, prosecutors and police have urged lawmakers not to further limit a power they say is crucial to their ability to fight crime and drug cartels — and which they say was already cleaned up by the 2011 law. Law enforcement officials say taking money and drugs linked to cartels is one of the most effective methods they have to fight them.
“We’re sitting here at the tip of the spear of cartel activity, and we need asset forfeiture as a tool,” Jackson County Sheriff A. J. “Andy” Louderback said. “It’s a viable tool that we’re not misusing. … There’s accountability in the system that’s been there for a very long time.”
The battle over reform will continue in January when the Texas Legislature convenes for its biennial session. At least two lawmakers have already filed bills that would limit asset forfeiture’s scope, and the Texas Republican Party asked lawmakers to abolish asset forfeiture without a criminal conviction in their 2018 platform. Still, reformers face long odds: Gov. Greg Abbott and Lt. Gov. Dan Patrick have remained almost completely silent on the issue, and after last month’s elections, advocates lost one of their most vocal Republican allies in the Texas Senate.
“A great threat” to property rights
Outgoing state Sen. Konni Burton, R-Colleyville, was so incensed about civil asset forfeiture that she led a press conference early in the 2017 legislative session to announce that a bipartisan coalition of lawmakers was ready to reform the practice. They filed a slew of bills that proposed significant changes to police power, ranging from a total abolition of civil asset forfeiture — by requiring a person to be found guilty of a crime before their property can be forfeited — to requiring more disclosures from law enforcement agencies about how and when they use it.
Other bills sought to help people whose property was seized, such as by making the government pay for any lawyer or court fees if the state loses or drops the case. Another proposal would have placed the burden of proof on law enforcement, rather than on property owners fighting to reclaim their possessions.
“Unknown to many, including some lawmakers, a great threat to the property rights of Texans is staring us right in the face,” said Burton, who lost her re-election bid in November. “The seizing and keeping of an individual’s property without a criminal conviction is in opposition to everything this country was founded upon, and it must change.”
But as Burton discovered as the legislative session unfolded, any effort to rein in asset forfeiture faces strident opposition from law enforcement and local prosecutors — groups that most Texas legislators don’t like to publicly challenge.
“Many times in my law enforcement career, we could not have been effective in doing away with gangs, drug cartels and whatever without the civil asset forfeiture,” Smith County Sheriff Larry Smith said during the only committee hearing held to discuss civil asset forfeiture bills in the 2017 legislative session. “Many times forfeiting civil assets is the only way you’re going to get to the kingpin of the operation.”
At least 15 asset forfeiture reform bills were filed in the House or Senate last year. But not a single bill made it onto the floor for debate. The chairwoman of the committee to which many of the Senate bills were referred, state Sen. Joan Huffman, R-Houston, didn’t even hold a hearing on her own bill. (Huffman declined to say why but said she plans to file the same bill again next year.)
“The failure of forfeiture reform boils down to legislative gamesmanship and strategy, not a debate on the merits,” said Arif Panju, an anti-forfeiture advocate at the libertarian Institute for Justice, whose downtown Austin office is decorated with a “Don’t Tread on Me” poster signed by U.S. Sen. Rand Paul, a Kentucky libertarian. “I would be shocked if folks did not recognize this as a problem at the highest levels of government.”
Yet, at the highest levels of government, President Donald Trump and his recently departed attorney general, Jeff Sessions, have spoken favorably of civil asset forfeiture, with Trump even telling a Texas sheriff last year he could “destroy” the career of an unspecified state senator who wanted to end the practice. Sessions, while at the helm of the U.S. Department of Justice, resurrected a federal policy intended to increase seizures throughout the country, though he did modify it to avoid improper forfeitures.
“With care — we’ve gotta be careful — and professionalism, we plan to develop policies to increase forfeitures,” Sessions said in July 2017.
Fuel for America’s revolution
The debate over when the government should be allowed to seize private property is older than the U.S. government itself — and it helped spark a revolution. The British Crown’s abuse of “writs of assistance,” which allowed customs officials to seize what they considered contraband from homes and suspected pirate ships, outraged American colonials so much that the Founding Fathers counted it among the grievances justifying a break from Britain.
John Adams wrote that anti-forfeiture opinion “breathed into this nation the breath of life” and was one reason “the child of Independence was born,” according to historian Maurice Henry Smith.
After the U.S. won independence, the new federal government promptly gave law enforcement the same power to seize private property, as a tool for fighting crime. But historians believe the power was only infrequently used until Prohibition, when police seized vehicles used to transport alcohol. Most legal scholars agree that the current era of asset forfeiture began in the 1980s, ushered in by the war on drugs.
In 1984, the U.S. Comprehensive Crime Control Act gave federal law enforcement broad, unprecedented authority to seize property used to “facilitate” a drug offense. Suddenly, police needed to find only a loose link between a piece of property and an alleged criminal act.
The amount of money government agencies brought in through forfeiture skyrocketed in the following decades. In 1986, the U.S. Department of Justice’s asset forfeiture fund took in $93.7 million, according to the Institute for Justice. By 2014, annual deposits into the fund reached $4.5 billion.
Many states followed suit, passing their own permissive forfeiture laws, and the money flowed into local agencies. Police departments, sheriff’s offices and local prosecutors came to depend on the sale of seized property for a significant chunk of their annual budgets. In Harris County, home to Houston, the local district attorney’s office received forfeiture funds worth about 5 percent of its budget in 2017.
In some small towns, the seizures became an outright windfall. Take Reeves County, which has fewer than 20,000 residents and straddles two West Texas highways. In 2012, the value of seized assets was 15 times more than the local prosecutor’s annual budget, according to a report funded by the Texas Office of Court Administration.
Police and prosecutors say the money helps pay for their operating costs, such as computers, vehicles, training and travel, as well as crucial crime-fighting operations, like paying informants. They say the current system is working as intended.
“We are a decade removed from the last big, quote, so-called abuse in Texas. And it was something that was directly addressed by the Legislature,” said Shannon Edmonds, the governmental relations director for the Texas District and County Attorneys Association.
But reform advocates say that while the 2011 legislation was an improvement, it didn’t address what they see as civil asset forfeiture’s underlying potential for abuse.
Derek Cohen, a forfeiture reform advocate with the conservative Texas Public Policy Foundation, said the 2011 bill “patched 25 percent of the holes in our boat.”
The 2011 reforms required agencies that seize citizens’ property to disclose how they spend money they get through seizures — but they don’t have to list what they seized in each case, what offense prompted the seizure and whether they filed a criminal charge or obtained a conviction against the property’s owner.
Several bills filed in recent years have sought to peel back the veil on police seizures by requiring agencies to report that information to the state, but none has ever come close to passing out of the Texas Legislature.
Edmonds said the extra reporting would be too burdensome, taking time and money away from law enforcement’s core mission. Individual asset forfeiture cases are public record, and members of the public are welcome to conduct their own studies, he said.
“The cost outweighs the actual benefit that you’re gonna get” from the reporting requirements, Edmonds said. “The idea that it’s gonna reveal all this great information is kind of a false promise.”
Other proposed legislation would have raised the legal bar for seizing property. Currently, government agencies only have to show that what they seized was more likely than not tied to criminal activity — a standard lower than the criminal bar of “beyond a reasonable doubt.” Those bills failed to pass, too.
Steve Jumes, a Fort Worth attorney who represents clients who have had property seized under civil asset forfeiture, said the majority of cases he sees involve low-level drug offenses in which the value of property seized greatly outweighs the value of the drugs themselves. He described the case of a woman whose husband got caught in possession of drugs worth less than $500. The husband was criminally charged and ended up going to prison, but police also seized the truck he’d been driving when he was arrested.
The man’s wife, who was pregnant, needed the truck for medical appointments and to take her children to day care. Ultimately, lawyers negotiated an agreement in which the woman could buy the truck back from the police department at a reduced price.
“Unfortunately, that’s what success looks like in this landscape,” Jumes said.
Last year, state Reps. Matt Schaefer, R-Tyler, and Terry Canales, D-Edinburg — who stand on opposite sides of the political spectrum — filed legislation to put more onus on the state when pursuing asset forfeiture cases. Schaefer wanted to flip the burden of proof from an uninvolved property owner, like Rodriguez, to the state. He said the current system puts the burden on people to “prove a negative” — that the property is innocent and the owner was unaware of criminal activity.
“Now they’re in court and they’ve got to pay an attorney to figure all this out,” he told lawmakers during the lone 2017 legislative hearing relating to civil asset forfeiture.
Canales sought to raise the bar the state has to meet before it can claim the property. He also wanted to require the prosecution to pay all fees if the owner proved the property wasn’t involved in criminal activity.
“If you make it loser pays, that would rein in much of the abuse that’s going on because the first time that the state’s got to cut a check, they’re going to realize that they themselves can incur liability for doing it wrong,” Canales said. “But as it stands, they’ve got a free ticket to ride. Why wouldn’t they?”
Edmonds said such proposals seek to solve a nonexistent problem and that prosecutors work with innocent owners to return their property.
“People are not showing up to contest [asset seizures] because they did it,” he said. “These people are not coming to court and they’re not coming to the Capitol, so how can we gauge the validity of their argument if they never show up to either place?”
At the legislative hearing, Harris County Assistant District Attorney Angela Beavers testified that only four or five of the county’s up to 1,000 forfeiture cases went to trial last year. State Rep. Harold Dutton, D-Houston, said so few people fight government seizures because they don’t know how to take on the government without a lawyer, a luxury many can’t afford.
“The ones that did got lawyers like me and like Chairman Canales … they got out of it, and they got their money back,” Dutton said. Both lawmakers are also attorneys and have represented clients in forfeiture cases.
The fight for abolition
The most controversial legislative effort is complete abolition of civil asset forfeiture — which would require law enforcement to secure a criminal conviction before they can keep seized property, rather than simply claiming that property was more than likely connected to a suspected crime.
Burton, a Republican, and state Rep. Senfronia Thompson, a long-serving Democrat, filed identical bills last year to do just that. Both died in committee.
Prosecutors, in testimony at the 2017 legislative hearing, responded with scenarios they said exposed shortcomings in the reformers’ proposals. A criminal case is often dropped against a person for reasons unrelated to their guilt — for example, the defendant might plead guilty in another case — but that doesn’t mean the suspected drug money should be returned to that person, Beavers said. A truck found with a hidden compartment containing millions of dollars, she said, might not result in an arrest if police don’t know if the driver was aware of the compartment — even if officers had every reason to believe that money was going to a drug cartel.
“In these cases, asset forfeiture is the key, or virtually the only, way to fight the criminals at the top of the organization,” Collin County Sheriff Jim Skinner told the Tribune.
Dutton argued at the hearing that prosecutors were intentionally ignoring other laws or exceptions that could allow them to seize property in such a case. For example, advocates pointed to police authority to seize abandoned property.
“You’re making up an example that’s false. … You know and I know it’s false,” Dutton told Beavers during her testimony.
Canales, chair of the House subcommittee that held the hearing last year, said he would continue to fight for reforms to a practice he calls “un-American.” He has already filed bills on the issue for the 2019 session.
“The natural enemy of any sort of civil asset forfeiture reform is going to be law enforcement itself because of the amount of money that they receive,” he said. “It’s almost like we’ve turned to the dark side.”
But without support from Texas’ Republican leadership, advocates for reform worry that 2019 will look a lot like 2017: lots of bills that gain no traction. Neither Gov. Abbott nor Lt. Gov. Patrick responded to emailed questions for this story. In the past, Abbott has said asset forfeiture should be used to pay for border security operations.
“We have not seen any sort of public comment that would make me think that this would be a priority item for them,” Cohen said.
On that point, at least, forfeiture supporters and opponents can agree.
“I can tell you this, we rarely get asked about this issue by legislators,” Edmonds said.