Pubdate: Thu, 05 Jun 2014
Source: Forbes Magazine (US)
Copyright: 2014 Forbes Inc.
Author: Nick Sibilla


Texas law enforcement are continuing to enrich themselves using a
little-known legal doctrine known as civil forfeiture, according to a
new series of investigative reports. Under civil forfeiture, property
can be forfeited even if its owner has never been charged with a
crime. In these proceedings, accused criminals have more rights than
innocent owners and the government sues the property, not its owner.
These cases can be so baffling, one Texas Supreme Court Justice
recently compared civil forfeiture to Alice in Wonderland and the
works of Franz Kafka. But civil forfeiture isn't just a quirky
curiosity-it's a powerful incentive for law enforcement to take millions.

Last month, the Fort Worth Star-Telegram reported that the District
Attorney's Office in Tarrant County, Texas seized $3.5 million, plus
almost 250 cars and 440 computers in fiscal year 2013, roughly equal
to about 10 percent of its budget. Of the property seized, almost
$845,000 was spent on salaries for 16 employees at the office. By
comparison, only $53,000 went to "six nonprofits that benefit victims
or prosecution efforts." The county's narcotics unit spent an even
greater proportion of forfeiture funds on salaries. Last year, the
unit seized $666,427 in cash and used $426,058 to pay salaries.
Policing for Profit

Policing for profit

Even more property was forfeited by participating in a federal program
known as "equitable sharing." By partnering with a federal agency,
local and state law enforcement can keep up to 80 percent of the
proceeds from a forfeited property. Incredibly, police can collaborate
even if doing so would circumvent their own states' protections for
property owners.

Equitable sharing doled out almost $60,000 to the Arlington Police
Department and nearly $400,000 to the Dallas/Fort Worth Airport
Department of Public Safety in 2013. A joint task force composed of
the Tarrant County DA's Office and the DEA received almost $2.9
million, one of the highest bounties in the state.

In Texas, law enforcement can keep up to 90 percent of the proceeds
from forfeited property. That clearly affects police priorities and
provides an incentive to pursue cases rich in assets. In another
article, the Star-Telegram delved into the forfeiture battle that
ensued after law enforcement busted a low-level drug ring at Texas
Christian University (TCU). Police arrested twenty-three people for
selling marijuana, pills and other controlled substances. Most of
those arrested were TCU students, including four members of the
football team. No one went to prison; they got probation, deferred
adjudication or the charges were dismissed. Others received
punishments as low as $300 in court costs.

Yet by using civil forfeiture, police seized over $300,000 worth of
propertyfrom the students, including 15 cars, trucks and SUVs valued
at more than $250,000; over $46,000 in cash; and over $17,000 from
laptops, iPads, iPhones and the like. As the paper noted, "The items
were seized before formal charges were filed and months before any
convictions." But according to an after-action report issued by the
Fort Worth Police Department, the drugs seized in the investigation
only had an estimated street value of $29,000. So the property seized
was worth far more than the drugs that were actually taken off the

Civil forfeiture creates a "perverse incentive" and "skews law
enforcement priorities," noted Allen St. Pierre, the executive
director of the National Organization for the Reform of Marijuana Laws
(NORML). "It's one of the worst stepchildren of the war on some drugs."

Among the TCU cases, cash and electronic devices were typically
forfeited to the state. As for the cars, some students were able to
retrieve them, but only after months of waiting and negotiations. One
student paid $7,500 in an "economic agreement" with Tarrant County to
retrieve his Cadillac Escalade. Another person sent $17,500 to the
county's narcotics unit to get back his Ford F-150.

Across the state, pursuing forfeiture cases related to cannabis has
generated millions for Texas police. Between 2002 and 2012, the
federal government processed $64.3 million in cash and other valuables
in civil and criminal marijuana forfeitures in Texas. According to the
Wall Street Journal, that amount is the fourth highest in the nation.
"Police power cannot go unpoliced"

Texas law enforcement has a long history of policing for profit. The
Institute for Justice found that the average law enforcement agency in
Texas took in forfeiture proceeds equal to about 14 percent of its
budget in 2007. Among the 10 agencies that obtained the most
forfeiture proceeds, that figure soared to one-third. Between 2001 and
2007, law enforcement agencies seized and kept over 35,000 cars, homes
and electronics, forfeiting more than $280 million. District attorneys
have used these forfeiture funds on ridiculous purchases, including
visiting casinos, a vacation to Hawaii and a margarita machine, as
seen in the video below.

Most infamously, police in Tenaha seized over $3 million from hundreds
of drivers and even made "cash-for-freedom deals" with drivers. As The
New Yorker reported last August, drivers "would go to jail and their
children would be handed over to foster care. Or they could sign over
their cash to the city of Tenaha, and get back on the road."

"The Texas criminal justice system wages war on the politically
powerless and the poor are just grist for the mill," remarked Robert
Guest, a former prosecutor in Texas and now a member of Law
Enforcement Against Prohibition (LEAP).

Despite enacting some modest reforms in 2011, the Lone Star State
still has an appalling lack of safeguards for property owners. To
forfeit property, the government needs only to show by a
"preponderance of the evidence" that someone's property is related to
a crime. But in criminal convictions, the government must prove
someone is guilty beyond a reasonable doubt, a much higher standard.

Unfortunately, Texas isn't an outlier. According to the Institute for
Justice's report, "Policing for Profit," 19 other states use the
preponderance-of-the-evidence standard in civil forfeiture cases.
Another 14 states require even less evidence to forfeit property.

The cost to defend oneself in court further stacks the deck against
property owners. "Unlike a criminal charge, you do not have the right
to court-appointed counsel when the government wants to take your
property," explained Guest. "So the state usually wins their case by
default judgment."

Tarrant County is no exception. Last year, the District Attorney's
office filed 431 cases, but almost half of them were never contested.
Less than 10 percent of cases actually went to trial. One attorney in
Fort Worth noted that litigating complicated civil forfeiture cases
can cost anywhere from $25,000 to over $100,000.

The odds of an owner winning a forfeiture case are further lowered by
the reverse burden of proof in Texas. Incredibly, innocent owners
actually bear the burden of proof in civil forfeiture proceedings. In
other words, they are guilty until proven innocent.

Zaher El-Ali lost his car to the government because someone else got a
DWI with his car. Back in 2004, Ali sold a 2004 Chevrolet Silverado to
a man who paid $500 and agreed to pay the rest on credit. In 2009, the
buyer was arrested for a DWI and sentenced to prison. Police in Harris
County also seized the Silverado for civil forfeiture. But since Ali
still held on to the car's title and the Silverado was registered in
his name, he partnered with the Institute for Justice and sued to get
his car back. Ali petitioned the Texas Supreme Court to hear the case.

In March, the court declined, meaning Texas gets to keep one more
Chevy. In a scathing dissent, Justice Don Willett, joined by two other
justices, lambasted the court for deciding not to hear Ali's case.
Justice Willett also criticized the profit incentive ("When agency
budgets grow dependent on asset forfeiture=C2=85constitutional liberties
are unavoidably imperiled") and the reverse burden of proof ("owners
trying to retrieve their homes and other possessions bear a heavier
burden than the government that confiscated them").

To that end, the Texas legislature should enact a series of
common-sense reforms. First, take away the incentive to police for
profit. Instead of allowing law enforcement to keep up to 90 percent
of the proceeds, mandate that those funds be deposited in either the
general fund or in a specific neutral fund, like feeding the homeless.

Second, forfeiture should require a criminal conviction. Last month,
Minnesota lawmakers overwhelmingly approved such a measure. Third, the
government must bear the burden of proof when it comes to innocent
owners. This would better protect the property rights of Texans like

Finally, to prevent cops from collaborating with federal agents and
doing an end-run around these reforms, legislators should greatly
restrict local and state law enforcement agencies from participating
in equitable sharing. Utah once had a very effective ban that
essentially killed equitable sharing in the state, until lawmakers
defied the will of the voters and overturned it.

These reforms would go far in restoring constitutional protections to
Texans. As Justice Willett succinctly put it, "police power cannot go
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