Congress Tries Again To Reform Civil Asset Forfeiture Abuses

“The FAIR Act sets a higher bar for seizing private property, but still allows for civil forfeiture in the absence of a criminal conviction. The legislation requires:
“If the Government’s theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish, by clear and convincing evidence, that…there was a substantial connection between the property and the offense; and the owner of any interest in the seized property—(i) used the property with intent to facilitate the offense; or knowingly consented or was willfully blind to the use of the property by another in connection with the offense.”

The bill requires that seizures be conducted in court rather than through administrative processes and also guarantees legal representation for federal forfeiture targets.

The FAIR Act isn’t a perfect bill. Many reformers will object that forfeiture should require the criminal conviction of the person whose money and property is being taken. Draining somebody’s bank account and nabbing their car keys may not be as dramatic as throwing them in a prison cell, but it’s a harsh punishment all the same and should require full due process. Still, some improvement is better than none for a practice that has largely served as an exercise in legalized highway robbery.”

“”Police abuse of civil asset forfeiture laws has shaken our nation’s conscience. Civil forfeiture allows police to seize — and then keep or sell — any property they allege is involved in a crime,” the ACLU points out in a summary of the practice. “Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.””

“”Civil asset forfeiture—which allows the government to take property supposedly linked to crime without charging, let alone convicting, the owner—exploded after Congress started letting law enforcement agencies keep the loot in the mid-1980s,” Reason’s Jacob Sullum wrote in 2015. “Many states followed the federal government’s example, giving police and prosecutors a financial interest in forfeiture by awarding them anywhere from 45 percent to 100 percent of the money it generated.”

That empowered a powerful bloc supporting the status quo at the state and federal level, and it’s not shy about calling out opponents. In Missouri, supporters of forfeiture reform were labeled “anti-police and soft on the war on drugs,” St. Louis Public Radio reported in 2019. That was enough to scare away many lawmakers who traditionally defer to cops and prosecutors.”

Salt Lake City Suspended Use of Police K9s and Nothing Bad Happened, Study Shows

“Cops have long partnered with dogs, claiming they help keep officers safe. But a study published in January suggests that police do just as well without canine colleagues.
In 2020, Salt Lake City suspended the use of police K9 units after The Salt Lake Tribune published body camera footage of an officer ordering his dog to bite a 36-year-old black man who was on his knees with his hands in the air. That abrupt policy shift gave researchers at the University of South Carolina, the University of Utah, and Clemson University a chance to test claims about the benefits of police dogs.

Police say dogs help find hidden suspects, deter resistance, protect officers, intimidate potentially violent crowds, and improve public relations. But the researchers, who reported their findings in the Journal of Experimental Criminology, found that the “sudden suspension of K9 apprehension was not associated with a statistical increase in officer or suspect injury, or suspect resistance, during felony arrests.” The authors concluded that restricting or eliminating police K9s is “unlikely to impact aggregate officer or suspect safety negatively.””

Police Found a Blunt in Their Car. So They Seized Their Kids.

“Bianca Clayborne and Deonte Williams were driving through rural Tennessee with their five young children when they were pulled over. When police found 5 grams of marijuana in the car, Williams was arrested and the five children were seized by local child protective services. One month later, the couple is still fighting to regain custody of their children.”

Sheriff’s Employee Embezzled Funds in Keeping with the Spirit of Civil Asset Forfeiture

“”The misuse of forfeiture funds is shockingly common because civil forfeiture is inherently abusive and non-transparent,” said I.J. Senior Legislative Counsel Lee McGrath. “In just the past few years, we’ve seen a Pennsylvania deputy steal $200,000 from a safe, a Michigan prosecutor embezzle $600,000 in funds, and widespread problems with forfeiture reports in states like Kansas and Oklahoma.”
Notably, Cox’s personal redirection of forfeited assets was discovered in the course of a U.S. Justice Department audit of money acquired through civil asset forfeiture by the Albany County Sheriff’s Department and the Albany County District Attorney. That is, the feds suspected that the departments as a whole were misusing seized property and cash and accidentally discovered the business office manager’s personal pilfering in the process.”

Ohio Woman Says Cops Broke Her Wrist for Recording During Traffic Stop

“While Mills’ claims and the video she recorded are chilling, she faces an uphill battle in receiving restitution due to the specter of qualified immunity, the legal doctrine that protects government officials from civil liability even when their actions are unconstitutional.”

Public Unions vs. the Public Good

“Derek Chauvin, the policeman who killed George Floyd in Minneapolis in 2020, had a history of citizen complaints and was thought to be “tightly wound,” not a trait ideal for someone patrolling the streets with a deadly weapon. But under the police union’s collective bargaining agreement, the police commissioner lacked the authority to dismiss Chauvin, or even reassign him. The lack of supervisory authority resulted in harms that continue to reverberate in American society.”

The Most Popular Police Reforms Can’t Stop the Next Tyre Nichols From Being Killed. Here’s What Might.

“Units like these don’t just suffer from a lack of transparency and use tactics likely to spawn violence. Their rhetoric attracts “police officers who enjoy being feared,” Balko notes, and it positions these officers as both elite and beyond the normal rules. There are all sorts of horror stories about similar units, such as Detroit’s STRESS unit (“Over a two-year period, the units killed at least 22 people, almost all of them Black”) or Los Angeles’ CRASH unit (“More than 70 officers were implicated in planting guns and drug evidence, selling narcotics themselves and shooting and beating people without provocation”).
Memphis has now disbanded the SCORPION squad.”

“This is far from the first time that police have drastically misrepresented the way things went down before surveillance footage or body camera videos showed that they weren’t telling the truth. To distill this to its essence: Police lie. They lie to protect themselves. They like to give their activities a more noble sheen. They lie to dehumanize those they arrest or aggress against. And yet members of the media often take cops at their word and move on.”

Louisiana Sheriffs’ Offices Have Been Destroying Public Records Without Permission

“Almost half of Louisiana’s sheriffs’ offices are breaking state public records law, according to a new investigation from ProPublica and Verite, a New Orleans–based nonprofit newsroom. Lacking formal document retention policies, as required by state law, Louisiana sheriff’s offices have been accused of destroying public records, including documents showing evidence of police misconduct.”

“When sheriffs’ offices fail to create a public document retention policy—and follow it—the consequences can be devastating. “Comprehensive and accurate records are critical if patterns and causes of harm are going to be identified and corrected, for example when looking at staff deployment or employee discipline,” Elizabeth Cumming, an attorney representing inmates held at the Orleans Justice Center, told ProPublica. “Without a robust practice of record generation, maintenance, review and assessment, our clients will continue to experience preventable violations of their rights.””

The Cops Who Killed Tyre Nichols Could Be Convicted of Murder and Still Get Qualified Immunity

“During the summer of 2020, the federal government seemed poised to offer some sort of reform to qualified immunity, the legal doctrine that shields local and state government actors—not just police—from facing federal civil suits when they violate someone’s constitutional rights, so long as the way they infringe on the Constitution has not been “clearly established” in prior case law. That explains, for example, why two cops who allegedly stole $225,000 while executing a search warrant could not be sued for that act: While we would expect most people to know that was wrong, there was no court precedent that said theft under such circumstances was a constitutional violation.
It’s an exacting standard that can defy parody in the ways in which it prevents victims of government abuse from seeking damages in response to government misconduct. In the case of Tyre Nichols, for example, it’s quite plausible that the officers who killed him could be convicted of murder and still receive qualified immunity—a testament to how disjointed and unforgiving the doctrine can be.”

“Those skeptical of qualified immunity reform typically cite an uneasiness about bankrupting officers. They can take heart that cities indemnify their employees against such claims, meaning the government pays any settlement. It’s certainly an imperfect solution in terms of holding individual bad actors accountable, but it gives victims of state abuse an outlet to achieve some semblance of reparation. Make it so any settlements come out of a police pension fund, and you’ve created a major incentive for departments to excise its consistently problematic actors.”