A viral video making its rounds on social media has reignited public interest in civil asset forfeiture laws and the place of police to seize personal property. In early September, a police officer outside of the University of California at Berkeley cited a man running a hot dog stand without a permit and proceeded to take all the cash out of the man’s wallet to hold as evidence of the crime the vendor committed. The incident was captured on a smartphone, and the video has circulated social media platforms. Of course, some people took the encounter as an issue of government permits and public safety — after all, a man was selling food with no health inspection or certifications. But the bigger issue whether the police officer was within his rights to take the man’s earnings for the day.
Civil asset forfeiture has long been a hot topic among legislators and courts. Unlike other forms of forfeiture, civil asset forfeiture allows law enforcement officers to take cash or items that were obtained by means of or implicated in the act of an illegal activity, whether the People choose to file charges against the perpetrator or not. In a peculiar turn of phrase, proceedings for civil asset forfeiture charge the items themselves for their involvement in a crime, and a verdict of “guilty” renders them property of the State. Usually, officers will either sell the seized items for money for their budgets or keep the property in-house for their own use.
Though civil forfeiture laws have been on the books for centuries, the US put this practice to work most heavily starting in the prohibition era in the 1920s. When a bootlegging ring was busted, law enforcement officers would take all the money, cars, clothes, and fancy items that were likely purchased with the proceeds from the illegal sale of alcohol. Similarly, when Ronald Reagan launched the War on Drugs in the 1980s, officers attempted to suffocate drug smuggling cartels by chipping away at the assets of their lower- and mid-level dealers, including cars and greenback dollars.
While on its face civil asset forfeiture seems like a good way to deter would-be criminals from participating in unlawful enterprises, strong and vocal opposition denounces the law as a clear violation of US citizens’ unalienable rights to life, liberty, and property. Many of the forfeiture laws are worded such that the burden of proof falls on the citizens to prove that the state illegally took their possessions, but civil rights proponents feel that the state should have to prove that the items were, in fact, in the wrong. That the assets in questions are presumed innocent until proven guilty, some say, violates some very basic human rights to possession.
Of all the issues court watchers would have thought would unite the Supreme Court Justices, few predicted that civil asset forfeiture would do the trick. In Nelson v Colorado, the court decided 7-1 that the state of Colorado acted outside the scope of its power in withholding fees from exonerated defendants until the defendant had proven that he or she was innocent. That the burden of proof of guilt shifted from the state to the defendant for the purposes of the defendant’s reclaiming his or her possessions violated the 14th amendment, wrote Justice Ginsburg.
In even more recent news, Jeff Sessions attempted to breathe new life into civil asset forfeiture after Eric Holder had rolled back the power such laws gave the state, but the House of Representatives voted through an amendment to leave the laws as the Obama administration left them. Of course, public support for such laws ebbs and flows, but the discussion is back on the table for the voting populace to analyze.