Lawsuits Challenge Police Departments’ Civil Forfeiture Practices Around the Country

The forfeiture process allows law enforcement agencies to take possession of and claim title to property associated with criminal activity. Critics claim that some police departments rely on forfeiture as a source of revenue for their own operations, often referred to as “policing for profit.” Civil forfeiture proceedings are the subject of most of the current opposition. Unlike a criminal forfeiture case, a civil forfeiture case in many jurisdictions does not require a criminal conviction. This means that the state can take title to property that is in no way connected to criminal activity. Lawsuits currently pending in courts around the country are challenging various aspects of this system.

Texas civil forfeiture law allows for the forfeiture of “contraband,” broadly defined to include property used or “intended to be used” in the commission of various felony and misdemeanor offenses, the “proceeds” from certain offenses, and property obtained with those proceeds. Tex. Code Crim. P. Art. 59.01(2). Texas courts have held that the state does not have to prove that the property owner intended to commit an offense, or even that they knew anything about an offense involving their property. El-Ali v. Texas, 388 S.W.3d 890 (Tex. App.—Houston [14th Dist.] 2012); pet. denied 428 S.W.3d 824 (Tex. 2014).

Police reportedly justify seizing large amounts of cash that they find by claiming that the mere possession of cash is indicative of drug trafficking. A story out of Tennessee from early 2016 suggested how a “profit motive” might drive police behavior in ways that threaten people’s civil rights. A Nashville news station has reported on drug interdiction operations along Interstate 40 that appear to target vehicles with out-of-state license plates. A husband and wife claimed that they were stopped on that highway as they were returning home to California, after attending a funeral in Virginia. They allege that police tried to pressure them to consent to a search of their vehicle. The husband, who is reportedly a federal police officer in San Diego, claimed that a drug dog was then cued to alert on the vehicle, and the entire purpose of the search was to look for cash.

Lawsuits at the state and federal levels are challenging civil forfeiture laws and practices on a wide range of grounds, including:

– An Indiana lawsuit claiming that the use of forfeited proceeds by police departments for their own benefit violates a provision of the state constitution earmarking that money for education:  Horner, et al. v. Curry, et al., No. 49D06-1602-PL-0004804, complaint (Ind. Super. Ct., Marion Co., Feb. 10, 2016);

– A Missouri lawsuit alleging that a wide range of city enforcement activities, including some involving forfeiture, violate the Due Process Clause of the Fourteenth Amendment:  Whitner, et al. v. City of Pagedale, No. 4:15-cv-01655, complaint (E.D. Mo., Nov. 4, 2015);

– A New Mexico lawsuit claiming that a city government has ignored a new state law effectively ending civil forfeiture:  Torraco, et al. v. City of Albuquerque, et al., No. D-202-CV-201508736, complaint (N.M. Dist. Ct., Bernalillo Co., Nov. 18, 2015); and

– An Arizona lawsuit raising a civil rights claim under 42 U.S.C. § 1983, “based on improper financial motivation of law enforcement defendants”:  Cox v. Voyles, et al., No. 2:15-cv-01386, complaint at 21 (D. Ariz., Jul. 22, 2015).

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Michael J. Brown, a board-certified criminal defense attorney in West Texas, has fought for the rights of people facing charges of alleged offenses in state and federal courts for more than 20 years. Contact us online or at (432) 687-5157 today to schedule a confidential consultation with an experienced and skilled legal advocate.

More Blog Posts:

State Laws, Federal Policy Changes Offer Some Good News on Asset Forfeiture, Texas Criminal Lawyer Blog, May 23, 2015

Federal Judge Grants Default Judgment in Forfeiture Action for Money that Allegedly Smelled Like Marijuana, Texas Criminal Lawyer Blog, September 23, 2014

New State (Not Texas) Requires a Criminal Conviction in Civil Forfeiture Cases, Texas Criminal Lawyer Blog, August 8, 2014

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