37. What Is Civil Asset Forfeiture?

Some people might not know this, but there is a practice known as “civil asset forfeiture” that actually allows police officers to take money and property from you without ever having to convict you of a crime in a court. How did this practice come to be and what can individuals like us do to change these laws and make sure that law enforcement doesn’t have too much power?

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Here is the transcript of our conversation:

Brittany: Hi Connor.

Connor: Hey, Brittany.

Brittany: So I have a little scenario I wanna play for you. So pretend with me for a minute that you are a kid, you are a young Connor, and your parents just got you a really cool set of crayons, one of those 200 packs.

Connor: Oh Yeah.

Brittany: So imagine you take these crayons to school and another see student sees you using them and gets really jealous and decides that they want those crayons. So they tell the teacher that you stole their crayons and there’s no proof that you stole them, but there’s no proof that you didn’t steal them either. Now obviously a call to your parents would explain the situation and then you’d be able to say that you were innocent, right? But the teacher doesn’t even suggest this. Instead, she tells you to hand over the crayons to the other student, and as soon as she has more time, she’ll call your parents and maybe set up some time and find out whether or not you actually stole the crayons or not. How would that make you feel?

Connor: A massive injustice had just happened. Those are my crayons. Give them back

Brittany: Exact. And you used the exact word, I was hoping you’d use injustice, right? Because you didn’t do anything wrong, and yet you’ve had your stuff taken from you. Now, this actually happens in real life with police officers and somebody they suspect of wrongdoing with the practice that’s called civil asset forfeiture. So that’s kind of a big, big word or three words, and we’ll link the definition down at the bottom of the show notes. But civil asset forfeiture. So asset is something that is yours and forfeiture is something that’s taken. So just think of it as somebody taking your stuff, but what do you know about this practice? Connor, anything about this?

Connor: So with my day job at Libertas Institute, we’ve talked before about how I run a think tank and we change laws. And this is one of the laws that we’ve worked on changing over the years because if someone has done something wrong, let’s say I steal a car obviously as a criminal, I shouldn’t be allowed to keep that car, right? If I truly stole it, I shouldn’t benefit from my theft from my illegal activity. So it totally makes sense for the government to get that car back and return it to its rightful owner. But let’s say that I go to my mom’s house and I move in with my mom and her basement and let’s say I’m kind of a bad dude and I start making some drugs out of the basement. That’s a no-no. And that’s clearly wrong. But what would be even more wrong is for the government to come and say, Hey lady your son has been taking drugs in your home. So in addition to arresting him, we’re taking your home.

Brittany: That sounds outrageous.

Connor: It sounds totally outrageous. And yet that is a true story and stuff like that has happened before. I’ll share another story with you that happened in our state. There was this family that opened a restaurant. They were from Africa, a country in Africa. And in Africa there’s a leaf called shot, I believe it’s spelled K H A T. And this leaf has a very slight narcotic effect Yeah, like a drug, almost smoking nicotine, a very kind of slight drug, but it’s very, very slight, very minimal. It’s not like a heavy drug, but it does have that little effect. So the federal government has banned it from being used in the United States. However, in the country where this family is from, it’s like chewing gum. I mean just extremely common to the point where everyone does it.

Brittany: You Didn’t even think about it.

Connor: And so someone mailed a package of these leaves to this restaurant, to someone who worked there. And so the federal government intercepted the package probably with a drug-sniffing dog. And so they’re like, Oh, this has a drug in it, so we’re gonna send it to its destination to the restaurant, but we’re gonna be there when it arrives so that when they take it possession of this illegal leaf, we can swoop it. And so multiple agencies, different law enforcement agencies of police swooped in on this restaurant. When the lady took the package, they took all the money out of the cash register for the restaurant. They took laptops, they took cars from the owner, the owners, and siblings, and they went home. Now, a lot of Africans don’t really trust banks. That’s kind of a common thing to distrust kind of the making system. And so they had just bundles of cash, that was their savings rather than putting it in a bank.

So they had cash in their home, they took all the police, took all the cash. When you go to a restaurant sometimes or shopping, there will be a little jar next to the cash register trying to raise money for little Johnny’s charity. Charity like Little Johnny Has Cancer, Please help out. They had one of those charity little jars next to the cash register with a bunch of loose change in it. The police took that as well. They took over a hundred thousand dollars and total money and everything from these guys and the restaurant shut down. I mean, how do you operate a restaurant without any money to buy supplies and do things? And they never arrested anyone. They never charged them with any crime, and they killed this business. And the guy moved back to Africa, his American dream was totally stolen from him, and that was this civil asset forfeiture where the government can just say, Oh, you did something we think is wrong, so we’re gonna take a bunch of your stuff for it. And that seems totally wrong to me.

Brittany: That Seems totally wrong. And I think what’s totally crazy about this, is the way that the laws are written is that they kind of accuse your staff of being guilty. Guilty. And that sounds so silly, but they say, let’s say they took the money or the car, they say your car is guilty of a crime, so that’s why you don’t get it back. We haven’t like convicted you of a crime or charged you of a crime, but we’re gonna convict your charge property with a crime, which is just like, Wait, It doesn’t make any sense.

Connor: Let me give you an even more specific example about that. So when let’s say I live in Texas and let’s say I commit fraud, I break the law and I commit fraud, I’m going to be charged as a criminal. And so the case will be called the State of Texas versus Conor Boy Act, right? I’m the defendant I’m the person that they’re going after. But exactly what you’re just describing, Brittney, in civil asset forfeiture, they’re not even having to arrest anyone or charge them with a crime. The property is kind of the defendant. And so the court case won’t be the state of Texas versus Conor. It will literally say things like the state of Texas versus a 2008 Honda Civic

Brittany: <laugh>

Connor: And I kid you not there. In these cases, this is how this works. The state of Texas or the state of Virginia or whatever, the state of Montana versus a $50 bill, literally that is the state of Nevada versus a Ford Explorer or versus the laptop. And they say, Oh, well this property was used in criminal conduct crime and so we need to be able to take it. And this is abuse left and right. I mean law enforcement will, they’ll take care and then they’ll keep them They’ll take the money and then keep it in one case, I remember reading a story where they had a drink machine, that makes fruity drinks like daiquiris stuff like that, I guess. And so they took it through forfeiture from the person who it was, and then they kept it at the police station to make drinks for themselves.

Brittany: You’re, but you’re bringing up a problem is we’re in, like you said, incentivizing bad behavior. So it’s almost like the police officers will want to take stuff from you because it looks like they’re gonna get to use it if they do.

Connor: So break that down a little more. Brittany, what do you mean by incentivizing? Help us understand what you mean. So

Brittany: It’s almost as if they kind of get rewarded for doing a certain action. So incentivize would be like, if I wanna work, cuz I want money, so I’ll work to get the money. So a police officer, if they know that if they pull you over and they say that they suspected you doing something bad, that they could take your car, but then that they could also use your car that also kind of make them want to take the car. So it’s like it’s almost empowering them or to want to take it from you.

Connor: That’s right, and so in our state, one of the things that we’ve done is we’ve said, Okay, well the money that you guys get from forfeiture, you don’t get to directly keep, We want to remove that incentive. Exactly what you’re talking about, Brittney. So instead the money has to be used kind of in other ways so that officers aren’t like, Hey, if I take a car, then I get to use that car. We don’t want any of that. Gotta remove that incentive. Now the problem with this is that even when states like ours start to restrict civil asset forfeiture, the federal government has its own separate laws, federal laws dealing with civil asset forfeiture as well. So imagine that I’m a police officer and I’m in my state of Utah. I’m like, Ugh, if I seize this a hundred thousand dollars, if I take it from this guy and I do a civil asset forfeiture under state law, then that pesky Libertas Institute and that Connor Boyack has been restricting my ability to keep the money.

And so we won’t, my agency, my buddies, we won’t be able to use the money ourselves. However, if I get the federal government involved in this case, this is a hundred thousand dollars, and if we do the forfeiture in federal court instead of the state court, then we can avoid those state protections that Libertas Institute in Utah has put in place. And many groups around the country have been working on this in other states as well. And instead, we can go to federal court where it’s easier to do forfeiture. The laws are written in a way where it’s actually easier to take people’s property. And here’s the kicker, going back to what you said, Brittany, about incentives under federal law, when we’re talking about civil asset forfeiture, 80% of the money, the leftover money goes directly to the agency and there’s nothing a state can do about it. They force states to do this. So even when we say we’re gonna restrict it and create all these protections, the federal government is still there saying, Oh, well come to us and we’ll help you, and then we’re gonna give 80% of the money directly to the agency. And so that incentive still exists. It’s a big concern. What

Brittany: Was that called? Something like an equitable sharing program? I can’t remember.

Connor: That’s exactly right.

Brittany: I used to write about, I thought of like, Did I have that right? And it’s just so scary because again, even if you reform things on the state level, which there’s a great liberty law what is it called? Legal Firm Institute for Justice. They work with a lot of these cases as well, But with a lot of these people never get their stuff back. Some do, but it’s surprising to be how many of them don’t.

Connor: On that exact point, I’ll share another, maybe not so much a direct story, although I have many to share, I’ll kind of summarize several stories exactly what you’re saying. Some people get their properties, some don’t. The most tragic cases I’ve seen is you’ll have a guy who has, let’s say $50,000 taken from his bank account and he’ll have to hire an attorney, of course, because you wanna try and get your property back, and the government will kind of drag out the process. They’ll take many months to do it, and you’re like, I need my money back for my business. Or going on a worldwide cruise or whatever you’re doing with the money. So you’re kind of sweating because the government has your money and you can’t use it. So then the government will come to you and they’ll say, We’ll, tell you what, we’ll cut a deal if you let us keep half the money, this is called a settlement settling.

You’re coming to an agreement, a settlement. They’ll say, Look, if you settle and let us keep half the money, we will let you keep the other half and we’ll drop the forfeiture case. So then imagine you’re that guy’s attorney and you have to look out for his best interest. So you turn to your client, the guy who has his $50,000 taken, and you say, Well look, we can fight it. We can continue to try and get all the money, but we’ll probably lose cuz the law typically benefits the government. And you’re gonna have to pay me a bunch more money as your very expensive attorney to try and get it back so you can gamble and try and get it all and pay me a bunch of money and probably lose and then get nothing. Or you can take the deal, take the settlement, walk away with half your money, pay me the attorney fees that you owe, and then move on with your life. And so time and time and time again, these people whose own government is taking their property, are innocent people, keep in mind they’ve never been charged with a crime and maybe they did something, but they’re, they haven been charged. Yeah, they’re presumed innocent. So they’ve never been convicted, they’ve never gone to court, they’ve never been convicted of a crime. And so these presumably innocent people are having their own government literally steal from them and say, Oh, well we’ll leave you alone if you let us. We go have these. It’s crazy.

Brittany: Well you brought up the word incentive. It’s almost like they’re incentivizing other people not to even want to fight for it, right? Because they’re thinking, Oh, well I’m not gonna get it anyway. So the whole thing is kind of just structured to not work in your favor. It’s not work in our favor. If something like that were to happen to us.

Connor: Let me share a final problem, Brittany, that you reminded me about. In fact, so that’s a problem when you have a lot of money, but when you have a lot of money you can afford, you’re gonna hire an attorney, right? Cuz you wanna fight and get that money back. However, most forfeitures, most of these cases, these stories we’re talking about don’t involve a lot of money. In our state where we’ve done some data, for example, the average amount of money involved in these cases is around $1,000. Now the kids are still like, Oh my gosh, a thousand dollars, it’s so much money. But when you’re an adult and you’re paying thousands a year on your house and gas and food and everything like that, a thousand dollars in the grand scheme of things for an adult isn’t that much money. But here’s the kicker. If the government takes a thousand dollars from you and you want it back, you’re innocent.

What the government did is totally wrong. Are you gonna hire an attorney who will probably cost you at least $5,000 to try and fight and get your thousand dollars back? Clearly not Like that would be the stupidest thing ever to hire an attorney to win back such little money cuz you’d end up losing way more money to the attorney. And so what happens again and again and again is these people have money taken from them 500 bucks here, 1,347 over there, and everything like that. It averages out to nearly a thousand dollars. And these people don’t fight cuz they’re like, I don’t know the law. I can’t defend myself in court and I can’t afford an attorney. So I guess I just have to let the government do this insane.

Brittany:

It’s nuts. And I think that you brought up a good point though, is this has been one of the issues over the last maybe three or four years that we’ve actually seen a lot of reform on. So that’s really hopeful because I know with a lot of this stuff, there doesn’t seem to be an answer or a way out. But with the civil assets for forfeiture specifically, a lot of states are starting to fight back a lot of, like I said, these law firms are trying to be able to represent people and say, No, this is wrong. And even on the federal level, there have been calls for reform. So I’m hopeful that maybe this won’t be around forever. I would like to hope that it isn’t going to be

Connor: Well, let’s go ahead, Brittany, and on the show notes page for today, share a couple of stories. I know you’ve written some articles in the past so that our listeners who want to get a little more upset with their own government, can have some help to do so. This is a very concerning law. You can look up what’s happening in your state. The Institute for Justice, which we’ll link to has. Yeah, they have some great information state by state on what the laws look like. So do some research, help one another, understand this a little bit better. This is a very concerning law that a lot of us have been fighting against for a long time. So very important topic. Glad we could talk about it. Brittany, I’ll see you next time.

Brittany: Talk to you next time

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