No, not getting your hands on one of those adorable babies in need of love, but cars, cash and other crap that local cops grab and send off to the Feds for adoptive civil forfeiture. Out of the blue, Attorney General Eric Holder announced that the Department of Justice is no longer in the business of doing all the dirty work for local police departments.
Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without warrants or criminal charges.
Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.
Yes, this was huge. Mostly because in rem property forfeiture is one of the most offensive and troubling powers the government gives itself, and having raised billions by merely enabling seizures from people not charged with any crime and then shifting the burden back on them to prove entitlement to their own money or property, there has never been any indication that the Feds weren’t loving it.
Also at WaPo, Radley Balko hits the highs and lows of this new twist:
The program won’t end civil asset forfeiture abuses entirely, but it will stop local police agencies from circumventing state laws aimed at reining them in. Many states, for example, have imposed stricter evidentiary standards police have to meet before they’re allowed to seize assets without a conviction. Other states have tried to eliminate the incentive problems that arise when police are allowed to keep the proceeds from asset forfeiture by requiring those proceeds to be sent to a general fund, or to a schools fund. Local police agencies have been able to get around those laws through the equitable sharing program, which basically federalizes investigations solely for the purpose of letting local police departments and prosecutors keep the bounties they collect in these cases. Holder’s policy change will end that.
This is the good news. No, it’s great news. The reason adoptive forfeiture is the beloved resource is that the Feds made their own process as smooth and easy as possible, with few states willing to be quite so cavalier with their local voters rights. So why should police go through all the trouble of satisfying more stringent state law when they can get the Feds to do the work for them, though it wasn’t exactly heavy lifting.
On the other hand:
There is one important caveat here: The policy includes exceptions for . . .
. . . (1) seizures by state and local authorities working together with federal authorities in a joint task force; (2) seizures by state and local authorities that are the result of joint federal-state investigations or that are coordinated with federal authorities as part of ongoing federal investigations; or (3) seizures pursuant to federal seizure warrants, obtained from federal courts to take custody of assets originally seized under state law.
What exactly this means isn’t clear. Does this limit use of federal forfeiture to state-federal task forces, or can any joint task force still use it?
If it only applies to those investigations in which federal law enforcement personnel are actively involved, that’s less troubling.
But this exception could also apply to the hundreds of multijurisdictional drug task forces around the country. . . If the fact that they are federally funded qualifies them as a “joint task force” for the first exception, that’s a really huge loophole. If the language requires active participation from federal prosecutors or law enforcement, it’s a much smaller loophole.
Yet, this strikes me as the proper time to pull out the chestnut that we need to remember that “the perfect is the enemy of the good.” Sure, there will still be situations where federal forfeiture laws will be used when they shouldn’t, if for no other reason than the fact that these are outrageously abusive, ill-conceived laws in the first place.
But nobody expected Holder to do this, and there was no reason to suggest that reform of this blight on the law and rights of Americans was going away any time soon.
To drive the point home a little harder, it’s worthwhile to bear in mind just how malicious forfeiture law can be. Consider routine small seizures of cash and cars, worth perhaps a few thousand dollars each, seized with some vague assumption that anybody who carries around more than $12.37 must be a drug dealer because all law-abiding folks use debit cards these days.
The person from whom the money or car is seized is now required to prove the “innocence” of their property or cash. The value isn’t enough to justify the cost of hiring counsel, and few people are equipped to fight the feds on seizure. The procedural hurdles alone make the fight essentially impossible.
All in all, Holder’s announcement is one of those rarest of the rare things that happens in the scheme of law: a good day. Maybe not a perfect day, but enjoy it because nobody knows when we will get another good one.