Philadelphia Makes Huge Civil Asset Forfeiture Reforms, Hands Over $3 Million to Its Victims
“Tuesday’s first consent decree sets strict new limits for when Philadelphia law enforcement can engage in forfeiture.”
Philadelphia has had atrocious civil asset forfeiture laws since 2002, which has led to legalized theft of belongings to 23,000 citizens.
That practice has undergone a makeover after the city settled a lawsuit and pay victims $3 million. The case involved a family that lost their home due to “a minor drug crime committed by their son.”
Civil asset forfeiture is “a process by which the government can take and sell your property without ever convicting, or even charging, you with a crime.” The procedures are civil, which means defendants do not receive the same protections given to criminal defendants.
It’s one of the few issues that unite the left and the right. It makes me feel happy that Philadelphia will finally let go of this dumb program.
Philadelphia Family’s Case
Four years ago, federal agents visited Christos and Markela Sourovelis after their son tried to sell $40 worth of drugs to a cop. Then local officials notified the family they wanted to seize their home due to the drug crime.
No one charged the parents. No one convicted the parents. $40 worth of drugs. From NBC10:
NBC10 first met Christos and Markela Sourovelis in 2014 when they nearly lost their home because of their son’s mistake. The couple was sitting in their Northeast Philadelphia house when federal officials came pounding on the front door. At the time, Christos Sourovelis had no idea his son had a drug problem and was wanted by the police.
But because his adult son lived at home, officials seized the property as part of their ongoing investigation.
“It was clear they were going for the houses,” Christos Sourovelis said of law enforcement officials. “You sell the house, you make $300,000 and you move on to the next one.”
After a four year battle, it has ended. From Reason:
The Institute for Justice, a libertarian public interest law firm, announced today that the city had agreed to a settlement in a federal civil rights class-action lawsuit challenging its forfeiture program.
“For too long, Philadelphia treated its citizens like ATMs, ensnaring thousands of people in a system designed to strip people of their property and their rights,” Darpana Sheth, a senior attorney at the institute, said in a press release. “No more. Today’s groundbreaking agreement will end years of abuse and create a fund to compensate innocent owners.”
The Institute for Justice filed the suit in 2014 on behalf of the Sourovelises, a couple whose house was seized without warning after their son was caught selling $40 worth of drugs outside. The same day the Sourovelises dropped their son off for court-ordered rehab treatment, they returned to find police had locked them out of their own home, even though there was no evidence they were aware of the drug activity.
The lawsuit alleged that the city was seizing 300 to 500 homes a year, violating residents’ constitutional rights and creating an illegal profit incentive, since forfeiture revenue directly funds police and district attorney budgets.
Philadelphia’s History With Civil Asset Forfeiture
So many bad things happened in Courtroom 478, which is where the Sourovelis family spent most of their time during the last four years. NBC10 continued:
There, dozens of people would shuffle in and out on a daily basis, many without lawyers or legal representation of any kind. Prosecutors would give these residents forms to fill out and frequently recommended not fighting against forfeiture, Sheth said.
“Without having to prove a crime, all those standards and protections that apply in criminal proceedings do not apply in civil forfeiture,” Sheth said. “The presumption of innocence is turned completely upside down.”
Inside courtroom 478, families cried and signed their homes away, Christos Sourovelis said. The same would have happened to him until he met Sheth and joined a class action lawsuit. Eventually, the Sourovelis family regained ownership of their home and their son went to rehab.
The Wall Street Journal pointed out that the DA’s office ran that courtroom “without the supervision of judge or jury.” Sheth said that the city “seized more than 1,200 homes, more than 3,500 cars plus and more than $50 million in cash.”
Changes to the System
From The Wall Street Journal:
Tuesday’s first consent decree sets strict new limits for when Philadelphia law enforcement can engage in forfeiture. Authorities can no longer use it to seize property in simple drug possession cases. The settlement also seeks to cut down on lunch-money-sized confiscations, given that in some cases the cops took as little as $9. From now on cops can take less than $1,000 only if they also arrest someone or collect other evidence for a criminal case. In no cases can the district attorney bring a forfeiture complaint for less than $250.
—
Tuesday’s second consent decree targets this profit incentive, barring the use of forfeiture money for salaries or other law-enforcement expenses. Almost all proceeds will now go to drug treatment and crime prevention. Philadelphia has also agreed to establish a $3 million fund to compensate the victims of past asset-forfeiture abuses. All residents whose property was seized will get something, and those who were never convicted can regain up to 100% of the value of their lost property.
Pennsylvania
Pennsylvania’s civil asset forfeiture law allows law enforcement to take “property they believe may be connected to a crime-even if they can’t charge or convict its owner.”
Not counting Philadelphia, the other 66 counties have received $102.3 million due to forfeiture.
The state made a few changes in 2017. From Penn Live:
Gov. Tom Wolf signed a measure on Thursday that reforms the process that law enforcement follows to take possession of the property of individuals suspected of a crime.
In a statement about his decision to enact Act 13, Wolf indicated that while he wished it would have expanded the role of a criminal conviction in asset forfeiture, “in a divided government, we must recognize the value of bipartisan progress” and continue to push for greater reform.
The new law addresses several key areas, including:
- Higher burdens of proof imposed on the Commonwealth;
- Protection for third-party owners by placing an additional burden of proof on the Commonwealth;
- Improved transparency in auditing and reporting;
- Specific and additional protection in real property cases by prohibiting the pre-forfeiture seizure of real property without a hearing.
- Additional protections for property owners such as returning property to the forfeiture proceeding if there is undue hardship, and for anyone acquitted of a related crime.
There’s still a lot more to do, but what Philadelphia has done is a major step and hopefully Pennsylvania will join the other fourteen states that have taken steps to outlaw civil asset forfeiture without a criminal conviction.
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Comments
please, some lawyer explain to me hiw “civil asset forfeiture” is considered to be constitutional. i’m not asking anyone to defend it, but what is the reasoning that “civil asset forfeiture” doesn’t violate due process protections?
Good question. Also, would due process apply to both the act of seizure and to the proportionality (effect)?
This process appears to me to be morally indistinguishable from organized crime with the only difference being the actors are morally vacant LEOs acting under the cover of the law. Due process does seem to be MIA.
Blame – William Rehnquist
http://reason.com/blog/2017/11/27/this-awful-scotus-decision-helped-create
And Brown v. Board of Education “helped create” 3-hour bus rides for elementary school children.
Never mind that the whole concept of bussing came from a footnote that suggested short bus rides of no more than about 15 minutes as a possible remedy.
Once an opinion is written, people are capable of using it to justify the strangest things.
yes, the article states that rehnquist opined “An owner’s interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use,”
but what is the REASON that property may be forfeited without due process finding that the posessor of the property actually committed a crime for which forfeiting property is an appropriate penalty?
and what is the REASON that it can be forfeited even if the owner did not know its use?
Okay.
Civil asset forfeiture does not violate due process rights because it due process is actually provided.
What has happened with civil asset forfeiture is that it has been horribly abused in many parts of the country. To begin with, the statutes governing CAF are often poorly written, granting an incredible amount of leeway for justifying the seizure and forfeiture of property; in some cases not even peripherally connected with any criminal activity. Then, government entities engage in wholesale seizures, operating under the assumption that a certain percentage of owners cannot, or will not, contest the forfeiture. It is used as a cash cow for local, state, and, in some cases, federal agencies and governments.
Civil forfeiture is an extremely useful tool in the fight against criminal enterprises having a high cash yield; such as drug dealing. If it can be shown that certain property was acquired through or used in a criminal enterprise, then there is no reason for it not to be seized and forfeited. The laws governing civil asset forfeiture need to be severely limited and oversight of their application needs to be strengthened. But, there is no reason to throw the baby out with the bath water.
You just gave a good explanation on why civil asset forfeiture is a due process violation.
i cannot follow your argument – i think you say forfeiture has due process but the laws are poorly written, so they lack due process.
maybe you can clear that up a little.
To begin with, the statutes governing CAF are often poorly written,
Is ‘poorly writing’ a master class in legal procedure, to evade Constitutional protection for suspects?
After watching FBI maestro Rod Rosenstein write a poorly defined warrant for Robert S Mueller’s use, which has resulted in an obscenely long and unproductive ‘investigation’ of Trump et al, I’m concluding that progressive legal beagles deliberately use ‘poorly defined’ drafting as an unlimited fishing-and-seizures license generator.
Let’s all put on our thinking caps here and try to keep up.
1) Civil asset forfeiture is a legal concept. That is all it is. It is a means of denying a criminal the enjoyment of the fruits of his criminal endeavors by taking away property obtained [purchased] with funds derived from criminal enterprises or which was used in a criminal enterprise to generate funds.
2) It is very possible to prove that a criminal enterprise was being committed and that funds derived from that enterprise were used to purchase property or that property was actually used to facilitate the criminal enterprise, even though not enough evidence exists to charge and convict any particular individual of partaking in the criminal enterprise.
3) No property can be forfeited without a ruling from a judge, unless the owner of that property waives his right to a judicial hearing on the matter. So, due process is part of the process.
4) Due process involves bringing the matter of forfeiture before a court which makes a decision on whether the forfeiture meets statutory requirements. It allows a person to contest the pending action. Due process is different from Constitutionality of the law.
Everyone up to speed here? Good. Let me reiterate my original point.
What has happened with civil asset forfeiture, in many jurisdictions, is that those responsible for the process failed to use the process appropriately. Property was seized without evidence that the owner of the property had any knowledge that it was being used in a criminal enterprise. Some property, usually cash, was seized without any evidence that it was part of a criminal enterprise or the fruits of a criminal act. In some cases, such property was forfeited, by the courts, on mere suspicion. Some owners of seized property either did not attempt to claim the property or did not attempt to fight the forfeiture action. All of this amounted to a “legal” method of obtaining funding, usually for LE activities. As I said, the language of the statutes allowed for seizure on mere suspicion, rather than al least probable cause. Some courts granted forfeiture without even a preponderance of the evidence showing that the property was knowingly used in a crime or was the fruits or instrumentality of the crime. In other words, the CAF process was misused, sometimes criminally.
Now, as I said, CAF is a good tool for shutting down high cash-flow criminal enterprises. But, it has to be used sparingly and the standards for seizing property and forfeiting it have to be stringent. It requires a good deal of oversight, as well.
As an example, let’s try this. Using a gun to murder people is bad. But, guns can, and often are, used to defend one’s life. So, getting rid of guns in an effort to stop murders by firearm also eliminates the availability of guns to protect oneself from attack. The same thing is true of civil asset forfeiture.
“Civil forfeiture is an extremely useful tool in the fight against criminal enterprises having a high cash yield; such as drug dealing. If it can be shown that certain property was acquired through or used in a criminal enterprise, then there is no reason for it not to be seized and forfeited.”
“If it can be shown,” then the forfeiture is not abusive… but you can’t leave out that crucial step and continue to justify the process. That’s the whole point here.
Kudos to the Institute for Justice, without whose bulldog jaws this suit would never have been filed. They operate entirely on your tax-deductible donations, and are the only public-interest law firm I know of that defends your ECONOMIC rights against big government. Please give generously.
That’s a very good step by a very weird city.
As to the question above, this is an example of “You can rationalize anything”.
It starts, perhaps, with the concept in admiralty law that a “thing” can be given a fictional persona. Hence vessels were “she”, and could be arrested, terms still in active use today. They had and still have daily use. If a ship chandler or other such interest provides stuff to a vessel and the vessel skips without paying, the oldest form of BOLO goes out, and any harbormaster in the world will “arrest” the vessel until the matter is settled.
The same basic principle seems to have been the legal justification allowing police or sheriffs to tow a car parked illegally or even too long. Pretty high-handed, but rational in the sense of keeping things moving.
Much of the genius for asset-forfeiture law as it currently burdens Americans comes from the war on drug, from whence quite a few abominations have sprung. Even here, there is some…some…rationale at play, and some obvious need. Illegal conduct can generate huge hordes of cash, and there’s a legitimate interest in interdiction. There’s also the interest in depriving criminals of their property obtained by crime. Hence, homes, cars, boats…everything can be taken, but usually only AFTER due process. Sometimes in some places.
Like any center of power, LEOs and their agencies can be corrupt, and even a very well-intended law that works well in some area can become the nexus for tyranny.
Generally, I think that covers the question in broad strokes.
I’m glad Rags mentioned admiralty, not me. He’s correct – CAF takes place under admiralty jurisdiction. But as the name suggests, it is the law of the sea and does not belong upon the land. Although the federal government can have jurisdiction in admiralty, I think a strong argument can be made that our federal system has disabled any authority under admiralty the states may have had prior to joining the Union (just as Congress has exclusive legislative jurisdiction over interstate commerce, admiralty authority under the state is incompatible with the federal government’s authority in admiralty).
There was a story in the Providence (RI) Journal many years ago about a tour that was given of the new federal courthouse. A journalist was in the group. Someone noticed that behind the bench in one courtroom was a ship’s oar. When they inquired about it, one of the justices went on at length to describe how the oar was displayed in the courtroom to indicate to the parties that the court was sitting in admiralty. So yes, admiralty is alive and well. (And the symbols and devices in a court room do have meaning. In this case the oar gives notice to the parties of the “nature” of the laws, as the 6th Amendment requires that defendants be made aware of the “nature and cause of the accusation.”)
I also remember reading, but cannot verify, that one of the earliest CAF rulings was made in a state court (Ohio?), and in the ruling a federal court ruling was cited as support – a decision concerning a ship! This was at the beginning of the proliferation of states’ use of CAF in the war on drugs.
State courts can and do sit in admiralty cases. They have to apply the Federal admiralty laws, even when those conflict with state law. This is “the reverse Erie doctrine”.
Most states have their own admiralty laws, as well.
An interesting side-note is that a claim under marine insurance can be voided if the voyage is “illegal”, meaning any cargo is contraband.
Civil forfeiture was originally targeted against organized crime. Like every other thing government does they managed to screw it up. There are roads that are avoided because they go through towns where civil forfeiture is used as an income source. This has gone on for a very long time and politicians always promise and never do anything about it
“Civil forfeiture was originally targeted against organized crime. Like every other thing government does they managed to screw it up.”
You write that as if it’s an unintended consequence.
The government writes a law that removes some important constitutional protection, and consciiously advertises that it is targeted at a vile group undeserving of public sypathy. This is how we got RICO (“to fight organized crime,”) gun control (“to prevent political assassinations”), universal ID (“to locate deadbeat dads,” later “to thwart terrorism”), denial of gun rghts for mere misdemeanor offenses (“to disarm wife-beaters”), and extreme body searches at airports (“terrorism again”).
In all these cases, once the law was in place, it was used against the common citizen much more often than the so-called target groups.
All they need it to get it in place, and that right is gone for everybody.
Civil Asset Forfeiture is nothing more or less than theft under color of authority. I’m not an attorney nor am I a Constitutional Scholar. I don’t see this as being constitutional regardless if the target is a well-off businessman with an SUV the police chief would like to gave but can’t afford, or an as-yet-untried ALLEGED (insert type of criminal here).
+1.
If you want to see how Civil Forfeiture is really used, do a search for the murder of Donald Scott. SWATted in the midle of the night for “marijuana growing on the property” (which later no one was ever able to find a single leaf of evidence), the homeowner ended up shot dead, the family dispossessed, and his large estate ended up in the hands of the local totalitarians.
This all sounds like something that might happen in a third world country with a dictator.
exactly
Corruption.
If you want to corrupt law enforcement, give them a financial incentive to game the system.
In my view, there is another way to corrupt law enforcement: quotas. One example is speed traps. If you are at or under the limit going through the speed trap, don’t have an out of state plate. In states where plates carry either a county identifier by name, or the plate characters identify the county, don’t be from across the state. Locals are more apt to fight a revenue-enhancement ticket than out of towners will.
true, but speed traps are small potatoes compared to civil asset forfeiture.
civil asset forfeiture seems a lot like the inquisition, where if the accused heretic is found guilty, the accuser and the inquisitor get a share of the guilty party’s estate.
both systems have built-in conflicts of interest.
You’re almost right. In admiralty, the burden of proving innocence is on the defendant (often property). This is why the property owners have to come in an enter a plea for the property with claims that they weren’t aware how the property was being used – they must demonstrate innocence to the courts. The harks back to the seizure of ships carrying contraband. The contraband and the ship were both seized. But the ship owner could get his ship back if he could convince the court he was not aware his ship was being used to haul contraband. Guilt is the default assumption in admiralty.
Also, if there is a jury (and there almost alway is, not having a jury can give away the game), the judge can reverse a “not guilty” verdict. I recall a case in which this happened years ago. Everyone was astonished – How can that happen? Is it legal? To me, it was just proof the court was sitting in admiralty.