IJ Amicus Brief Urges High Court to Reign in "Policing for Profit"
By Robert Frommer
In August, the Institute for Justice filed a friend-of-the-court brief in Alvarez v. Smith to urge the U.S. Supreme Court to help protect against “policing for profit.” IJ asked the Court to hold that the government cannot seize and keep property for months, even years, without ever justifying its actions to a neutral court.
The plaintiffs in Alvarez had their cars and cash seized by the Chicago Police Department as part of a drug investigation, though none were ever charged with any crime. Although most states and the federal government let people challenge the validity of seizures at a prompt preliminary hearing, Illinois does not. For months, the plaintiffs have had no way to get their cars or money back.
What happened to these plaintiffs, and what happens to countless Americans each year, is known as civil forfeiture. Civil forfeiture lets the government seize and keep people’s property without having to prove that they are guilty of any criminal wrongdoing. This is because civil forfeiture uses a “legal fiction” that treats the property as the accused and allows property owners fewer constitutional protections than criminal defendants. Under civil forfeiture, seized property is guilty until proven innocent.
It gets even worse. Currently, more than 40 states—including Illinois—and the federal government allow law enforcement to keep some or all forfeiture proceeds. Agencies have used proceeds to buy margarita machines, take judges on junkets and even pay out bonuses based on how much officers seized.
Civil forfeiture is one of the greatest threats to private property in our nation. The Institute for Justice has been attacking the practice from both a property rights and public choice perspective since we first opened our doors in 1991. In the 1990s, IJ filed amicus briefs in two key civil forfeiture cases before the U.S. Supreme Court. And in recent years, IJ has both filed lawsuits and spoken out about how the pecuniary interest that civil forfeiture gives to law enforcement violates the Constitution.
IJ continues that fight in this brief. Using history, economic theory and real-world examples, IJ shows how the potential for millions of dollars has caused many agencies to enforce the laws with an eye towards the bottom line, rather than on justice or serious crimes. Many law enforcement agencies have strategically decided to enforce certain laws—laws that carry the promise of forfeiture proceeds—to the exclusion of others. In addition, police and prosecutors will often enforce the laws in ways designed to maximize forfeiture income rather than to minimize crime.
IJ’s brief also discusses horrible abuses where innocent people’s property was seized without any suspicion of illegal activity whatsoever. In one case, police took almost $20,000 from a woman who was on her way to buy the supplies she needed to repair her hurricane-damaged home. And in another case, a couple was forced to sign away their rights to $6,000 after police threatened to take away their children.
Agencies use these strong-arm tactics because they know that, due to the time and cost of challenging a seizure, many innocent owners will give up or settle rather than fight. But our nation’s strong tradition of property rights deserves better. IJ calls on the Supreme Court to rule that property owners have a right to a hearing before a neutral judge, not months in the future, but right away. By so ruling, the Court can help better protect property owners and their rights.
Robert Frommer is an Institute staff attorney.