March 31, 2016

Over the past few years, readers of Liberty & Law have read story after story about how civil forfeiture not only allows law enforcement to seize property without convicting you of a crime but also gives agencies a direct financial incentive to take as much as possible. And civil forfeiture is a booming industry for police in Marion County, Indiana—even though this type of “policing for profit” is unconstitutional under the state Constitution. Under the Indiana Constitution “all forfeitures which may accrue” must go to schools—not law enforcement.

Even though the law could not be clearer, police and prosecutors in Marion County—which includes Indianapolis—have not sent one penny of civil forfeiture money to the schools since before many current students were born. Instead, 100 percent of the money is being pocketed as “law enforcement costs” by the Marion County Prosecutor’s Office, the Indianapolis Metropolitan Police Department and other law enforcement agencies. The profit incentive created by civil forfeiture is so strong that the officials charged with upholding Indiana law are actually the ones breaking it.

It is no secret what is happening, either. Indianapolis police and prosecutors have actually written memos detailing how the agencies split up the property they forfeit. Without fail, law enforcement gets everything and the schools get nothing.

All too often, this leads to cases where prosecutors and police claim outlandish sums as “law enforcement costs.” Indy prosecutors, for instance, have claimed $12,000, $13,500, and even $17,000 as the cost of litigating forfeiture cases where the other side did not even show up in court.

Unsurprisingly, this pulls innocent property owners into the upside-down world of civil forfeiture. Jeana and Jack Horner, for example, lent two of their vehicles to their son to help him get back on his feet while he was participating in a work-release program. While driving one of the cars, their son was pulled over and arrested for marijuana possession. Jeana and Jack, who owned both cars, were never charged with any crime.

But the police went after the car anyway. They filed a civil forfeiture action against the car the son had been driving and, for good measure, they seized the Horners’ second car, too. Jeana and Jack had nothing to do with their son’s misbehavior, but Indianapolis prosecutors did not care. It took nearly a year after the vehicles were seized—and after Jack, seriously ill, had bought another car—for a court to order the government to return the property.

Now, Jeana and Jack have teamed up with IJ and other Hoosier families to take on one of the root problems with civil forfeiture in Indiana: law enforcement’s unconstitutional profit motive.

The Horners cannot get back the nine months they spent fighting to recover their cars, but they can fight to undo Indiana’s forfeiture system. That is why they are challenging the profit incentive that has been fueling Indianapolis’ forfeiture program for far too long. Jeana and Jack’s experience spotlights the injustice of a system where actual law enforcement takes a backseat to law enforcement budgets. The solution is as simple as it is urgent: Police and prosecutors—like everyone else—need to follow the law.

Sam Gedge is an IJ attorney.

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