Institute for Justice Urges U.S. Supreme Court To Curb “Policing for Profit” In Civil Forfeiture

John Kramer
John Kramer · October 13, 2009

Arlington, Va.—Tomorrow, the U.S. Supreme Court will hear arguments in Alvarez v. Smith, the most important civil forfeiture case to reach the Court in years. The Institute for Justice calls on the justices to rule that owners whose property has been seized must be given a prompt preliminary hearing where the government must show it had the right to take their property. In its amicus brief (, IJ warns the Court that the self-interest surrounding modern civil forfeiture law has made it one of the most serious threats to property rights in our nation today.

“We must stop law enforcement agencies from using civil forfeiture laws as a means of policing for profit, but the financial incentives facing law enforcement mean that too often police and prosecutors enforce the law with an eye towards the bottom line rather than to making sure justice is done,” said Scott Bullock, an Institute for Justice senior attorney who co-authored the brief. “Both the federal government and more than 40 states let law enforcement agencies keep some or all of what they seize. The possibility of millions of dollars in forfeiture proceeds has both distorted law-enforcement priorities and led to horrible abuses. The Court should protect property owners by requiring that the government justify seizures as soon as is practical, rather than months or years in the future.”

Civil forfeiture laws let the government seize and keep property on the flimsiest of pretenses. Under civil forfeiture, the government does not have to show that the property’s owner is guilty of criminal misconduct. Indeed, property can be forfeited even when criminal charges have never been filed against an owner. This is because civil forfeiture laws use a “legal fiction” that treats the property, not the owner, as the accused. This fiction gives the government all the advantages in forfeiture proceedings, while owners attempting to regain their property have to bear all the burdens. Under civil forfeiture, seized property is guilty until proven innocent.

As unjust as these procedures are, they are made infinitely worse by the fact that modern law enforcement has a monetary interest in the outcome of the forfeiture proceedings. IJ’s brief traces the transformation in modern forfeiture law, showing how a change that let law enforcement agencies keep a share of forfeiture proceeds has led them to seize as much money and property as possible. The desire for more revenue has caused police and prosecutors to over-enforce laws that carry the promise of forfeiture proceeds. Furthermore, police and prosecutors have often enforced those laws in ways designed to maximize forfeiture income rather than minimize crime. The brief also points to numerous instances where law-enforcement agencies—in what can literally be characterized as highway robbery—have seized property from innocent people without any suspicion of illegal activity whatsoever.

As IJ’s amicus brief explains, “[p]art of the reason for these strong-arm tactics is that, because of the cost, difficulty and amount of time that it takes to successfully challenge the seizure of one’s property, many innocent property owners fail to challenge the seizure or instead settle with law enforcement.” In Illinois, for instance, people whose money or property is seized may not see a judge for six months or more. During that time, they are without the car they need to drive to work or the money they need to pay their utility bills. Rather than continuing to fight, many people just give up. The end result is that the government gets to keep property to which it has no right.

The U.S. Supreme Court has said that “individual liberty finds tangible expression in property rights.” But for those rights to be safe, the courts must act as an effective check against executive action. Last year, the 7th U.S. Circuit Court of Appeals joined another court in holding that property owners should have the right to a preliminary hearing, as soon as is practical following a seizure, at which the government must justify its continued detention of the property. The Institute for Justice calls on the Supreme Court to affirm this ruling and help protect property owners nationwide.

“It is an affront to our tradition of private property that the vast majority of seizures made by self-interested government officials never receive any judicial scrutiny,” says Robert Frommer, an IJ staff attorney who co-authored the brief. “The Court can reduce the risk that innocent people’s property is taken to line law enforcement’s coffers by holding that the government must justify its seizures at a prompt preliminary hearing before a disinterested objective decision maker.”

The Institute for Justice defends the right to private property against government encroachment of all kinds. IJ has fought to protect property rights from the threat of eminent domain abuse, including arguing the landmark case of Kelo v. City of New London before the U.S. Supreme Court in 2005. IJ has also worked diligently to fight civil forfeiture abuses and shed light on the danger of giving law-enforcement agencies a financial stake in the money and property that they seize. IJ has filed amicus briefs with the U.S. Supreme Court in two of the most important civil-forfeiture cases in recent years, United States v. James Daniel Good Real Property and Bennis v. Michigan.