Challenge to “Policing for Profit” in Texas Heads to Court of Appeals
The case began when a 2004 Chevrolet Silverado was seized from Zaher El-Ali—the truck’s innocent owner—using Texas civil forfeiture law. Texas has some of the worst civil forfeiture laws and practices in the nation, but Ali’s appeal looks to change that. At stake is the future of one of Texas law enforcement’s favorite tools to generate revenue from property owners who are—typically—never even charged with a crime.
“Police and prosecutors are supposed to impartially administer justice, but the way law enforcement police for profit and employ civil forfeiture raises serious constitutional concerns,” said Scott Bullock, senior attorney with the Institute for Justice and lead attorney on the case. “It violates basic constitutional protections when police seize property, prosecutors never even charge the owner with a crime, and then both groups financially benefit from that seizure. Yet that is exactly what is happening every day across Texas.”
Civil forfeiture permits law enforcement to charge property with a crime. Unlike criminal forfeiture, where property is taken away only after its owner has been found guilty in a court of law, with civil forfeiture, owners need not be convicted or even accused of any crime to lose their homes, land, trucks, boats or cash.
Ali himself is certainly innocent of any crime—no one disputes that. In 2004, Ali sold a 2004 Chevrolet Silverado truck to a man who paid him $500 down and agreed to pay the rest on credit. As with all cars bought on credit, Ali held the title to the car and had the vehicle registered in his name until the driver paid in full. In July 2009, the buyer was arrested for DWI. Because this was his third DWI arrest, he was imprisoned, pled guilty and was sentenced to six years in prison. After the man’s arrest, the Silverado was seized for civil forfeiture even though Ali owns the vehicle. It has been sitting in the Harris County impound lot ever since.
Making matters worse, law enforcement agencies in Texas and many other states get to keep the cash and other assets that they seize giving them a direct financial incentive to abuse this power and the rights of property owners. In Texas, forfeiture funds can even go to pay police salaries. This establishes a perverse incentive structure under which the more property police seize, the nicer their facilities, equipment and automobiles—and the bigger their personal paychecks.
That incentive structure will be under the microscope on appeal. Ali joined with the Institute for Justice, a national public interest law firm based in Arlington, Va., in bringing counterclaims in the case of State of Texas v. One 2004 Chevrolet Silverado to challenge Texas’ civil forfeiture statute as a violation of his constitutional rights. Ali challenges the profit incentive that underlies civil forfeiture in the state. He also challenges the provision of the law that places the burden on owners to prove their innocence, rather than on the state to prove their guilt.
A recent Institute for Justice report, Forfeiting Justice, shows just how big the problem of policing for profit really is in the Lone Star State and the perverse incentives for law enforcement agencies to abuse this power:
- From 2001 to 2007, Texas agencies took in at least $280 million in forfeiture funds, and annual proceeds nearly tripled over those seven years.
- Excluding cash, agencies seized and kept more than 35,000 properties, including cars, houses and computers, from 2001 to 2007.
- Texas agencies earned more than $16 million in interest on seized and forfeited property from 2001 to 2007.
- For the average Texas law enforcement agency, forfeiture funds represent 14 percent of its 2007 budget. For the 10 agencies that take in the most forfeiture funds, forfeiture proceeds equal more than one third (about 37 percent) of agency budgets.
- Texas agencies spent nearly $315 million in forfeiture money from 2001 to 2007. About 74 percent was spent on equipment, while nearly one quarter—23.6 percent—was spent on salaries and overtime pay.
If successful, Ali’s appeal will help rebalance Texas law enforcement priorities, take the profit out of civil forfeiture, and protect innocent property owners caught up in an upside-down legal process that violates fundamental constitutional standards of due process. The Institute for Justice suit seeks a court ruling that would prohibit law enforcement officials from paying themselves with money and property they seize from innocent Texans, and would appropriately shift the burden of proof back to the government.