Sidebar: Forfeiture Creates Pressure to Wheel and Deal or Walk Away
Forfeiture is so difficult to fight that property owners face enormous pressure to make a deal with the government or give up—even if they have done nothing wrong. And the government frequently uses hefty fees, stall tactics and other underhanded methods to turn up the heat. Melisa Ingram understands this only too well. Like Stephanie Wilson, mentioned in the introduction, Melisa had her car seized—twice—by Detroit police as part of Wayne County’s highly profitable vehicle forfeiture program.
In late 2018, Melisa loaned her car to her then-boyfriend so he could look for a job. Instead, he allegedly used it to pick up a prostitute, a claim he denied. Detroit police stopped Melisa’s boyfriend and seized her car without making any arrests. Officials told Melisa it would be at least four months before she could take her case before a judge. The only way to get her car back more quickly, they said, would be to pay a $900 “redemption fee” plus towing and storage fees. Dependent on her car to get to work and school, Melisa paid $1,355 in all. A few months later, after making it clear to her boyfriend that he was not to use her car for any illegal purpose, Melisa again loaned him her car, this time to attend a barbecue. As he was leaving the barbecue—alone—he was again stopped by police, who again seized the car without arresting him. This time, the redemption fee doubled to $1,800, a sum Melisa simply could not pay. No amount of government pressure could coax payment from her empty wallet. 1
Similar pressure to cough up cash or lose property forever featured in Albuquerque’s forfeiture program, which saw prosecutors squeeze Arlene Harjo and thousands of others to pay settlements for their vehicles’ return. Those same prosecutors received a cut of the program’s proceeds—that is, until a federal court found the program created an unconstitutional incentive to police for profit and struck it down. 2
Philadelphia prosecutors engineered a similarly self-interested forfeiture scheme that placed undue pressure on owners to put up cash to secure release of their cars and other property—or to not fight at all. IJ joined with several property owners to file a class action lawsuit against Philadelphia, winning damages and an agreement with the city to dismantle its forfeiture machine, which saw prosecutors—not judges—running proceedings. 3
Pressure to settle or give up is also common at the federal level. After U.S. Customs and Border Protection seized Gerardo Serrano’s truck, he was presented with several options: abandon the truck, ask for an internal review of the seizure, request a judicial hearing or make a settlement offer. 4 Gerardo—who was never charged with any crime—asked to see a judge, an option requiring him to post a bond of 10% of the truck’s value, around $3,800. The government cashed his check, but Gerardo saw no judge. Without a statutory mandate to hold a prompt post-seizure hearing, the government dragged out the forfeiture process, a tactic that leads many owners to give up. 5 It took two years and a lawsuit for Gerardo to get his truck back.
The federal government sometimes even uses people’s constitutional rights as a bargaining chip. After the U.S. Attorney’s Office declined to pursue forfeiture of over $40,000 CBP officials had seized from Anthonia Nwaorie, CBP was legally required to “promptly release” the funds. Instead, CBP threatened to pursue the forfeiture itself unless the grandmother and registered nurse signed a “Hold Harmless Release Agreement,” promising never to sue the agency for violating her due process rights. This was no isolated incident. Indeed, it is CBP policy nationwide, and one the U.S. Department of Homeland Security’s own Office of Inspector General criticized for flouting requirements in federal law that, in cases like Anthonia’s, property be promptly returned to owners. 6 Anthonia, who was never charged with any crime, refused to sign the unconstitutional waiver and instead filed a class action lawsuit to end the practice and get her money back, no strings attached. CBP returned Anthonia’s cash, but the suit continues. 7
Civil forfeiture laws stack the deck against property owners. But just as bad as the laws are the ways police and prosecutors can manipulate the process. Pressure to wheel and deal or walk away undermines the constitutional rights of those unfortunate enough to find themselves ensnared in civil forfeiture.