Are police abusing civil forfeiture laws?

By Rudy Yuly

America’s police departments, as you may have heard, are enduring some rather intense scrutiny at the moment. The #blacklivesmatter movement, Colin Kaepernick’s pre-game protests, and a host of other activists, commentators, and citizens have brought attention to disturbing cases of police using deadly force in situations that don’t seem to require it.

In contrast, you may not have heard as much about the controversial practice of civil forfeiture, like the elderly Pennsylvania couple whose house was seized by police after their son was caught selling pot on the front porch of their home of 50 years. Or the Detroit partiers whose cars were taken because the museum that hosted the celebration hadn’t gotten the proper permits for the gathering.

Forfeiture as enforcement tactic

If you’re fuzzy on the details, civil forfeiture is a process by which police can seize any real property that might be associated with a crime—cars, houses, boats, money, and the like. The concept is in place both as a deterrent and as a way to convert assets from criminal use to other, presumably more positive public concerns. But there are two elements of civil forfeiture that can create potential temptations for abuse:

No crime has to be proven. It only has to be alleged or suspected. This means that police don’t actually need to bring charges to seize property.

If the property isn’t won back—a time-consuming and expensive process that essentially involves convincing a judge you’re innocent of a crime you haven’t been charged with (you can ask questions and get more information here)—the seized property goes to the police department, to spend on things they need (or think they need).

And in June 2016, a ruling by the St. Louis-based U.S. Eighth Circuit Court of Appeals added a new wrinkle: the court ruled that police can swipe the magnetic strip of your credit, debit, or prepaid card. And if it’s a prepaid card, because of civil forfeiture practices already in place, they can take the cash right then and there.

Gift card scam spurs new law

Eric-Arnaud Benjamin Briere De L’Isle was driving down the highway in Nebraska when he was pulled over by a county sheriff’s deputy for suspicion of following another vehicle too closely. After pulling De L’Isle over, the office smelled (or claimed to smell) marijuana inside the car. A search involving a drug-sniffing dog ensued, after which no drugs were found.

The police did, however, find quite a stack of gift, debit, and credit cards. They confiscated the cards and then swiped them through a reader, ostensibly to determine if they were genuine. Turns out not all of them were—and De L’Isle was convicted of one count of possessing a “counterfeit device.”

On appeal, he argued that swiping the cards was a violation of his Fourth Amendment right against warrantless physical search. The court, however, didn’t agree. They ruled that since the information on the magnetic strip should be essentially identical to what’s printed on the card, swiping the card to read that data isn’t an illegal search—in fact, it isn’t a search at all.

Oklahomans push back

After that ruling was issued, Oklahoma police agencies—clearly looking to enforce the new law—purchased a large amount of car-mounted card readers and trained officers in their use. The police claimed the readers would be used primarily to stop drug traffickers, who routinely use prepaid cards to access their illegal profits.

But while the readers can only read the data on legit credit and debit cards, prepaid cards are, as mentioned earlier, a whole other story. The devices can immediately transfer the prepaid funds from the holder to the police.

That last part turned out not to be so popular with the local citizenry. When the reader purchases and accompanying police tactics were publicized in Oklahoma, the backlash was significant, and use of the readers has been temporarily suspended, in part because of the efforts of Kyle Loveless, a Republican state senator from Oklahoma City.

According to Oklahoma City’s News 9, Loveless said, “We’ve seen innocent people’s stuff being taken. We’ve seen where the money goes and how it’s been misspent.” Loveless is planning to introduce legislation requiring an actual conviction to seize Oklahomans’ assets in the future.

“If I had to err on the side of one side versus the other, I would err on the side of the Constitution,” Loveless told News 9. “And I think that’s what we need to do.”

Given the current public relations issues faced by police department’s nationwide, that seems like good advice.

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