Fenger Pointing

Becky Fenger | September 23, 2009

Uncivil forfeiture

Becky FengerIf I were to tell you that a discussion of “Civil Forfeiture” could be a fascinating experience, I’ll bet you would yawn at the thought of it. Yet that is exactly what is. And also shocking, unbelievable and maddening.

First, I quote from the U.S. Treasury Department to clarify the terminology. There are two types of forfeiture available to the government: civil forfeiture and criminal forfeiture. A civil forfeiture is intended to confiscate property used or acquired in violation of the law; a criminal forfeiture is imposed on a wrongdoer as part of his punishment following a conviction. The procedures involved in these two types are very different, but your property is just as gone.

Civil forfeiture abuse must be the most underreported scandal today (like the activities of ACORN before the college reporters came along). It’s worth it to be aware of how easily your property can be seized, whether or not you committed a crime. In fact, over 80 percent of citizens who have had their property seized have not been accused or convicted of a crime! So don’t feel all warm and safe just because you are a good person.

The practice of using civil forfeiture is spreading to other countries. Sometimes it is called civil confiscation – a more honest moniker – and governing rules vary. What is frightening is that under Arizona statutes property is very broadly defined as “anything of value, tangible or intangible.” This should stand your hair on end: In some cases, substitute property may be seized if the property alleged to be subject to forfeiture is beyond the physical or jurisdictional reach of a peace officer! Seizure is permissible upon showing of probable cause, but that probable cause doesn’t have to be divulged until a later hearing at which the seizure is challenged!

It’s noteworthy that civil forfeiture is governed by Civil Rules of Procedure, not Criminal Rules of Procedure. Civil forfeitures are in rem, which refers to a legal action directed solely against the property, not against the person who is suspected of being in violation of a law. The property owner is thus severely restricted in his rights. Since the property is the defendant in the action, it results in some pretty strange-sounding legal cases, such as the United States vs. 2003 Cadillac de Ville.

I think most of you have heard of cases where marijuana cigarettes were found by the police in a car belonging to the parent of a teenager. Even though mom was unaware her kid used her car the other night, her auto was confiscated. The fact that it was not she who smoked dope and had no way to get to work now is of little concern to the state.

Houses have been lost in the same way. Renters can leave residue of illegal drugs behind following eviction by the owner, but it is the owner – or the mortgage company – who swallows the loss if the house is seized. (And you thought lowlifes who knocked holes in your walls were bad.)

We are warned not to pay for an airline ticket in cash. The agent may ask you to step aside while a drug-sniffing dog is brought out to your wallet. As most of us know, almost every bill we handle or stash has traces of cocaine on the surface. The government has every right to seize your wad of dough on the spot. In a nightmare scenario, it could technically seize your entire bank account if only one bill is tainted or traceable to a crime.

Point of fact: Some law enforcement jurisdictions get a goodly portion of their operating budgets from assets seized in real or suspected crimes. Since the major percentage of these forfeitures involve the sale or transfer of illegal drugs, officers of the law ask the question: Why should we end the war on drugs when the seized property is so lucrative for us?

In fact, stories are out there of cases where some pretty fancy-looking vehicles and equipment have been deliberately targeted by peace officers. But, Arizona is too backward and idyllic for that to happen here, I guess.

There is an organization that helps victims of civil forfeiture or those who want to learn more about this rampant abuse of our freedoms. It is called FEAR (Forfeiture Endangers American Rights). How apropos. Its Web site is www.fear.org.
Now you know.