It’s been interesting to watch as outlets outside legal and criminal justice circles pick up on the outrage that is civil asset forfeiture. Though it’s been going on for more than 30 years, most people just aren’t aware of it. And they’re pretty astonished when they learn about it.
The latest investigation comes from Gothamist, looking at how NYPD uses the policy.
In the middle of the night in March of 2012, NYPD officers burst into the Bronx home of Gerald Bryan, ransacking his belongings, tearing out light fixtures, punching through walls, and confiscating $4,800 in cash. Bryan, 42, was taken into custody on suspected felony drug distribution, as the police continued their warrantless search. Over a year later, Bryan’s case was dropped. When he went to retrieve his $4,800, he was told it was too late: the money had been deposited into the NYPD’s pension fund. Bryan found himself trapped in the NYPD’s labyrinthine civil forfeiture procedure, a policy based on a 133-year-old law which robs poor New Yorkers of millions of dollars every year; a law that has been ruled unconstitutional twice.
“They do this all the time, to so many people I know,” Bryan, a bartender of 21 years, told us in the office of the Bronx Defenders. Before the raid, he had planned on using the cash to take his girlfriend on a cruise. “A lot of people, when they get arrested, they know that their money is just gone, and they know that the police are taking it to enrich themselves.”
Civil forfeiture, the act by which a municipality can seize money during an arrest, has always been a controversial weapon of law enforcement. The practice became more prevalent in the 1980s, when jurisdictions around the country began pursuing cases involving money in both civil and criminal court in an effort to fight organized crime and deprive criminals of their income, even if they couldn’t imprison them.
This summer The New Yorker published a sprawling investigation on how cities use the practice to bolster their cash-strapped coffers by seizing the assets of the poor, often on trumped up charges.
The line about the policy “being ruled unconstitutional twice” pertains only to specific versions of the New York City forfeiture policy. Civil asset forfeiture in general, the idea that the government should be able to take and keep your property without ever charging you with a crime, has been upheld as constitutional by the U.S. Supreme Court. In fact, the Court has held that you can lose your property even if someone else used your property to commit drug crimes, and you weren’t aware of it. The former head of the forfeiture unit for the Bronx DA’s office told Gothamist that in about 85 percent of civil forfeiture cases, the property owner is never charged with a crime.
Gothamist reports that more than a year later, Gerald Bryan got his money back. But it didn’t come back out of the NYPD pension fund. It apparently came from the city’s general fund, which is to say the city’s taxpayers. So even when the police are found to have wrongly seized someone’s property, not only aren’t they sanctioned, at least in this case, the cops’ pension fund is still $4,800 richer than it otherwise would have been.
The money can also go for new equipment, parties, and travel expenses to training seminars. Some of those seminars are held in places like Las Vegas or Hawaii. And some of them are seminars on how to seize more goodies under asset forfeiture policies, bringing the whole scam full circle. In Detroit, the DA’s office has been taking the cars of men suspected of patronizing prostitutes. (The woman in question need not be an actual prostitute.) In Fulton County, Georgia, forfeiture money has gone for steak dinners, lavish parties, and a sweet new security system for the DA’s private home. Other things cops and prosecutors have bought with forfeiture funds: a tanning bed for the police chief’s wife; “The Ponderosa,” a “weekend home” for the local sheriff; a Zamboni; gold-plated police whistles; and a margarita machine for the DA’s office. (To be fair, the office did win first place in the county fair’s margarita-making contest.)
My all-time favorite story has to be the one about Ron Sutton, the 30-year Texas prosecutor who spent more than $25,000 in forfeiture money to take his entire staff, their spouses, and a judge on a Hawaiian vacation. Sutton’s defense: A judge signed off on the trip. Yes, it was same judge who went on the same trip he’d just approved.
With no sanction for wrongful seizures, and if taxpayers foot the bill when bad seizures need to be paid back, there’s really nothing stopping unscrupulous NYPD cops — or unscrupulous cops from any other jurisdiction with similar policies — from “finding” a drug connection for every decent-sized sum of cash they come across.
The thing is, we already had this debate about 15 years ago. It resulted in some reforms, both at the federal level and in a number of states. When the public scrutiny died down, many police agencies slipped back into old habits. And in some cases — like in Utah, as I reported last week — lawmakers have quietly relaxed those reforms, usually at the urging of police groups and prosecutors, and often without any public debate.
UPDATE: I had email exchanges with a couple defense attorneys in New York, who explained a little more about what went on with Gerald Bryan. It seems that in New York, forfeiture money that is deposited into the pension fund is money is then subtracted dollar for dollar from the general fund. In other words, every forfeiture dollar added to the pension fund is one less dollar taxpayers pay into it. So when Bryan was paid back his $4,800 from the general fund, it was $4,800 that, but for the forfeiture, would have come from the city’s general fund anyway. Of course, that doesn’t justify the fact that the police attempted to take his money in the first place. Or that it took him more than a year to get it back. But it does make this particular case somewhat less outrageous than the others.
Also, this post originally stated that the NYPD forfeiture investigation ran at Gawker. It was actually published by Gothamist. My apologies for the error.