Article: Justice Department Restricts Program Giving Police Incentives for Warrantless Seizures


On January 15, the Department of Justice (DOJ) announced it was cutting back on a long-running and increasingly criticized federal program encouraging state and local police without warrants to seize cash and property from persons suspected of criminal activity.

Many states have civil asset forfeiture laws, which the DOJ action does not affect. But the federal “equitable sharing” program has let state and local police use federal civil asset forfeiture procedures – often more permissive than those under state laws – to seize currency and other property without getting search warrants or filing criminal charges. The federal program allows local and state police departments to keep up to 80% of the seized amounts.

Federal civil asset forfeiture began to expand in the 1970s, when Congress authorized federal agencies to seize vehicles used in drug operations. It was later broadened to cover cash linked to drug trafficking and to authorize state and local police agencies making seizures under federal laws to keep a share of the seizures.

A detailed series of articles in the Washington Post in 2014 – which looked at years of DOJ documents — estimated that between 2001 and 2012, state and local police made seizures under the program from about 62,000 individuals, seizing $2.5 billion. State and local law enforcers received back about $1.7 billion of that total (the rest went to federal agencies). While civil asset forfeiture was intended to target major crime figures and transactions, state and local seizures often involved cash carried by motorists stopped for minor infractions; seized amounts averaged less than $8,800.

The federal program proved a ready source of funds for participating state and local law enforcers. New York City’s police department, for example, took part in 2,167 seizures totaling over $134 million, and was allowed to keep $27 million. Over the same period, the New York Port Authority and New Jersey police retained $6.3 million of the $30.5 million they seized.

Even though their property was seized without a warrant, and criminal charges did not have to be filed, those whose cash or property is seized can only get it returned by going to court and proving it was not tied to drug trafficking or another federal crime. That’s because the legal actions, based on maritime precedents, were in rem (directed at the seized item, rather than at the former owner).

The seizures were challenged in only about 10,000 cases, but in 4,455 of those challenges, the government eventually agreed to give back the seized funds. The proceedings often took over a year, and claimants were frequently required to agree not to sue the law enforcers over the seizures.

As accounts of unjustified seizures multiplied, bipartisan criticism of the program mounted in Congress. Finally, Attorney General Eric Holder declared federal and state seizures would not be included in the program unless they were made “for public safety reasons,” specifically mentioning illegal firearms, ammunition, explosives and child pornography. He also said DOJ would undertake a wider review of its civil asset forfeiture programs, and the new restrictions would also apply to civil asset forfeiture programs at the Treasury Department.