Texas police made more than $50 million in 2017 from seizing people’s property. Not everyone was guilty of a crime.
Law enforcement leaders say civil asset forfeiture is a necessary tool for fighting crime, but several lawmakers see it as a violation of Americans’ civil liberties. Texas legislators are poised to take up the issue once again in 2019.
Civil asset forfeiture is a tool supported by law enforcement leaders, who say it is necessary for fighting crime, but panned by both liberals and conservatives who see it as a violation of Americans’ civil liberties and sometimes refer to it as “policing for profit.” It’s a longstanding, nationwide practice that has regained steam under the Trump administration but faces constitutional challenges in court.
When police seize a person’s property, the onus falls on the owner to prove the property was “innocent,” or not linked to a crime. If a person doesn’t fight the seizure in court — which is what happens in the majority of cases — they lose their property automatically. Many cases involve property worth no more than a few thousand dollars, and attorneys’ fees can end up being more costly than the value of the property itself.
Last year alone, law enforcement agencies and prosecutors throughout Texas grew their coffers more than $50 million by seizing cash, cars, jewelry, clothing, art and other property they claimed were linked to a crime. That includes property seized under both criminal forfeiture — which requires someone to first be found guilty of a crime — and civil forfeiture, which allows the state to sue the property itself and doesn’t require a criminal charge. The Texas Attorney General’s Office, which tracks these figures, does not distinguish between the two.
How much property and money was seized from people, like Rodriguez, who weren’t charged with any crime? That information isn’t collected in any meaningful way in Texas, and state lawmakers, at the urging of prosecutors and law enforcement, have resisted attempts to report more detailed information about asset forfeiture to the public.
“One wonders if our colonial ancestors, transported to 2014, would be astonished — watching government seize, then sell, the property of guiltless citizens who have not been charged with any crime, much less convicted of one,” former Texas Supreme Court Justice Don Willett, a Republican who has since been promoted to a federal appeals court by President Donald Trump, wrote in 2014. “A generation ago in America, asset forfeiture was limited to wresting ill-gotten gains from violent criminals. Today, it has a distinctive ‘Alice in Wonderland’ flavor, victimizing innocent citizens who’ve done nothing wrong.”
Extreme cases of abuse have occasionally grabbed the attention of the public and of lawmakers, who in 2011 made a rare move to rein in police seizures. That followed a lawsuit brought by the American Civil Liberties Union a few years before, which alleged that police in the tiny East Texas town of Tenaha were conducting “highway robbery” by shaking down drivers — primarily people of color — for cash under threat of jail time. The suit accused law enforcement in Tenaha of threatening to have children removed from their families if the drivers they’d stopped on U.S. Highway 59 didn’t sign waivers allowing officers to seize their property without a court proceeding.
From 2006 to 2008, officers in Tenaha seized approximately $3 million from at least 140 people, according to the lawsuit, which was ultimately settled with local law enforcement not admitting to wrongdoing. With the lawsuit in the news, Gov. Rick Perry in 2011 signed legislation prohibiting the use of such waivers, forcing all forfeitures to go through court.
The law also limited how law enforcement can spend the money they seize, banning officials from using it to pay for things like margarita machines, as former Montgomery County District Attorney Michael McDougal did in 2005 — or trips to Hawaii, as a former Hill Country district attorney, Ron Sutton, did from 2002 to 2007. The legislation passed just months after a former South Texas district attorney pleaded guilty to misappropriating more than $2 million in seized funds, paying $1.2 million in bonuses to three secretaries and another $81,000 to himself.
The 2011 law faced almost no opposition, but some Democrats and Republicans at the Texas Capitol have called for further reforms to an asset forfeiture system they believe is inherently abusive. Lawmakers on the left cite forfeiture’s disproportionate effects on low-income people of color who can’t go to court to fight back. Those on the right cry out against government overreach that infringes on private property rights and snubs due process.
In recent years, however, most efforts to change the system have fallen flat at the Capitol. Sheriffs, prosecutors and police have urged lawmakers not to further limit a power they say is crucial to their ability to fight crime and drug cartels — and which they say was already cleaned up by the 2011 law. Law enforcement officials say taking money and drugs linked to cartels is one of the most effective methods they have to fight them.
“We’re sitting here at the tip of the spear of cartel activity, and we need asset forfeiture as a tool,” Jackson County Sheriff A. J. “Andy” Louderback said. “It’s a viable tool that we’re not misusing. … There’s accountability in the system that’s been there for a very long time.”
The battle over reform will continue in January when the Texas Legislature convenes for its biennial session. At least two lawmakers have already filed bills that would limit asset forfeiture’s scope, and the Texas Republican Party asked lawmakers to abolish asset forfeiture without a criminal conviction in their 2018 platform. Still, reformers face long odds: Gov. Greg Abbott and Lt. Gov. Dan Patrick have remained almost completely silent on the issue, and after last month’s elections, advocates lost one of their most vocal Republican allies in the Texas Senate.
“A great threat” to property rights
Outgoing state Sen. Konni Burton, R-Colleyville, was so incensed about civil asset forfeiture that she led a press conference early in the 2017 legislative session to announce that a bipartisan coalition of lawmakers was ready to reform the practice. They filed a slew of bills that proposed significant changes to police power, ranging from a total abolition of civil asset forfeiture — by requiring a person to be found guilty of a crime before their property can be forfeited — to requiring more disclosures from law enforcement agencies about how and when they use it.
Other bills sought to help people whose property was seized, such as by making the government pay for any lawyer or court fees if the state loses or drops the case. Another proposal would have placed the burden of proof on law enforcement, rather than on property owners fighting to reclaim their possessions.
“Unknown to many, including some lawmakers, a great threat to the property rights of Texans is staring us right in the face,” said Burton, who lost her re-election bid in November. “The seizing and keeping of an individual’s property without a criminal conviction is in opposition to everything this country was founded upon, and it must change.”
Think it can’t happen to you? Check your State & Local police records and laws.