Updated, Feb. 13, 2015: Mayor Muriel Bowser signed the reform.
The Council of the District of Columbia voted unanimously on Tuesday in favor of overhauling the city’s civil forfeiture laws, which lets police seize property from people never charged with a crime. Law enforcement can then pocket all of the proceeds gained from forfeiture.
The Civil Asset Forfeiture Amendment Act of 2014 stabs at the heart of what makes civil forfeiture so potentially corrupting: Letting cops and prosecutors keep what they forfeit creates “at best, the appearance of a conflict of interest, and at worst, an unchecked incentive for slush funds,” remarked Councilman Tommy Wells, who authored the reform. If the bill becomes law, Washington, D.C. would join just eight states that ban policing for profit. Rather than padding law enforcement budgets, any revenue generated with civil forfeiture instead would be deposited into the general fund.
Lawmakers in D.C. also approved closing a loophole that could otherwise undercut this reform. Under equitable sharing, local and state law enforcement can pocket up to 80 percent of forfeiture proceeds if they refer forfeiture cases to a federal agency, which then moves to forfeit the property under federal law. The Metropolitan Police Department (MPD) has routinely participated in this program, spending over $3.3 million in equitable sharing funds since 2008.
Equitable sharing undermines state efforts to curb forfeiture abuse. For instance, both Missouri and North Carolina ban law enforcement from keeping what they seize through civil forfeiture under their state laws. Yet equitable sharing has let police and prosecutors generate millions through this federal forfeiture program.
However, the District’s reform would not take place until fiscal year 2019, since MPD has already budgeted $670,000 a year in equitable-sharing revenue for a special police fund. Both the Institute for Justice and the American Civil Liberties Union urged the council to “immediately stop this conflict of interest” and ban District police from keeping equitable-sharing funds at once. Ultimately, that effort ultimately did not go through.
Over nearly two years, the Institute for Justice and the Public Defenders Service worked with a wide range of allies, including the ACLU, Drug Policy Alliance and Law Enforcement Against Prohibition to overhaul civil forfeiture in Washington, D.C. Thanks to the efforts of a similar coalition in Minnesota, a landmark bill that requires a criminal conviction (or its equivalent) before people could lose their property to forfeiture took effect in August.
Besides removing the temptation to police for profit, the District’s Civil Asset Forfeiture Amendment Act would also strengthen protections for property owners. For many cases, the reform would raise the amount of evidence the government would need to take property. For cars and other motor vehicles, the government would have to show “clear and convincing evidence” that a vehicle was used in the commission of a crime. Likewise, the bill would create a presumption that cash under $1,000 is not forfeitable. To overcome this presumption, the District would also need clear and convincing evidence.
Police in D.C. have been remarkably petty in seizing cash. In one class-action lawsuit settled earlier this year, the median amount taken from property owners was just $120. More recently, The Washington Post found that “half of the more than $5.5 million in cash seizures were for $141 or less.” There’s nothing wrong with carrying cash, especially when the amounts are so small.
It should come as no surprise that the District’s predatory policing disproportionately harms working-class residents. In a report prepared on the bill by the Committee on the Judiciary and Public Safety, the Committee noted that many “‘unbanked’ residents routinely carry monthly rent payments or other large payments in cash on their person.” This new presumption for small amounts of cash would provide a much-needed safeguard to stop cops from becoming muggers.
In another vital reform, the government could only take someone’s home if the owner was convicted of a crime first. This would prevent the District from turning into Philadelphia, where law enforcement has taken nearly 1,200 homes and other real estate properties through civil forfeiture.
Additionally, Civil Asset Forfeiture Amendment Act would implement new notices for seizing property and more stringent reporting requirements. The bill also eliminates the District’s “penal” bond. Under this particularly Kafkaesque law, when property is seized, owners have to pay up to $2,500 just to begin their fight in court.
Before the D.C. bill can become law, Mayor Vincent Gray would have 10 business days to sign, veto or allow the reform to become law without his signature. Since the District is a federal enclave, Congress then has 60 “legislative days” to review the reform.
Washington, D.C. is poised to be a model for other states and cities to drastically overhaul their forfeiture laws and practices. As the Council Judiciary and Public Safety Committee so aptly put it, “police officers should not be emptying the wallets and pockets of residents who have not been convicted of a crime.”
If you or anyone you know has been a victim of civil forfeiture, please contact the Institute for Justice. For more information on policing for profit, visit endforfeiture.com
