Guilty Until Proven Innocent: Washington, D.C.'s Civil Forfeiture Racket

Policing for profit in the nation's capital.

Jerrie Brathwaite was not in her car when Washington, D.C. police seized it in January 2012. She had lent her 2000 Nissan Maxima to a friend, and that friend was pulled over, searched, and found to be in possession of drugs. A year later, Braithwaite—who has never been charged with a crime—still doesn’t have her car back, and no one from the Metropolitan Police Department (MPD) will return her calls.

Brathwaite, 33, is knee-deep in the murky world of civil asset forfeiture, where confiscated cars, cash, and other property disappear into police coffers, and where legal recourse for owners is confusing, slow, and expensive. Under civil forfeiture, police can seize property from people who are never convicted—much less charged with—a crime. Unlike criminal forfeiture, where the government must prove property was used in the commission of crime, civil forfeiture law presumes an owner’s guilt.

According to Brathwaite, a single mother of three living in Southeast Washington, D.C., a police investigator told her in June that the car was no longer needed as evidence in the case against her friend, and would be released. “He told me…to make sure I faxed him all the necessary paperwork…. I faxed everything and I just haven’t heard anything,” she says. “I’ve been calling. I called in the past three months I know at least 10 times and left voicemails and no one has called me back.”

Brathwaite's situation—and the MPD's behavior—are not uncommon. Civil forfeiture is a national problem. Law enforcement agencies seize millions of dollars worth of property each year with little or no due process for owners. In all but six states property owners are considered guilty until proven innocent. State law typically allows law enforcement to keep most or all of the proceeds from forfeiture—an enormous incentive to police for profit. 

In court filings, MPD claims to have sold over 200 forfeited vehicles at auction in the last three years—and to have returned 16 to 20 vehicles a week to property owners during that time. MPD says it collected $358,000 from civil forfeiture in fiscal year 2011, according to court documents. Over the same period the department received $529,000 from federal equitable sharing, a program in which local law enforcement turns cases over to federal prosecutors. The feds process the forfeiture and then return 80 percent of the proceeds to the seizing agency. It's a finder's fee of sorts for local cops.

In theory, the government uses asset forfeiture to strip criminal enterprises of resources and “toys”—the cars, planes, boats, and homes that make the illicit life look glamorous. But a glance at the legal notices the department publishes periodically in The Washington Times reveals the city is hardly targeting kingpins. A notice from last September lists these cars: a 1985 Chevrolet, a 1994 BMW, a 1999 Lincoln, a 1994 Lexus, a 1991 Honda, and a 2001 Chevrolet. Most seizures are of cash—generally less than $100 and as little as $7—taken from thousands of people each year.

“Many of these clients don’t have money, don’t have assets, some are innocent,” says criminal defense lawyer Henry Escoto, who is pursuing a class-action lawsuit against the city. “Many times just because police arrest somebody for possession of a controlled substance doesn’t necessarily mean that the money they have on them came from illegal proceeds. It could be many of these guys have jobs and get caught with rent money or their paycheck. That’s pretty significant.”

By law, the MPD must notify property owners of their constitutional right to challenge a forfeiture, but it recently emerged in court that up to 2,000 of the 3,000 property owners who had property seized in 2009 may not have received notice.

Brathwaite didn’t wait for the department to issue a Notice of Intent. She went to a police station right after the seizure and was given a number to call. “So I called and for about a month I got the runaround,” she says. “They was telling me to call this place and call another place, and I finally got a number and got in touch with a, I guess he was an investigator. So I called him and he was telling me that he had to wait until the file got to his desk before he could discuss anything with me, which took I think six weeks before he even called me back.”

Once owners receive notice, they have 30 days to challenge the forfeiture or the District assumes control of the property automatically. To file a challenge, owners must put down a $250 to $2,500 bond, which can exceed the value of the seized items (the MPD assigns a dollar amount based on its estimate of the items' value). But unlike a criminal bond, where owners can get access to their property (or go free) until trial, the civil asset forfeiture bond is actually just a filing fee that initiates litigation. If the owners cannot afford a lawyer, they must conduct a trial, which can last a year, themselves. And the outcome is far from certain because civil forfeiture law presumes guilt—a total inversion of the principle that a suspect is innocent until proven guilty.

Last October, D.C. City Council Chairman Phil Mendelson and Council Member Mary Cheh introduced legislation that would substantially improve protections for property owners. The bill, which has been reintroduced for the 2013 session, would shift the burden of proof to the government, eliminate the bond requirement, and mandate the return of confiscated property if the District fails to provide a hearing before a neutral arbiter within two days of a challenge.

Perhaps most important, the bill would direct all forfeiture proceeds, 100 percent of which currently go to the MPD, into the city’s general fund—regardless of whether the MPD or the federal government handles the case. That’s significant because state laws that do not address the federal equitable program sharing do not eliminate local law enforcement's ability to police for profit. Local police routinely use equitable sharing to evade state laws that limit the share of forfeiture proceeds returned to the seizing agency. 

If passed as is, the 2013 bill would provide D.C. residents with some of the best protections in the country and would provide state legislators with a model to follow. A hearing on the bill has yet to be scheduled, but the legislation has the support of eight out of 12 council members. That's all to the good but, in the meantime, Jerrie Brathwaite still doesn't have her car back.

Click here for more of D.C.'s asset forfeiture regime.

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  • Live Free or Diet||

    And people wonder why I think we need to build a wall around DC ... and fill it to the top with water.

  • Moridin||

    Sounds like the perfect solution!

  • Tulpa (LAOL-PA)||

    This isn't just a DC problem.

  • Live Free or Diet||

    It's called a good start.

  • Jorge L. Stevens4||

    just as Walter replied I am inspired that a mom able to get paid $4573 in one month on the computer. have you read this web link. www.snag4.com

  • Death Rock and Skull||

    I'm not going to get naked for strangers on the internet.

  • An0nB0t||

    No, no. The strangers get naked and pay you to look at them. Or so I hear.

  • Death Rock and Skull||

    Cement.

  • Tulpa (LAOL-PA)||

    Asset forfeiture and executive privilege: two reasons to lament inheriting the common law.

  • -Umbriel-||

    Don't blame the Common Law. I believe the original purpose of "in rem proceedings" law was simply to allow claims against absentee landlords to proceed. The idea that it somehow trumps the due process rights of a known defendant in an otherwise conventional case is purely a modern and abusive invention

  • Tulpa (LAOL-PA)||

    Except the govt claims in such cases that the goods are ownerless since there is reason to believe they came into the person's possession by unlawful means.

    Common law gives them the structure to hang civil forfeiture on.

  • Xenocles||

    Property becomes ownerless if it's stolen?

  • Tulpa (LAOL-PA)||

    Ownerless probably isn't the right term. Not owned by the current possessor, I mean.

  • Xenocles||

    But is there any reason to believe that at common law chattels would not be returned to the owner after exhausting any evidentiary use?

  • Robert||

    No, according to the article in Reason ca. 1990, by my recollection, the example given in the old law book concerned something like an axe head which, being defective, flew off the handle and injured someone, and thereby was forfeited to the king, "and yet no fault lyeth in the owner."

  • Gene||

    While apprenticing as a Bricklayer years ago, I recall getting reamed out by an old brickie when he observed me (wailing away on a big stone window sill) fiddling with the loose head on my POS hammer every other blow. In this case he made it clear, all fault lyeth in the owner. I arrived the next day with a new one.

  • Robert||

    It explained that the general case is of "deodand" ("deo[d]" = God, "and" = thing subject to), i.e. the rendering of the thing to God -- except that God not being available, it would be rendered to his representative, the sovereign.

    Come to think of it, by coincidence of language, it would seem that passing thru the sovereign's hands expiated the guilt of the object (or land), in the same way that a "deodorant" would operate.

    And no, I'm not stoned.

  • Free Society||

    First of all, the fact that we are talking "civil forfeiture" tells you that this is a matter of civil law, not common law. As far as criminal forfeiture laws, those are statutory laws. A true common law jury system would quash these forfeitures as an affront to fundamental property rights.

  • Sevo||

    Just too "precious" to wait for the PM links:
    "A tour of an unplugged SF home"
    Yes, in the heart of the tech industry this oh, so smug couple opts for 'low tech' (supposedly).
    ..." but what they also get is time. Time to read The New Yorker in its entirety every week; time to bake bread from scratch;"....
    Find your own howl-inducing quote! It's a target-rich article!
    http://www.sfgate.com/homeandg.....199145.php

  • General Butt Naked||

    I love it. By having a pound of paper delivered to their house by truck every week, merely for entertainment/smugness purposes, they automatically should lose their enviro-weenie status.

  • JW||

    Meh. It's hard for me to care how someone else is living their life, as long as they aren't being holier than thou or pushing an agenda where a coercive solution is central to its adoption.

    I'd rather have daily root canals than live the way they do, but if their happy living that way, watch me not give 2 shits.

  • Xenocles||

    It's Saturday, no PM links to wait for.

    And I get a lot of what they're going for. We've cut way back on TV use over the past few weeks, and I'm making an effort to not engage as much in most comment sections (not as much here). The resulting attention to my kids has been rewarding. I think a lot of the problem with info/entertainment tech is that it tends to control me rather than the other way around - and I suspect I'm not alone there by a long shot.

  • Tulpa (LAOL-PA)||

    I can stop at any time.

  • Tulpa (LAOL-PA)||

  • Xenocles||

    Look, I'm a Stoic, so I know I'm always in control. Let's just say that certain things make it considerably easy to hand over the reins for certain people.

  • Sevo||

    Xeno,
    You might well be lonelier in that position than you propose.
    I find it really easy to turn off the TV. In fact, finding a reason to turn it on mostly wanders by, except for some football games and some auto races.
    And then springing hundreds of thousands of bucks in remodeling costs to promote a smug alert?
    Per JW, their choice is theirs, but per Sevo, my right to give them the raspberry is mine.

  • Tulpa (LAOL-PA)||

    I used to be that way but got hooked on Celebrity Apprentice, which has been my guilty schadenfreude pleasure a few months of the year for the past few years. This year they're just bringing back some of the old contestants rather than finding new ones, so I probably won't bother with it.

  • Xenocles||

    Well, sure, there's no reason to be smug about it.

  • The Late P Brooks||

    Remember when the D C police seized Patrick Kennedy's car and auctioned it off after he tried to drive it up the Capitol steps while drunk?

    Rule of Law, FTW!

  • Tulpa (LAOL-PA)||

    He cleaned up and started an anti-marijuana organization, so it's cool.

  • ||

  • ||

    I really don't understand why he didn't opt for a snub revolver.

  • Live Free or Diet||

    Europeans have been stuck against revolvers since at least the 1960s. Americans seem to be developing the same allergy in recent decades. It might make some kind of sense to me if they carried extra mags, but typically they don't.

  • Tulpa (LAOL-PA)||

    For carry pieces most of the gun shops I've seen are about equally split between revolvers and semis. When you get to home defense handguns it's almost all semis but that's probably a capacity thing.

  • JW||

    I saw that earlier today. Tip of the day: don't buy shitty guns that jam.

  • ||

    But it fits inside his purse!

  • ||

    It's a European man-bag.

  • Live Free or Diet||

    Tip of the day: don't buy shitty guns that jam.

    Want to bet he forgot to chamber a round or left a safety on?

  • Tulpa (LAOL-PA)||

    Looks like the fellow beat some of the security officers' feet with his face after the failed attempt.

    i do like the way the assassination target handled himself. I can't see BO disarming and knocking an attacker down.

  • ||

    Pretty sure BO would have pissed himself while assuming the fetal position.

  • Ted S.||

    I thought Bulgarian assassins used umbrellas.

  • ||

    No, that assassin was Italian.

  • waaminn||

    That Kangaroo Court system is a money making machine!

    www.AnonGo.tk

  • Robert||

    You're explaining this wrong. Reason had an article explaining it for real over 20 yrs. ago. Forfeiture is an in rem proceeding, and does not presume the guilt of the owner. Rather, the issue is the "guilt" of the thing seized. There doesn't even have to be any guilty human being involved.

    What was never explained, however, was how passing thru the sovereign's ownership was supposed to expiate the guilt of the thing forfeited. If the item itself is at fault, it should be destroyed, no? Yet somehow, the sovereign can take it, and by taking it make it no longer defective, and even sell it.

  • Xenocles||

    The item gains sovereign immunity by virtue of the sovereign owning it, of course.

  • ||

    Sovereign immunity.

    It's just been revoked!

  • Tulpa (LAOL-PA)||

    Like many other things in the common law, there doesn't have to be any logic to it. Destruction certainly wouldn't be an option for real estate property, for example.

  • yonemoto||

    What's with the ragging on common law?

    "Like many other things in law, there doesn't have to be any logic to it."

    There. That's better. Now, that is not to say that nothing in law has any logic, it just says that there are plenty of things in law *writ large* have make no logical sense.

  • Tulpa (LAOL-PA)||

    Let me be clear. There are those who conflate libertarianism and the common law.

  • Death Rock and Skull||

    Legally possesable property should not even be seizable unless it is for restitution to victims of harm or damages, or to pay legitimate debts- not "debts" owed to the government for being prosecuted. The property owner should have the opportunity to decide which property will be seized in those cases to pay for what is owed. Even people in prison should be allowed to determine disposition of their property.

    Confiscation of stuff because it "may have been used in a crime" or "may have been purchased with proceeds from crime" is bullshit.

  • Homple||

    The best comment I can think of is this link to amendments I through X.

    http://www.archives.gov/exhibi.....cript.html

    I don't know what else to say.

  • Tulpa (LAOL-PA)||

    Of course, the argument that was made for civil forfeiture back in the 1980s, when the tactic was ramped up by the Reagan administration, was that org crime kingpins can create sufficient distance between themselves and the actual crime committers that a conspiracy charge will be impossible to prove. Civil forfeiture provided a means of hitting them where it hurts by seizing ill-gotten proceeds.

    Some restraints that have been attempted, for example the Indiana law that prohibits forfeiture revenue from being used for law enforcement purposes beyond the investigation that led to the forfeiture. This would cut down on some of the abuse, hopefully. Of course the prosecutors always find ways around those restraints.

  • BuSab Agent||

    The Indiana law doesn't work. The LEOs were quick to find work-arounds to the letter of the law so that the proceeds did in fact end up in their coffers. There was a minor stink a while back about how very little of the forfeited funds were going to the state's education budget when the vast majority of it was supposed to end up there.

  • Gene||

    First of all FYTW.
    Secondly a 2000 Maxima? WTF.

  • John C. Randolph||

    This whole racket is very clearly prohibited by the fifth amendment to the constitution, and the fact that it goes on at all proves that this country has no justice system, only an obedience enforcement system.

    Any so-called judge who ever ruled in favor of this racket is not a law man by any stretch of the imagination.

    -jcr

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