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.