The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A recent federal district court decision ruled that the city of Albuquerque, New Mexico's highly abusive asset forfeiture program is unconstitutional. The immediate impact of the ruling is likely to be limited, because the city already discontinued the program in March. The case that the court ruled on was filed in 2016, when the program was still in operation. Nonetheless, the court's reasoning has important implications for other asset forfeiture polices at both the state and federal level, many of which engage in similar unconstitutional abuses, and routinely seize property from people who have never been convicted of or even charged with any crime.
Civil asset forfeiture is a longstanding practice that enables law enforcement to seize property that has supposedly been used to commit a crime—often even if the owner did not actually participate in the alleged crime, and no one has actually been convicted of anything. The Albuquerque case arose because Arlene Hojo lent her car to her adult son, who was later arrested for drunk driving, after which city officials decided to seize the car, even though Hojo did not participate in the alleged crime or have any advance knowledge of it. Judge James Browning ruled that the Albuquerque's forfeiture program violates the Due Process Clause of the Fourteenth Amendment for two reasons:
The Court concludes that the City of Albuquerque has an unconstitutional institutional incentive to prosecute forfeiture cases, because, in practice, the forfeiture program sets its own budget and can spend, without meaningful oversight, all of the excess funds it raises from previous years. Thus, there is a "realistic possibility" that forfeiture officials' judgment "will be distorted by the prospect of institutional gain"—the more revenues they raise, the more revenues they can spend….
The forfeiture program [also] violates procedural due process, because owners have to prove that their cars are not subject to civil forfeiture….
The City of Albuquerque has determined that innocent owners—owners who could not have reasonably foreseen that their vehicle would be used in a way that would subject the vehicle to forfeiture—have a right to keep their vehicles…. Thus, the City of Albuquerque has a constitutional obligation, under Mathews v. Eldridge, to implement accurate procedures for determining an owner's innocence. The City of Albuquerque's hearing procedures do not discharge that obligation, because proving that the City of Albuquerque has probable cause to seize a vehicle does not reveal anything about what the vehicle's owner could or could not have reasonably foreseen.
Both of these concerns apply to numerous other asset forfeiture programs around the country. As the Institute for Justice (the libertarian public interest law firm that represented the property owners in the Albuquerque case), has documented, many states have asset forfeiture programs that allow law enforcement agencies to keep some or all of the proceeds from the seized property. That clearly creates "a 'realistic possibility' that forfeiture officials' judgment 'will be distorted by the prospect of institutional gain'." As with the Albuequerque policy, "the more revenues they raise [through forfeiture], the more revenues they can spend."
The same is true of the federal "equitable sharing" program, under which the federal government "adopts" state cases and then shares the proceeds from seized properties with state and local law enforcement agencies. One of the purposes of this policy, which Attorney General Jeff Sessions reinstated last year after it had been curbed by the Obama administration, is to circumvent state laws preventing law enforcement from profiting from seizures. As Judge Browning explains, such blatant conflicts of interest are unconstitutional under the Due Process Clause, because they undermine procedural fairness and create incentives to seize the property of innocent persons.
It is also, sadly, the case that many states effectively force property owners to prove their innocence by imposing very low standards of proof on the government, just like under the Albuquerque policy. Others give owners little or no opportunity to contest seizures, thereby enabling authorities to hold on to their seized property for months or even years, without so much as a hearing. In my view—and under Judge Browning's reasoning—such practices violate the Due Process Clause of the Fourteenth Amendment, which forbids government from depriving individuals of life, liberty, or property without "due process of law."
If Judge Browning's reasoning is followed by other federal and state courts, it could help curb asset forfeiture abuse in many states. It could also help put an end to the egregious federal equitable sharing program.
Asset forfeiture has attracted widespread opposition on both right and left, because it undermines property rights, harms numerous innocent people, and especially tends to victimize the poor and racial minorities, who often lack the resources to effectively contest seizures. Sessions' reinstatement of equitable sharing inspired a petition asking Congress to reverse it, joined by groups as varied as the ACLU, the libertarian Institute for Justice, the NAACP, Americans for Prosperity, the Goldwater Institute, and others. Last fall, the House of Representatives unanimously passed two bipartisan bills that would have curbed the program; but these reform efforts died in the Senate, without coming up for a vote.
Some states have recently passed reform laws abolishing or restricting asset forfeiture, but abusive practices still continue in many others. And, as noted above, the federal equitable sharing program sometimes facilitates circumvention of state reform laws through federal "adoption" of cases.
Judge Browning's ruling could help end such abuses by paving the way for future decisions by other courts. In the fall, the Supreme Court will hear a case addressing the issue of whether some asset forfeiture laws violate the the Excessive Fines Clause of the Eighth Amendment. But civil libertarians and property rights advocates should not rely on lawsuits alone to deal with these issues. As with other successful efforts to expand protection for constitutional rights, the best strategy is often a combination of litigation and political mobilization.
NOTE: I have worked with the Institute for Justice (the public interest law firm that represented the property owners in this case) on a number of other property rights issues over the years, always on a pro bono basis. I do not have any involvement in the present case.