A Police Group's Comments on Civil Asset Forfeiture Show Exactly Why It Needs Reform
"You've got to be able to demonstrate some level of legitimacy" the head of the National Sheriffs' Association says of carrying large amounts of cash.
Traveling with large amounts of cash in the U.S. is perfectly legal, but the head of the National Sheriffs' Association (NSA) said in a recent interview that "you've got to be able to demonstrate some level of legitimacy."
The comments came in a recent interview with North Carolina news outlet WCNC Charlotte on civil asset forfeiture, a practice that allows police to seize property even in cases where the owner isn't charged with a crime.
In October, WCNC Charlotte reported on how a sex crime victim was denied a court-ordered settlement from her abuser because police had already seized his cash through civil asset forfeiture and handed it over to the federal government.
WCNC continued its excellent series on civil forfeiture Wednesday, reporting that Charlotte-area police departments had received $20 million since 2018 through the Justice Department's Equitable Sharing Program. The story included a notable interview with Jonathan Thompson, executive director of the NSA.
Thompson's exchange with a WCNC reporter is worth quoting in full:
"You want to assume everybody's innocent of a crime that's carrying $1 million in cash?" Thompson asked.
"Isn't that the way the law works? You're innocent until proven guilty?" WCNC Charlotte responded.
"You are innocent until proven guilty, but you are not just carrying around $1 million or $10,000 in cash without some level of notification and legitimacy," he replied. "You've got to be able to demonstrate some level of legitimacy."
"If it's not illegal to carry the cash, why should I have to prove that it's my cash to begin with?" WCNC Charlotte asked.
"How do I know this is yours?" he replied.
"You could get probable cause and arrest me," WCNC Charlotte responded.
"That's exactly what they do and if they don't, they need policies and procedures," Thompson said. "Let's define the proper guideposts here. That's what we're saying."
There are several issues with Thompson's comments—the dismissal of the presumption of innocence, and the rather extreme range of what's considered suspicious cash, for instance—but his claim that obtaining probable cause and arresting suspects is exactly what police do in civil forfeiture cases is incorrect.
A 2017 report by the Justice Department Office of Inspector General found that the Drug Enforcement Administration (DEA) seized more than $4 billion in cash from people suspected of drug activity over the previous decade, but $3.2 billion of those seizures were never connected to any criminal charges.
Many of those seizures occurred at airports, where local police, often as members of DEA task forces, frequently seize cash from travelers on suspicion of drug trafficking, despite no physical evidence and it being perfectly legal to fly domestically with large amounts of cash. Reason has covered case after case of travelers whose cash was seized despite never being charged with a crime.
A federal court ruled in September that Detroit's asset forfeiture program violated the constitutional rights of vehicle owners by making them wait months, even years, for hearings to challenge the seizure of their car. Of course, they also had an option to pay a hefty settlement to get their car back immediately. One of the federal judges in the case called Detroit's scheme "simply a money-making venture—one most often used to extort money from those who can least afford it."
Four states including North Carolina now require criminal convictions before property can be forfeited because of abusive cases like these. But local police departments can get around strict state laws by partnering with the Justice Department and going through federal court. By participating in the Equitable Sharing Program, the department keeps up to 80 percent of the forfeiture revenue.
Spurred by outrageous stories like those uncovered by WCNC and other news outlets around the country, a bipartisan bill was introduced this year in Congress that would, among other significant reforms, eliminate the Equitable Sharing Program.
The NSA opposes the bill, arguing that it would "dismantle a crucial tool in the fight against the Mexican drug cartels" based on "an incomplete picture of the fight against trafficking."
"No one should support the egregious anecdotes of individual abuses-seizures of valuable real property or vehicles for relatively minor crimes or coercion of out-of-town travelers to surrender their cash with threats of criminal charges," the organization wrote in a letter to Congress. "But focusing on a few anecdotes results in bad policy."
All of this aside, a core principle of the American legal system is that you should be free to go about your business without having to show your papers to some officious, sticky-fingered busybody. The legal fiction of civil asset forfeiture—that it's an action against the property, not the owner—and the Supreme Court's endorsement of pretextual traffic stops were created to get around this principle, and Thompson's comments demonstrate exactly why that's a problem.
