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A Greater Evil: The Moral Peril of Asset Forfeiture Laws

  • 9 min read

In short, Minnesota’s current law on asset forfeiture (government takes your money):

  1. Seizure: The government (police) can take your property at any time if suspicious to them, even if you are innocent. On a practical level, possession can be 9/10s of the law.
  2. Lack of due process: The burden is on you, not them, to do something about getting a court to look into it.
  3. Presumed guilty: If you do nothing, they keep your property, your money; and you lose; without a judge ever seeing the case.
  4. Unequal Justice, Barriers to Justice: If you want to do something about it, you need cash for a lawyer and court filing fees. But we pay the government’s lawyer with our taxes. And the law exempts the government from paying court filing fees.
  5. Corruption & Conflicts of Interest: The police agency that took you down gets to keep 70% commission on the cash, valuables, your vehicle they seize from you. Could this affect their honesty or bias about their investigation. Does this create an appearance of impropriety?

The King vs. Lords vs. The People

Property rights for common people are recent individual human rights, against the government or the king.

In 1066, William the Conqueror seized nearly all the land in England. He exercised complete power over the land.

And he granted fiefs to landholder stewards; who paid fees and provided military services as a condition for use of the King’s land and the King’s people.

But centuries later, the Magna Carta asserted that the government must pay cash payments to the people for takings of land. Over time, tenants held more ownership rights rather than only possessory rights over their land.

William the Conqueror 180
William the Conqueror

The Third Amendment to the United States Constitution says:

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

Third Amendment, United States Constitution

This amendment was to prevent soldiers taking over private property. The British armed forces had done so in Colonial America under the Quartering Act, before the American Revolutionary War.

Property rights for the little people?

The Fifth Amendment to the United States Constitution says:

“No person shall be … nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Fifth Amendment, United States Constitution

A goal was to destroy lingering feudalism.

Under feudalism, the government owns the property. And the common people own nothing, except at the discretion, whim or caprice of the government.

But the third, fifth, eighth and fourteenth amendments of the United States Constitution all attempt to further destroy feudalism.

And yet history shows us that the struggle for individual property rights, against government theft, seizure or taking continues. The common people have gained and lost. And we have gained again over the years, both in politics and in law.

Robbery, Asset forfeiture, Hypothetical

Imagine that you are peacefully driving down the road, having an average day. Then, people in a vehicle with weapons stop you. They hold you against your will. These people question you in a controlling manner. And then they ask for your “consent” to search; though they act as if it will happen regardless.

They take your personal valuables. And they seize your vehicle. But there is no court process. It’s just gone. And they have it now. You no longer do. You work hard. But they take it, claiming the law.

What would you call this? Armed robbery?

But what if the “people in a vehicle armed with weapons” stopping you were police officers of the State of Minnesota; acting under the color of the laws of Minnesota?

Now what do you call it?

“Administrative Asset Forfeiture.” And what does that mean?

Asset forfeiture laws are a type of government “taking” of private property. And they have been around a long time. But they have degenerated in recent years from “Judicial Asset Forfeiture” after conviction or other judicial review; into “Administrative Asset Forfeiture” on a police officer’s mere suspicion. What’s the difference? First, a little background and context.

If you steal from a thief, is that stealing?

Does every thief claim justification? Almost.

The government claims two justifications for laws permitting it to seize and keep private property it suspects having a connection to crime:

  • instrumentality, and
  • criminal proceeds.

Instrumentality. If a burglar uses special tools to commit a burglary; then the government seizes and keeps those, as “instrumentalities” of the crime. And this may disable the burglar from committing a similar crime. Almost all asset forfeiture seizures in Minnesota are of this type.

The instrumentality rationale for property forfeiture, however, has been stretched wafer thin. The state most commonly uses it in cases of suspicion of prostitution, DWI, and prohibition drugs possession.

Criminal proceeds. This type of forfeiture case is rare. And it involves efforts to trace (“equitable tracing”) the source of the funds used to purchase an asset to crime. These usually involve larger dollar amounts only, well over $100,000 per case. The type of crime alleged is less important.

Asset forfeiture: Cash taken by U.S. Customs
Cash taken by U.S. Customs

Is the Property Guilty? Is the Owner?

Nothing Personal: “In Rem” Jurisdiction. Few asset forfeiture cases ever make it into court. But for those that do, the legal pleadings caption the name of the owner vs. the property (not the thief.)

“Rem” is Latin meaning “thing.” So when courts exercise “in rem jurisdiction,” they assert authority over a thing, not a person. And like much in the law, there are historical reasons for this.

If the justification for the “taking” of another’s property is the property’s connection to crime; should we be certain that the owner really did commit a crime in connection with the property?

Should police be able to seize and keep your vehicle or other property even though you’re “presumed innocent?” And before you get “a hearing before a fair and neutral magistrate?”

Reversing the burden: In Minnesota, police can now seize your vehicle or other property under circumstances they see as suspicious. And then they can keep it, sell it and keep the cash; unless you file a court challenge “EXACTLY AS PRESCRIBED IN MINNESOTA STATUTES SECTION …” within 60 days.

You’ll need money for lawyer and court filing fees – just to get a day in court, about the government taking your property.

Asset forfeiture laws: government crime pays

Conflicts of interest: The money they get from your property after they sell it? “70 percent of the money or proceeds must be forwarded to the appropriate agency…” i.e., the same Police Agency that originally took your Private Property. This is Minnesota’s current “administrative” asset forfeiture scheme.

What about “Judicial Asset Forfeiture?”

Judicial asset forfeiture affords more procedural due process. It affords the right to notice and a hearing before a neutral magistrate before the government can keep your property. But the law does not currently require a criminal conviction before the government can prevail.

Who are the victims of government asset forfeiture?

Targeting unbanked, low-income people: The salt of the earth, the common people of modest means, have disproportionately been the victims of government abuse, negligence and shoddy practices in criminal law. And when it comes to asset forfeiture laws, it is no different.

It’s reverse Robin Hood. The rich government steals from the poor. But their laws say it’s o.k. …

Return of modern age feudalism?

Might makes right: Police officers on an asset-forfeiture treasure hunt take cash. And they take gold, vehicles, other valuables from a person never charged, never convicted of any crime.

And what is the cost-benefit ratio for that person to fight for return of the property in court? Could they even afford to (hire a lawyer, pay a court filing fee) if they wanted to? Can they do all that within the 60 day deadline? Would that cost too much relative to what police stole from them, to be worth it?

Do they have enough faith in the legal process to believe it would be fair, anyway?

The innocent are victims of asset forfeiture laws: Sometimes the innocent owner is not accused of having any criminal association. But police suspect a mere association with another who is suspected, such as a spouse, parent or employer. This is an anti-marriage law, that encourages the divorce of a troubled spouse. These laws are anti-family: people, children suffer as a result.

Is the Minnesota government corrupt; preying upon the weak? And are its laws a corrupting influence on our good police officers?

Government Excuses for Asset Forfeitures

Police commonly seize property for forfeiture in these types of criminal investigations:

Change the laws; protect your family from government

Has the time has come to reform (or repeal) asset forfeiture laws in Minnesota? Call your legislator. The Institute for Justice is an organization helping lead this fight.

The author, Thomas C Gallagher, is a criminal defense attorney in Minneapolis.

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