Tuesday, August 1, 2017

What is Civil Forfeiture and How Can it Affect You?

Imagine you own an automobile that you lend to someone. That person gets pulled over by the police and is suspected of using drugs. The police decide not only to arrest the person, who might be a son or daughter, but they confiscate your automobile. Or say you want to buy a house and bring cash to closing. The police stop you with a large amount of cash and they deem it suspicious, and suggest it was going to be used to purchase drugs. Should that happen to you, you are about to enter a descent into the nether regions of the “justice system” in New Jersey. Presumptions of innocence or guilt do not matter because the forfeiture of property occurs under a so-called civil rather than a criminal proceeding. This means certain due process and Constitutional guarantees, for instance the right to have counsel appointed if you cannot afford an attorney, do not apply.

Nothing illegal has been committed, but the police can entertain the notion that these were going to be used for a drug purchase or some other criminal activity and seize the money. Doesn’t matter if you never get charged with any crime, you would have to fight to get your money back. And this can take time, and in the meanwhile you are without your money or other property.

There are two types of forfeitures, one involves actual items that may be considered criminal instrumentalities in themselves like controlled substances, illegal firearms, or money that was stolen from a bank. But what about property that is not involved as an instrumentality of a crime, like the automobile that someone was riding in when a fellow passenger is found by police to have drugs, or the house where the son of the owner decides to perpetrate some criminal act, and the mother or father’s house gets subject to civil forfeiture. These have nothing to do with the crime, they are not intrinsically illegal, and yet they might be subject to forfeiture to the authorities.

And there is no necessity for a criminal conviction. In fact, property can be seized and no charges ever brought. In one case that I was involved in, a group of people got stopped near the George Washington Bridge. They had just left Ohio. One person had cash because she just cashed her income tax refunds. Another had money that his mother had loaned him for the trip. They were pulled over because they were deemed suspicious (four black people in a car with out-of-state plates). No drugs or contraband were found, but the money itself was deemed suspicious because it was stored in a manner similar to that used by drug dealers, according to the police.

No charges were brought. The parties had to “prove their innocence” to the prosecutor by accounting for where the funds came from. Ultimately, the county prosecutor agreed to return the funds without going to court, but the parties had to agree not to sue the County for the withholding of their funds.  Otherwise, they would have to go to court, and the County would only have to prove by a preponderance of the evidence that the money could have been connected to a drug purchase, without any proof of drugs.

And if you ever find yourself in such an unfortunate circumstance, you need to remember that you are not entitled to a public defender, you will not only have to pay your own court costs and attorney fees if you challenge the taking, but you may have to pay the fees for the state or county as well. When many takings are in small amounts, often only several hundred dollars, most people will just find it easier to walk away rather than to challenge the taking. 

Remember the government has many incentives in conducting these types of proceedings. In New Jersey, the municipal governments retain 100% of the value of the property they seize while the Attorney General’s office retains 95%. These funds are often used to purchase shiny new police cars and other paraphernalia. Only seven states and the District of Columbia prohibit civil forfeitures as opposed to criminal forfeitures (where people are afforded their due process and constitutional rights).  The rest of the states permit anywhere from 45% to 100% of the goods to be used by the authorities. In Philadelphia, for instance, a lucrative “forfeiture machine” operates where the City took in more than $69 million between 2002 and 2013. See Policing for Profit, 2d Edition, published by the Institute for Justice. 

Reporters in Tennessee found that police officers patrolled the Interstate 40 westbound lanes where smugglers were known to haul cash back to Mexico rather than the eastbound lanes where trucks were often smuggling drugs to the East Coast.
NewsChannel 5, (2014, July 15) Retrieved from http://www.scrippsmedia.com/newschannel5/news/newshcannel-5-investigates/policing-for-profit/Timeline-265640441.html and cited in Policing for Profit, at 16.

New Jersey’s Use of the Forfeiture Laws Are Among the Worst in the US According to the Institute for Justice

The State’s forfeiture laws come under N.J.S.A. 2C:64-1 et. seq.  Property subject to forfeiture can include patently criminal action can be taken as well as buildings or premises where offenses have been committed. N.J.S.A. 2C;64-1 covers property that is per se contraband like controlled substances, illegal weapons and the like.

However, N.J.S.A. 2C:64-3 applies to property that is not specifically contraband.  This is property that might have been seized in the course of a criminal stop or investigation, but does not involve property that in itself is illegal. It may involve a car where drugs have been found, a house where someone engaged in prostitution or cash that is “suspicious” but not stolen and not shown to have been involved in a criminal transaction. In those cases, the prosecutor must file a complaint for the forfeiture of the property and the property owner must file an answer in the time proscribed by the Rules of Court. The government though, need not prove that the goods were involved in any criminal act or that the person whose property was taken knew that there was any illegal usage of their property. It is up to the property owner to prove their innocence to the government or court’s satisfaction.

As stated in N.J.S.A. 2C:64-4 “[T]he fact that a prosecution involving seized property terminates without a conviction does not preclude forfeiture proceedings against the property pursuant to this chapter.”  So again, say your daughter is stopped on suspicion of using marijuana. She has cash on her that gets taken. No drugs are found and she is never charged. Do you necessarily get your money back? No. The owner
In order to be able to have the property returned, the owner of the property needshas to show “by a preponderance of the evidence that the owner was not involved in or aware of the unlawful activity and that the owner had of the property by an agent.” N.J.S.A. 2C:6-5. So unlike in the criminal law, the burden of proof against you is a mere preponderance of the evidence, not beyond a reasonable doubt, and the burden is upon you to demonstrate that the property itself is “innocent” and not connected with any criminal activity.

While this at least codifies the innocent owner idea that the SCOTUS denies recognition to, it still puts the owner at a great monetary and legal disadvantage. And when many seizures may involve property of relatively small worth, the legal costs will far outweigh the benefit to be obtained if one actually wins one’s case.

How Does New Jersey Fare Against Other States in Protecting Owners’ Rights?

At least in one way, the New Jersey Supreme Court recognizes certain constitutional rights beyond those that the United States Supreme Court will recognize. In State v. One Honda Accord, 154 N.J. 373 (1998) the New Jersey Supreme Court recognized that the property owner whose property was forfeited will have a right to a trial by jury because, under New Jersey jurisprudence, stating that “the right to trial by jury will be an inconvenience to the State when it seeks to forfeit innocent property. Mere inconvenience, however, cannot justify the denial of a constitutional right. Honda, 154 N.J. at 393.
Citing the above-mentioned study, Policing for Profit, by the Institute for Justice, a recent article described the use of civil forfeiture by law enforcement in New Jersey is among the worst in the nation.  (S.P. Sullivan, “New Jersey Allowing Cops to Seize Assets Among ‘Worst in Country’ Report Finds”, http://www.nj.com/politics/index.ssf/2015/11/nj_cops_seize_millions_a_year_re.html.   An estimated $72 million in forfeiture proceeds was reported by county prosecutors from 2009 to 2013 and another $7 million a year came from federal “sharing” programs. While the county prosecutors do reveal the proceeds that they receive from civil forfeitures, no such information is available for the various local police agencies or for the State Attorney General’s office itself. But again, given the fact that the towns and cities of New Jersey receive 100% of the proceeds back from civil forfeitures, it is in their interest to keep this money conduit available, regardless of whether justice is actually served.

Proposed Reforms

There has only been one bill, S-2267, that has been passed by the New Jersey legislature to attempt a minimal reform at least by way of offering more transparency in the use of these civil forfeiture assets. The bill would have required every New Jersey county prosecutor to compile and submit an annual report to the Attorney General on how much money or property was seized and whether the person from whom property was taken was represented by a lawyer and how the forfeited profits were used by law enforcement. This bill was passed through both houses in January 2017 and then promptly vetoed by our governor, Christie in February claiming that it would impose an undue burden on prosecutors. http://www.nj.com/politics/index.ssf/2017/02/christie_vetoes_bill_requiring_cops_disclose_seize.html Feb. 6, 2017.

It should be clear from a review of the forfeiture statute in New Jersey and the way that the laws have been applied on the Federal level with even less protection for the innocent owner, that despite the contortions of reasoning that the US Supreme Court has used to justify the lack of due process for so-called “innocent owners” and its continued attempt to continue the fiction of “guilty property” that dates back to the times of the Magna Carta, the use of these civil forfeiture statutes remain a travesty when used against people who have had no connection to criminal activity or who have merely had the misfortune of being related to someone who has, and then had their property forfeited.

 Anthony Van Zwaren, Esq.
340 Clifton Avenue
Clifton, NJ 07011

973-246-9659, email tonyvan.zwaren@gmail.com  or find at www.avzlawoffice.com

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