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Bal Harbour, Florida is a small village of just 2,574 people, with a police force compromised of 27 officers. Yet, one not so small thing about Bal Harbour is the amount of money the police department seizes through civil asset forfeiture. In fact, the Justice Department is actually investigating this practice by the village’s police.

The Miami Herald reported that federal “agents have frozen millions that Bal Harbour helped confiscate under a program that allows police to seize the riches of criminals — and keep a cut of the proceeds.” While “the village has been forced to turn over reams of records in a grueling audit that’s now under review by U.S. Department of Justice prosecutors.”

It is no wonder why the Bal Harbour police department is under investigation either:

  • [C]ops jetting to Las Vegas, Chicago, Phoenix, Los Angeles — with the goal of seizing millions from criminals.
  • Two flew on first-class flights while two others went business class to California, where they stayed in the wine country of Temecula Valley.
  • In just one month, the village’s police helped reel in $3 million — and by the end of the year, they took more dollars from drug dealers than any police force in Florida.
  • While small police departments rarely venture beyond their borders, Bal Harbour’s force has become a massive cash generator, infiltrating drug organizations across the country with no connection to the coastal village.
  • Armed with a team of snitches and undercover cops, the vice unit makes few arrests, but seizes a fortune in cash every year. {…}
  • And for years, the money rained on Bal Harbour: $100,000 for a 35-foot boat powered by three Mercury outboards, $108,000 for a mobile command truck equipped with satellite and flat-screen TVs, $25,463 for next generation Taser X-2s.
  • There was $7,000 for a police chiefs’ banquet, $45,839 for a Chevy Tahoe, $26,473 for Apple computers, $15,000 for a laser virtual firing range and $21,000 for an anti-drug beach bash.
  • The biggest pay — $624,558 — to snitches over the past four years.

But the idea that this problem is exclusive to the Bal Harbour police department is wishful thinking. The fact of the matter is that the unseemly use of civil asset forfeiture laws allowing police departments to seize and keep property are ubiquitous.

Civil liberties violating civil asset forfeiture laws provide law enforcement officials with the ability to seize and retain the property (cash, cars, real property, etc.) of individuals who are merely suspected of having an involvement with some kind of criminal activity. The true nefarious aspect of these laws is that, unlike criminal forfeiture, under civil asset forfeiture a property owner does not have to be found guilty of any crime to be deprived of their property.

The recent upsurge in the use of civil asset forfeiture is largely thanks to the War on Drugs and the “tough on crime” legislative era of the 1980’s:

[I]n 1984, Congress amended portions of the Comprehensive Drug Abuse and Prevention Act of 1970 to create the Assets Forfeiture Fund, into which the Attorney General was to deposit all net forfeiture proceeds for use by the Department of Justice and other federal law enforcement agencies.

Subsequent amendments dramatically expanded what law enforcement could do with these funds, including allowing their use for expenses such as purchasing vehicles and overtime pay. In short, after the 1984 amendments, federal agencies were able to retain and spend forfeiture proceeds—subject only to very loose restrictions—giving them a direct financial stake in generating forfeiture funds. With these changes, the modern era of policing and prosecuting for profit had begun.

Meanwhile, many states followed the federal government’s profit-making example by amending their civil forfeiture laws to give law enforcement agencies a direct share of forfeited proceeds. Law enforcement agencies in 42 states receive some or all of the civil forfeiture proceeds they seize.

In a 2010 report titled Policing for Profit, the libertarian public interest law firm, the Institute for Justice* (IJ), documents the widespread and abusive manner in which civil asset forfeiture is used by law enforcement agencies. IJ looked at the forfeiture laws in each state, providing an overall grade based on the state’s forfeiture law and the extent of forfeiture use. The findings are stark: “Only three states—Maine, North Dakota and Vermont—receive a combined grade of B or higher. The other 47 states all receive Cs or Ds.” While “[m]ost state civil forfeiture laws provide little protection to property owners. Six states receive an F and 29 states receive a D for their laws alone. Lax federal laws earn the federal government a law grade of D-.”

Moreover, the burden of proof controlling “how much evidence the government must present at trial and how compelling that evidence must be in order to successfully claim property through civil asset forfeiture” for most states is extremely low. The IJ report reveals, “that upwards of 80 percent of forfeitures occur absent a prosecution” because “the standard of proof required to forfeit an individual’s property is lower than the standard required to prove that the individual was guilty of the criminal activity that supposedly justified the forfeiture in the first place” for a “vast majority of states and at the federal level.”

With regards to the Bal Harbour Police Department and the state of Florida, IJ gives Florida a D for their final grade. The standard of proof required by the Florida law is “clear and convincing evidence” that the property forfeited relates to criminal activity. While some states require a lower burden, such as probable cause and preponderance of the evidence, Florida’s burden still falls woefully short of the “beyond a reasonable doubt” standard needed to secure a criminal conviction. Florida law enforcement also “receives 85 percent of the funds generated from civil forfeiture” and took in over $100 million in forfeiture just between the years 2001-2003.

As seen in the example of the Bal Harbour police department, “[t]his expansive use of civil forfeiture has not only benefitted law enforcement institutionally, it has also led to personal gain.”

The abuses of civil asset forfeiture laws, whether in Florida or throughout the nation, is easily explained by public choice. These laws essentially create perverse incentives for police departments to focus on supplementing their typically constrained budgets, allowing for the kind of fancy equipment, technology, vacations, and banquets in the Bal Harbour case. Not to mention police ignoring the kinds of violent crimes that will fail to cede anything of value for seizure and instead focusing on drug crimes, which are far more likely to yield seizable assets — thereby filling department coffers.

The IJ report also lays out some reforms that can go a long way towards reigning in civil asset forfeiture abuse. Some of these include eliminating the profit incentive for police, imposing a higher burden of proof on law enforcement for forfeiture proceedings, and placing the burden of proof on the government rather than making property owners affirmatively prove their innocence.

The Supreme Court has an opportunity to at least slightly ameliorate civil asset forfeiture abuse when they hear the case of Florida v. Harris. The question presented before the court will be whether a positive alert from a drug sniffing dog is sufficient to establish probable cause, allowing police to perform warrantless searches and ultimately seize and keep real and personal property through civil asset forfeiture laws. IJ filed a brief in the case, asserting that the use of drug dogs in this manner usurps fundamental constitutional protections.

Here is a video produced by IJ explaining their brief and theory of the case.

*Disclosure: Brad took part in the 2011 Institute for Justice Law Student Conference.

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