Civil Forfeiture: Florida’s Embarrassing Failure to Protect Property Rights | Justin Pearson F loridians consider property rights to be sacrosanct. Indeed, our state constitution extends further than most by expressly declaring the rights to “acquire, possess and protect property” as basic and inalienable. 1 Unfortunately, our actions over the last three decades in one specific area have not lived up to this promise. is area is civil forfeiture. Unlike criminal forfeiture, where the government keeps property aſter the owner is convicted of a crime, civil forfeiture allows law enforcement to transfer ownership of cash, cars, and other property to the government without ever charging or convicting anyone of any crime at all. 2 Worse still, Florida’s laws allow the law enforcement 24 | The Journal, Winter 2016
Floridians consider property rights to be sacrosanct. Indeed, our state constitution extends further than
most by expressly declaring the rights to “acquire, possess and protect property” as basic and inalienable.1 Unfortunately, our actions over the last three decades in one specific area have not lived up to this promise.
This area is civil forfeiture. Unlike criminal forfeiture, where the government keeps property after the owner is convicted of a crime, civil forfeiture allows law enforcement to transfer ownership of cash, cars, and other property to the government without ever charging or convicting anyone of any crime at all.2 Worse still, Florida’s laws allow the law enforcement
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agency that seizes property to keep or sell it, incentivizing this abuse of power.3 Once the property is seized, the innocent owner is faced with the Hobbesian choice of deciding whether to pay a private attorney to pursue lengthy and expensive civil proceedings in the hope of possibly, eventually, regaining a portion of the innocent owner’s own property.4 Civil forfeiture is so repulsive to our values that it has created an unusual coalition of opponents spanning the political spectrum. These groups include The James Madison Institute (JMI), the Institute for Justice (IJ), The Heritage Foundation,5 the American Civil Liberties Union (ACLU),6 the American Legislative Exchange Council (ALEC),7 the Center for American Progress,8 FreedomWorks,9 the National Federation of Independent Business (NFIB),10 the Justice Fellowship,11 and the American Conservative Union Foundation.12 Yet, many Florida legislators continue to ignore all of them. But it does not need to be this way. Over a dozen states have reformed their civil forfeiture laws over the past few years, with many more in the process of doing so, and four states now require a criminal conviction before any of your property can be forfeited.13 It is not too late for Florida to do the same and regain its rightful place amongst those states where property rights are respected.
The Rise of Civil ForfeitureCivil forfeiture began as something relatively innocuous. Throughout most of U.S. history, civil forfeiture was primarily used to enforce duties and excise taxes.14 But this all changed during the 1980s, as law enforcement agencies around the nation began to realize that they could supplement their resources by pursuing civil forfeiture instead of pursuing criminals.15 It was not long before 49 states, including Florida, passed civil forfeiture laws at the behest of law enforcement groups eager to supplement their budgets.16 The lone exception was North Carolina, and for
good reason. The North Carolina Constitution requires all seized funds to be appropriated to public schools, thereby removing the profit incentive from law enforcement agencies in the Tar Heel State to lobby for the enactment
of civil forfeiture laws.17 Florida’s current civil forfeiture law suffers from many of the same defects once found elsewhere. Although the Florida Statutes include some procedural protections that can be used by property owners willing to pay an attorney to litigate the issue, the statutes fail to address the core problem.18 This problem is the profit incentive, which gives law enforcement a reason to seize as much property and cash as possible and then force the property owner to pay a lawyer to try to get their property back.19 Considering that the majority of seizures involve amounts of less than $1,000, far below the cost to
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“Florida’s laws allow the law enforcement
agency that seizes property to keep or
sell it, incentivizing this abuse of power.”
www.jamesmadison.org | 25
litigate the issue, it is not surprising that most innocent owners accept offers to quickly settle rather than spend years in court.20 Although this may turn a quick profit for the seizing agency, the harm done to the public’s faith in law enforcement is irreparable.21 Scandals EnsueThe financial incentive given to law enforcement to search for money rather than fight crime quickly led to gross improprieties. One well-publicized example took place during the 1990s in Volusia County, Florida.22 The Volusia County Sheriff recognized that drugs entered the county on one side of I-95, with the proceeds returning in the other direction.23 Rather than attempt to stop the drugs, which the Sheriff obviously could not sell or apply to his budget, the Sheriff instead focused his resources on trying to intercept the money going back out.24 The Sheriff specifically targeted minorities, and the only evidence required for seizure was the mere fact that the driver had any cash in their possession.25 Documentation proving the legitimacy of the money was irrelevant, as discovered by Navy reservist Bobby Jones, who provided pay stubs for his $3,989, but watched in horror as his money was seized anyway.26 More than 75 percent of Volusia County’s seizures resulted in zero arrests.27 Public outrage over this story and others led to some modest reforms of Florida law over a decade ago.28 Unfortunately, Florida’s reforms did not address the perverse financial incentives causing the abusive practices.29 Consequently, Florida continues to generate a steady stream of
outrageous stories garnering national scorn.30 It is probably no surprise then that Florida’s civil forfeiture laws received the grade of “D+” in the Institute for Justice’s March 2010, Policing for Profit report grading the protections of property rights in all 50 states.31 Since that time, no reforms have been enacted in Tallahassee. Meaningful reform has been proposed, but the Florida Legislature has consistently failed to pass it.32 Consequently, every day, and in every corner of the Sunshine State, innocent Floridians are forced to negotiate for the return of a small percentage of their own wrongfully-seized property rather than pursue lengthy and expensive legal proceedings that would cost more in attorneys’ fees than the property is worth. It is therefore not surprising that Florida’s civil forfeiture laws received a grade of “D+” yet again in the November 2015, Policing for Profit report.33
Serious Reform in Other StatesOther states have worked to address the problem. New Mexico,34 Minnesota,35 Montana,36 Nevada,37 and Washington, D.C.38 have joined North Carolina by either banning civil forfeiture or requiring a criminal conviction as a prerequisite for all forfeitures.39 Many more, including Indiana,40 Maine,41 Maryland,42 Missouri,43 North Dakota,44 and Vermont,45 have laws removing the perverse profit incentive by ordering that civil forfeiture proceeds be deposited into a general fund instead of used by the seizing agency. Others still, like Georgia46 and Utah,47 have passed
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reporting requirements with an eye toward further reform in the future. Any of these approaches would be an improvement for Florida.
Another Legislative Session Provides Renewed Opportunity for ReformThe 2016 Florida Legislative Session will undoubtedly include more bills proposing meaningful civil forfeiture reform. Florida would be well served to abolish civil forfeiture altogether and replace it with criminal forfeiture like the reform signed into law in April by Governor Susana Martinez (R-New Mexico). At the very least, the profit incentive must be removed by requiring all civil forfeiture proceeds to be deposited into a general fund. As long as Florida law continues to incentivize law enforcement to seize, sell, and keep the property of innocent citizens instead of fighting crime, Florida’s platitudes to property rights will continue to ring hollow.
Justin Pearson is the Florida Office Managing Attorney at the Institute for Justice. The Institute for Justice is the national law firm for liberty and provides pro bono representation for innocent victims of civil forfeiture around the nation.
Endnotes1. Fla. Const. art. I § 2.2. See Fla. Stat. §§ 932.703(2)(a), 932.704; Nick Sibilla,
Florida Cops Made Millions Dealing Cocaine: The Latest Asset Forfeiture Outrage, Forbes (Oct. 30, 2013), http://www.forbes.com/sites/instituteforjustice/2013/10/30/florida-cops-made-millions-dealing-cocaine-the-latest-asset-forfeiture-outrage/.
3. See id.; see also Jason Pye, Florida, Maryland are the Latest States Looking to Protect Property Through Civil Asset Forfeiture Reform, FreedomWorks Blog (April 10, 2015), http://www.freedomworks.org/content/florida-maryland-are-latest-states-looking-protect-property-through-civil-
asset-forfeiture; Andrew Kloster, Florida Taking the Lead on Civil Asset Forfeiture Reform, The Daily Signal (April 8, 2015), http://dailysignal.com/2015/04/08/florida-taking-the-lead-on-civil-asset-forfeiture-reform/.
4. See Fla. Stat. § 932.704.5. Jason Snead, A Dysfunctional Civil-Forfeiture System
Seizes Savings, Destroys Lives, Washington Times (June 22, 2015), http://www.washingtontimes.com/news/2015/jun/22/jason-snead-a-dysfunctional-civil-forfeiture-syste/?page=all.
6. Fix Forfeiture Partners on the Need to Protect Due Process, FixForfeiture.org (2015), http://www.fixforfeiture.org/fix-forfeiture-partners-on-the-need-to-protect-due-process/; ACLU Letter to Senate Judiciary Committee (April 15, 2015), https://www.aclu.org/sites/default/files/field_document/4-15_aclu_lettter_for_sjc_forfeiture_hearing.pdf.
7. American Legislative Exchange Council, Asset Forfeiture Process and Private Property Protection Act (Approved by ALEC Board of Directors January, 2012), http://www.alec.org/model-legislation/asset-forfeiture-process-and-private-property-protection-act/.
8. ACLU, Fix Forfeiture Partners on the Need to Protect Due Process, http://www.fixforfeiture.org/fix-forfeiture-partners-on-the-need-to-protect-due-process/.
9. Jason Pye, Yes, Civil Asset Forfeiture Denies Innocent People of Their Right to Due Process, FreedomWorks Blog (August 4, 2015), http://www.freedomworks.org/content/yes-civil-asset-forfeiture-denies-innocent-people-their-right-due-process; Fix Forfeiture Partners on the Need to Protect Due Process, FixForfeiture.org (2015), http://www.fixforfeiture.org/fix-forfeiture-partners-on-the-need-to-protect-due-process/.
10. NFIB, Small Business Applauds House Action on Civil Forfeiture Reforms (June 8, 2015), http://www.nfib.com/article/small-business-applauds-house-action-on-civil-forfeiture-reforms-69666/.
12. The ACU Foundation, Asset Forfeiture (June 9, 2015), http://acufoundation.conservative.org/center-for-criminal-justice-reform/asset-forfeiture/.
13. See, e.g., Shaila Dewan, New Mexico: Governor Signs Bill on Civil Forfeiture, New York Times (April 10, 2015), http://www.nytimes.com/2015/04/11/us/new-mexico-governor-signs-bill-on-civil-forfeiture.html.
14. DAVID B. SMITH, PROSECUTION AND DEFENSE OF FORFEITURE CASES, VOL. 1 § 1.01 (June 2015).
15. See id.16. See id.; see also Jon Guze, Good News on Civil Asset
17. Jon Guze, Good News on Civil Asset Forfeiture, Carolina Journal (Jan. 27, 2015), http://www.carolinajournal.com/daily_journal/display.html?id=11736. It should be noted that civil forfeitures using federal law are still allowed in North Carolina.
18. See Williams, et al., Policing for Profit: The Abuse of Civil Asset Forfeiture (1st ed.), Institute for Justice (March 2010), http://www.ij.org/asset-forfeiture-report-florida.
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19. See Fla. Stat. §§ 932.702; 932.703; 932.704.20. Nick Sibilla, After Cops Seized and Kept Cash, Washington,
D.C. Settles Almost Million-Dollar Forfeiture Class Action, Forbes (Sep. 12, 2014), http://www.forbes.com/sites/instituteforjustice/2014/09/12/after-cops-seized-and-kept-cash-washington-d-c-settles-almost-million-dollar-civil-forfeiture-class-action/.
21. Jordan Richardson, Advocates Tell Congress: Reform Civil Asset Forfeiture Now, The Daily Signal (April 17, 2015), http://dailysignal.com/2015/04/17/advocates-tell-congress-reform-civil-asset-forfeiture-now/.
22. Jeff Brazil and Steve Berry, Tainted Cash or Easy Money? Orlando Sentinel (June 14, 1992), http://articles.orlandosentinel.com/1992-06-14/news/9206131060_1_seizures-kea-drug-squad; Bruce Benson, Highway Robbery: Police Have Incentives to Commit Legalized Highway Robbery, Foundation for Economic Education (July 1, 1993), http://fee.org/freeman/highway-robbery/.
23. See id.24. See id.25. See id.26. See id.27. See id.28. See Williams, et al., Policing for Profit: The Abuse of Civil
Asset Forfeiture (1st ed.), Institute for Justice (March 2010), http://www.ij.org/pfp-state-pages/pfp-Florida/; Fla. Stat. §§ 932.703, 932.704.
29. See id.30. See, e.g., Fred Grimm, Who Knows? Maybe My Dog Ate
the Bal Harbour Police Department Receipts, Miami Herald (June 19, 2015), http://www.miamiherald.com/news/local/news-columns-blogs/fred-grimm/article25020571.html; Nick Sibilla, Florida Cops Laundered Millions for Drug Cartels, Failed to Make a Single Arrest, Forbes (July 10, 2015), http://www.forbes.com/sites/instituteforjustice/2015/07/10/florida-cops-laundered-millions-for-drug-cartels-failed-to-make-a-single-arrest/; Megan O’Matz and John Maines, Cops. Cash. Cocaine. How Sunrise Police Made Millions Selling Drugs, Sun-Sentinel (Sept. 29, 2014), http://www.sun-sentinel.com/news/interactive/sfl-cops-cash-cocaine-htmlstory.html; Curt Anderson, Tiny Bal Harbour Police Department’s Huge Cash Haul Mirrors Ballooning Government Forfeiture Program, Huffington Post (May 10, 2013), http://www.huffingtonpost.com/2013/05/10/bal-harbour-police-forfeiture-cash-program_n_3253208.html; Ari Odzer, Bal Harbour Police Must Return $4 Million in Forfeited Assets: Department of Justice, NBC Miami (Oct. 31, 2012), http://www.nbcmiami.com/news/local/Bal-Harbour-Police-Must-Return-4-Million-in-Forfeited-Assets-Department-of-Justice-176680721.html; Brady Dennis, Tampa Brass Drive Snazzy Seized Vehicles, St. Petersburg Times (August 5, 2003), http://www.sptimes.com/2003/08/05/Tampabay/Top_brass_drive_snazz.shtml. Some of these scandals also involved federal forfeiture laws, which is why it is important for Florida to follow New Mexico’s lead by barring state and local authorities from circumventing
state property rights protections.31. See Williams, et al., supra note 18. 32. Amy Marinec, Senator Files Bill After 10 Investigates Policing
for Profit, ABC News Tampa Bay (Feb. 26, 2015), http://www.wtsp.com/story/news/investigations/2015/02/26/senator-files-bill-after-10-investigates-policing-for-profit/24077091/; Mitch Perry, Jeff Brandes Files Bill to Amend Civil Forfeiture Law in Florida, https://www.flsenate.gov/Session/Bill/2015/1534, SaintPetersBlog (Feb. 26, 2015), http://www.saintpetersblog.com/archives/182969.
33. Carpenter, et al., Policing for Profit: The Abuse of Civil Asset Forfeiture (2nd ed.), Institute for Justice (November 2015), http://www.ij.org/pfp-state-pages/pfp-Florida/.
34. Nick Sibilla, Civil Forfeiture Now Requires a Criminal Conviction in Montana and New Mexico, Forbes (July 2, 2015), http://www.forbes.com/sites/instituteforjustice/2015/07/02/civil-forfeiture-now-requires-a-criminal-conviction-in-montana-and-new-mexico/. Importantly, New Mexico’s new law also prohibits the (currently suspended) ruse known as “equitable sharing,” whereby state or local authorities circumvent state property rights by teaming with federal authorities to pursue civil forfeitures in federal court and then split the proceeds. See id.
35. Nick Sibilla, Minnesota Now Requires a Criminal Conviction Before People Can Lose Their Property to Forfeiture, Forbes (May 7, 2014), http://www.forbes.com/sites/instituteforjustice/2014/05/07/minnesota-forfeiture-reform/.
38. B20-48, 20th Council (D.C. 2014); See also Robert O’Harrow, Jr., D.C. Council Votes to Overhaul Asset Forfeiture, Give Property Owners New Rights, WASH. POST, Nov. 18, 2014, http://www.washingtonpost.com/investigations/dc-council-votes-to-overhaul-asset-forfeiture-give-property-owners-new-rights/2014/11/18/d6945400-6f72-11e4-8808-afaa1e3a33ef_story.html; Link to bill: http://lims.dccouncil.us/Download/29204/B20-0048-CommitteeReport1.pdf.
39. See Carpenter, et al., supra note 33.40. See Carpenter, et al., supra note 33.41. See id.42. See id.43. See id. 44. See id.45. See id.46. Jason Pye, Georgia’s New Civil Asset Forfeiture Law Does
Not Go Far Enough, Peach Pundit (June 10, 2015), http://www.peachpundit.com/2015/06/10/georgias-new-civil-asset-forfeiture-law-does-not-go-far-enough/.
