June 28, 2021

Asset Forfeiture - Legalized Theft

The aggressive and violent behavior of law enforcement toward citizens has gripped the nation’s consciousness...

Asset Forfeiture - Legalized Theft

Asset Forfeiture - Legalized Theft

In recent times, the aggressive and violent behavior of law enforcement toward citizens has gripped the nation’s consciousness. While specific instances of police brutality often make media headlines, there’s another, less discussed, method of punishment that law enforcement routinely utilizes — civil asset forfeiture. Simply put, civil asset forfeiture is the legal process through which law enforcement seizes property that is believed to be connected to a crime. Items suspected to be contraband are essentially up for grabs as law enforcement agencies have low burdens to meet in showing that certain property is contraband. As a result, the business of confiscating citizen property is booming. In fact, according to the Institute for Justice, Texas consistently leads other states in the amount of revenue generated by asset forfeiture. In 2017 alone, Texas law enforcement agencies confiscated a total of approximately $50 million dollars in forfeited goods and cash from individuals.

Law enforcement incentives to arrest and detain are not a new phenomenon. Slave patrols, widely considered the earliest form of law enforcement in the United States, were typically formed through certain inducements, such as fines or tax abatements. However, direct takings of individual property did not become common until the late 1970’s and 1980’s, largely in conjunction with Nixon’s "War on Drugs.” The Department of Justice has provided the following rationale for the continued use of asset forfeiture:

Forfeiture removes the tools of crime from criminal organizations, deprives wrongdoers of the proceeds of their crimes, recovers property that may be used to compensate victims, and deters crime.

While the Department of Justice is unsurprisingly silent in explaining why law enforcement is entitled to profit from criminal enterprise, the idea is that by forfeiting the tools and proceeds of the drug trade, including cash, bank accounts, cars, and boats, incentives to manufacture and distribute drugs would decrease and society would see accompanying reductions in drug usage. Almost 50 years later, the opioid crisis is ravaging middle America, states and citizens are increasingly supportive of marijuana decriminalization, and recreational use of prescription medication is the topic of countless pop and hip-hop melodies. But while the “war” may have been lost, the battle for the right to one's property is still initiated by law enforcement on unsuspecting citizens on a daily basis.

Contraband, as defined under the Texas Code of Criminal Procedure, consists of anything of value that law enforcement can liquidate in return for cash; it includes real estate, personal property, and both tangible and intangible property — essentially anything that has value. In Texas, no conviction is required prior to the State initiating a forfeiture proceeding. Practically speaking, this means that your property can be taken from you upon mere suspicion that it was in some way involved in a criminal activity. Specifically, the State must prove that it’s more likely than not that the contraband in question was used in the commission of a criminal act. Keep in mind that this civil legal standard is much easier to prove than the more stringent “beyond a reasonable doubt” standard. Further conflating the matter is the use of a civil legal standard despite the forfeiture action emanating from a criminal detention or arrest. Texas’s civil asset forfeiture law essentially turns the Constitutional principal of "innocent until proven guilty" on its head and places the onus on property owners to prove that their property was not involved in the alleged crime. Further, because the right to an attorney is not guaranteed during civil as is the case in criminal proceedings, many individuals forfeit their property simply by being either unaware of how to prepare their own legal defense or unable to afford legal representation.

For many this feels like legalized theft.

To show how this taking often unfolds, consider the case of Timothy Knoeppel.

1992 Chevrolet PK, VIN 1GCEC14Z4NE164549, Appellant v. The STATE of Texas, Appellee
On August 18, 2012, Timothy Knoeppel was involved in a motor vehicle accident. San Antonio Police Officer James Caviness witnessed Knoeppel drive the pickup truck from the accident scene and park the vehicle nearby at an apartment complex. Officer Caviness observed signs of intoxication from Knoeppel and arrested Knoeppel for driving while intoxicated (“DWI”). A blood draw determined that Knoeppel’s blood alcohol concentration was 0.14 grams of alcohol per deciliter, higher than the legal limit of .08 grams of alcohol per deciliter. Due to prior offenses, Knoeppel was charged with felony DWI.
Only six days after being charged, and prior to conviction, the State initiated an asset forfeiture proceeding on Knoeppel’s pickup truck. The proceeding was initiated under Chapter 59 of the Texas Code of Criminal Procedure which authorizes the forfeiture of contraband, which is used or intended to be used in the commission of certain felonies, or proceeds derived from those felonies.
The Court of Appeal’s analysis included sworn affidavits of the officers who investigated the scene, Knoeppel’s confession, and TDPS Investigation and the San Antonio Police Department crash report. Based on this evidence and the fact that Knoeppel was seen driving the vehicle, the appeals court determined that there was a sufficient connection between the property and the criminal conduct and that Knoeppel must forfeit the vehicle.

Knoeppel’s vehicle was likely liquidated at an auction and the proceeds were placed back into the law enforcement budget after the federal government obtained its split through equitable sharing. Knoeppel, who likely pled guilty or no contest to the underlying DWI charge and was subsequently punished accordingly, likely either through some combination of additional jail time, fines, or probation, also had to suffer the additional penalty of the forfeiture of his vehicle. Very rarely is an individual’s driver's license suspended in such circumstances and Knoeppel could not be prevented from the purchase of another vehicle. Thus, the forfeiture of Mr. Knoeppel’s vehicle serves no purpose other than to add funds to already inflated police budgets and excessively punish. And while double jeopardy is prohibited under the 5th Amendment, forfeiture proceedings do not qualify as “punishment” under the double jeopardy clause because forfeiture proceedings affect property, not individuals.

Rather than allowing law enforcement in Texas and throughout the nation to continue to fund purchases of vehicles, weapons, and uniforms through profiting from alleged criminality, the more beneficial disposition of confiscated contraband is to reinvest the proceeds of the contraband back into economically deprived communities within the county where the arrest was made. Communities stand to benefit through an influx of additional capital while law enforcement may gain additional favor and trust within the communities they patrol. Millions of dollars stand to be rerouted from already extremely well-funded law enforcement budgets to job-training programs, scholarships, health-nutrition programs, or even to legal aid programs who might provide increased assistance to low-income individuals for matters such as this.