Justice Department Suspends Controversial DEA Civil Asset Forfeiture Program
Last month it was announced that the Department of Justice was shutting down the DEA’s controversial practice of targeting airline passengers for “consensual encounters” at airports, in which agents would ask for permission to search an individual’s belongings and then potentially confiscate their property via an asset forfeiture. In a memo to the Deputy General and the DEA administrator, the Inspector General outlined the concerns that, “The DEA was not complying with its own policy on consensual encounters conducted at mass transportation facilities, resulting in personnel creating potentially significant operational and legal risks.” Civil asset forfeiture allows federal agencies such as the DEA to seize cash and other property suspected of being involved in a crime, even if criminal charges are never filed against the owner. Once seized under this relatively low standard, it is then the individual’s responsibility to prove that the asset seized is not connected to any illegal activity via a potentially lengthy legal process. The report highlighted some troubling incidents carried out under this program which necessitated the drastic action by the DOJ. In one instance after a passenger denied consent to a DEA Task Force Officer to search their bag, the Officer nonetheless detained their bag and reported that a drug-detection dog alerted his handler that the bag was a “hit” for contraband. The passenger then consented to a search, in which no contraband was discovered, but it forced the passenger to miss their original flight, causing unnecessary hardship on the passenger. In another instance, it was uncovered that an employee of a commercial airline would alert the DEA Task Force Group whenever someone bought a ticket within 48 hours of the travel, a perfectly legal practice, and the DEA would then investigate that person and share any proceeds with this employee that were seized as a result of the tip, ultimately paying the employee thousands of dollars over the past several years. As a result of these and other abuses, the DEA is no longer allowed to continue this program and going forward all “consensual encounters” by the DEA at airports must be connected to either an ongoing, predicate investigation or be approved by the DEA Administrator in exigent circumstances. To be determined is what effect, if any, this will have on the Department of Homeland security, Customs and Border Protection.
Bipartisan Effort to Reform Federal Civil Forfeiture Underway
Earlier this month Senators Rand Paul and Cory Booker introduced the Fifth Amendment Integrity Restoration Act (“FAIR”) which seeks to reform federal civil forfeiture laws. “The government should never have the power to seize a person’s property without due process. Yet, under current civil asset forfeiture laws, Americans are being stripped of their property without ever being charged or convicted of a crime. The FAIR Act directly addresses these injustices and is a critical step toward restoring fairness and accountability, protecting property owners’ rights, and curbing the weaponization of civil forfeiture laws once and for all,” said Dr. Paul in announcing the bill. His co-sponsor, Senator Booker concurred and said in a statement, “Reforming federal civil asset forfeiture is long overdue and the FAIR Act will ensure due process and protect the public from unfair deprivations and forfeiture abuses.” Under the proposed legislation, the federal government would eliminate the practice of “equitable” sharing, in which state and local law enforcement agencies receive up to 80% of proceeds that they turn over to federal officials for forfeiture (sometimes because state laws make it more difficult to seize assets than at the federal level). Likewise, agencies would no longer directly receive portions of the assets seized, instead all proceeds from legitimate seizures would go the Treasury’s General Fund. The bill would elevate the standard for seizing property to a “clear and convincing” standard instead of the preponderance standard used today, along with several other safeguards such as allowing courts more leeway to appoint representation for indigent individuals. A previous version of the bill passed the House Judiciary Committee 26-0 with some comments that were incorporated into this iteration of the bill, signaling broad bipartisan support for the need to reform civil asset forfeiture. Hopefully this is a sign of real change coming soon to this burdensome and invasive law enforcement practice. Still, as it currently stands, the system can be difficult to navigate and for individuals to prove their innocence when they have had assets seized by law enforcement. There are strict deadlines and procedures that anyone should be aware of if they have been the subject of an asset seizure, so anyone in that position should consult an experienced asset forfeiture attorney who can fight for the return of any assets.