Is It Constitutional? Civil Asset Forfeiture

According to classic, liberal philosophy, governments exist for one reason and one reason only: to protect us and our private property from each other. That means that if government violates its citizenry’s property, it has violated the very reason for its existence. Locke put it this way, “Whenever legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience.”

The more I unpack and unravel civil asset forfeiture, the more I’ve come to realize that this is an area of Constitutional politics that needs far more attention than it’s currently being given. Civil asset forfeiture mocks America’s claim to liberty and avoidance of arbitrary power. Civil asset forfeiture destroys all pretense of respect for private property and limited government tasked with protecting that private propriety.

Remember, we create government to protect us and our private property from each other and we create the Constitution to propect us and our private property from government. Civil asset forfeiture is the method by which government has arbitrarily given themselves a way to violate American citizen’s private property, while still claiming that its power to do so is both legitimate and Constitutional.

“No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Amendment V

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Amendment VIII

Civil asset forfeiture started during the prohibition era, which should come as no surprise since most of the unconstitutional drug laws and agencies got their start during this era as well. However, civil asset forfeiture really kicked into gear during the 80s when the “War on Drugs” was in full swing.

"In response to increased concerns about the bustling drug trade and other criminal activity, Congress enacted the Comprehensive Crime Control Act of 1984. Title III of the law consisted of the Comprehensive Forfeiture Act of 1984, which amended the Racketeer Influence and Corrupt Organizations Statute (RICO) to clarify what constitutes forfeitable property, and create a rebuttable presumption of forfeitability. In other words, the government could seize first, and defend the forfeiture in court later. The Act also established the Equitable Sharing Program which allows the government to liquidate seized assets and retain the proceeds." Cornell Law 

The Supreme Court proceeded to uphold civil asset forfeiture in multiple Supreme Court cases, refusing to give any clear limitation to the power.

Proponents of civil asset forfeiture claim that it has been essential in taking down national drug syndicates and other major drug operations (again, based upon the assumption that the federal government has the power to declare drugs illegal), and yet, the “median forfeiture averaged $1,276 across the 21 states where usable data was obtainable. In most of those states, half of cash seizures fell below $1,000. In Michigan, for example, half of all civil forfeitures of currency were worth less than $423, and in Pennsylvania, that median value was $369.” (Propublica.org) In other words, while the “ideal justification” is that this power is being used to take down massive drug cartels, the reality is anything but this. Instead, average American citizens are being stripped of their private property under the pretense of “protecting from criminal drug syndicates”.

Essentially, civil asset forfeiture is a way for law enforcement to seize any property they believe to be connected to some “crime”. The burden of proof is usually preponderance (although this varies across states, even though the federal government has been very fond of superseding stringent state laws in favor of civil asset forfeiture). Preponderance is the assumption that something is more likely true than not. If it crosses the 50% likelihood line, it has been the requirement of preponderance. In other words, the burden of proof does not lie in the hands of government, innocent until proven guilty, when it comes to the “guilt” of property. Instead, the government can simply decide that property is guilty, seize it and the citizen is left with the burden of “proving” the property’s innocence. This is something that few citizens have the resources to do and usually, the cost of reclaiming government seized property would require far more money than what was lost.

Arbitrary power is cruel and unforgiving. Civil asset forfeiture has no grounding in the Constitution at all and is therefore egregiously arbitrary. Perhaps it has been used for “good” on occasion, but arbitrary power cannot be justified by its occasional use for good. Why? Because, it’s arbitrary. Therefore, more times than not, when in the hands of humans in power, it will be abused and is being abused in horrifying way across the country. Law enforcement agencies look to gain at times, 80-100% of the profits from their seizures. Therefore, they have every incentive to seize property and since there is no real oversight of this power, it is truly limitless and citizens have no recourse.

Watch this video for a specific example:

Civil asset forfeiture is government sanctioned theft and should be treated as such. It has no grounding in the Constitution and is one of the most blatant violations of American private property I have ever discovered. It must be stopped and law enforcement must be held accountable for their use of it and further, must fight to protect the citizenry from it.

Otherwise, liberty and the sanctity of private property in the U.S., protected by the Constitution, is truly just a myth…subject to the complete and arbitrary whim of those in power. If this is allowed my friends, what isn’t?

The Liberty Belle