On The Front Lines

Asset Forfeiture Scheme Empowers Cops to Seize and Keep Cars, Cash & Homes Even When Owners Are Not Charged With a Crime

WASHINGTON, DC — The Rutherford Institute is pushing back against a modern-day form of highway robbery which empowers police to seize and keep private property (cash, jewelry, cars, homes and other valuables) they “suspect” may be connected to a crime.

Weighing in before the U.S. Supreme Court in Culley v. Marshall, Rutherford Institute attorneys are challenging the government’s use of delaying tactics in asset forfeiture proceedings which make it difficult for individuals innocent of any wrongdoing to timely recover their property—especially cars and cash—seized by police.

“Asset forfeiture is the government’s new, twisted form of guilt by association. Only it’s not the citizenry being accused of wrongdoing, just their money,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “What this adds up to is a paradigm in which Americans no longer have to be guilty to be stripped of their property, rights and liberties. All you have to be is in possession of something the government wants.”

Civil asset forfeiture is a practice where government agents (usually the police) seize private property they “suspect” may be connected to criminal activity, then whether or not any crime is actually proven to have taken place, the government keeps the citizen’s property, often divvying it up with the local police who did the initial seizure. Relying on the topsy-turvy legal theory that one’s property can not only be guilty of a crime but is guilty until proven innocent, government agencies have eagerly cashed in on this revenue scheme, often under the pretext of the War on Drugs. By asserting that someone’s property, a building or a large of amount of cash for example, is tied to an illegal activity, the government—usually, the police—then confiscates the property for its own uses, and it’s up to the property owner to jump through a series of legal hoops to prove that the property was not connected to criminal activity or that the owner had no involvement or knowledge of the criminal activity. But challenging these “takings” in court can cost the owner more than the value of the confiscated property itself.

Many of these asset forfeiture cases involve no criminal charge against the property owner. For example, in February 2019, Alabama police seized vehicles belonging to Halima Culley and Lena Sutton while the cars were being used by other individuals accused of drug possession. Although Culley and Sutton were themselves innocent of any wrongdoing, the state seized their vehicles and filed civil asset forfeiture actions to take ownership. Although the courts finally found Culley and Sutton innocent and entitled to the return of their vehicles, they were deprived of the use of their vehicles for 20 months and 12 months respectively. In filing suit against the state, Culley and Sutton claimed a violation of their due process rights under the Fourteenth Amendment because they were not provided with a prompt hearing for the opportunity to keep possession of their vehicles pending trial. Both the district court and the Eleventh Circuit Court of Appeals dismissed the lawsuits. In filing an amicus brief with the Supreme Court in Culley v. Marshall, Rutherford Institute attorneys argue that the government’s practice of delaying forfeiture hearings for over a year violates due process rights and leverages severe hardships against innocent owners, often forcing them to give up and settle with the government so they can recover some of their property.

Gregory J. DuBoff, Francis J. Aul, and Timothy J. Whittle of McGuireWoods LLP advanced the arguments in Culley v. Marshall.

The Rutherford Institute, a nonprofit civil liberties organization, defends individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.