Three features of civil forfeiture law and five Supreme Court decisions make it easy for police to take money from motorists

One afternoon in August 2012, Mandrel Stuart was driving with his girlfriend into Washington, D.C., when a Fairfax County cop pulled him over on Interstate 66, ostensibly because the windows of his SUV were too dark. Lacking the device necessary to check whether the tinting of the windows exceeded the legal limit, Officer Kevin Palizzi instead cited Stuart for having a video running within his line of sight. While Palizzi was filling out the summons, another officer arrived with a drug-detecting dog. Claiming the dog alerted to the left front bumper and wheel of Stuart’s GMC Yukon, the cops searched the car and found $17,550 in cash, which they kept, assuming that it must be related to the illegal drug trade.

Stuart, who had planned to use that money to buy equipment and supplies for his barbecue restaurant in Staunton, Virginia, was astonished that a routine traffic stop could so easily turn into grand theft. But as Washington Post reporters Michael Sallah, Robert O’Harrow Jr., and Steven Rich explain in a revealing and troubling series of stories that ran last week, taking Stuart’s hard-earned money was perfectly legal, thanks to civil forfeiture laws that turn cops into highway robbers.

“I paid taxes on that money,” Stuart told the Post. “I worked for that money. Why should I give them my money?” Although the financial difficulties that ensued from his encounter with Officer Palizzi forced him to close his restaurant, Stuart ultimately got his money back after challenging the forfeiture in court. Because the government lost the case after a federal trial, it even had to pay Stuart’s legal bills, which totaled nearly $12,000.

Other innocent motorists who lose their cash to cops are not so lucky, finding that the cost of fighting a forfeiture leaves them with a fraction of their money even if they convince the government to return it. Since 2001, the Post reports, some 62,000 cash forfeitures have been pursued under federal law in cases that, like Stuart’s, did not involve search warrants or criminal indictments. Legal expenses help explain why only one-sixth of those forfeitures were challenged. If the cops take a few thousand dollars from you, it makes little sense to spend thousands of dollars to get it back, especially since there is no guarantee of success and your expenses will be reimbursed only if you go to trial and win.

Three key features of civil forfeiture law give cops this license to steal:

The government does not have to charge you with a crime, let alone convict you, to take your property. Under federal law and the laws of many states, a forfeiture is justified if the government can show, by a preponderance of the evidence, that the seized property is connected to a crime, typically a drug offense. That standard, which amounts to any probability greater than 50 percent, is much easier to satisfy than proof beyond a reasonable doubt, the standard for a criminal trial. Some states allow forfeiture based on probable cause, a standard even weaker than preponderance of the evidence.

The burden of proof is on you. Innocent owners like Mandrel Stuart have to prove their innocence, a reversal of the rule in criminal cases. Meanwhile, the government hangs onto the money, which puts financial stress on the owner and makes it harder for him to challenge the forfeiture.

Cops keep the loot. Local cops and prosecutors who pursue forfeiture under federal law, which is what happened in Stuart’s case, receive up to 80 percent of the proceeds. Some states are even more generous, but others give law enforcement agencies a smaller cut, making federal forfeiture under the Justice Department’s Equitable Sharing Program a tempting alternative. The fact that police have a direct financial interest in forfeitures creates an incentive for pretextual traffic stops aimed at finding money or other property to seize. The Post found that “298 departments and 210 task forces have seized the equivalent of 20 percent or more of their annual budgets since 2008.”

The Fifth Amendment Integrity Restoration (FAIR) Act, a billintroduced by Sen. Rand Paul (R-Ky.) in July, addresses each of these issues. The FAIR Act changes the standard of proof in federal forfeiture cases from “preponderance of the evidence” to “clear and convincing evidence.” That change does not go as far as the Institute for Justice, a public interest law firm that has been fighting forfeiture abuse for years, would like. I.J. argues that civil forfeiture should be abolished, meaning that a criminal conviction, based on proof beyond a reasonable doubt, would be required for the government to take property allegedly connected to a crime. But Paul’s reform would make it harder for the government to prevail if a forfeiture case goes to trial, which might deter seizures of large sums in situations where the evidence is weak.

Another provision of the FAIR Act probably would not have much impact on cash forfeitures, but it would help innocent owners of other property. The bill requires the government to prove that the owner of an asset allegedly used to facilitate a crime, such as a car or a home, himself used the property for illegal purposes, consented to that use, or was “willfully blind” to it. Current law puts the burden on innocent owners to show they did not know about the illegal use or “did all that reasonably could be expected under the circumstances to terminate such use.”

The FAIR Act also would abolish the Equitable Sharing Program, which allows police and prosecutors to evade state reforms aimed at reducing forfeiture abuse. Those reforms include channeling forfeiture revenue to functions other than law enforcement, a change designed to eliminate the profit motive that warps police priorities. Similiarly, the FAIR Act would assign federal forfeiture proceeds, which last fiscal year totaled more than $2 billion, to the general fund instead of the Justice Department.

In addition to the statutory provisions that facilitate forfeiture, several Supreme Court decisions have made it easier for cops to take money from motorists:

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