The Takeaway: Texas' Lax Civil Forfeiture Laws Make It Easy for Cops to Take Your Stuff
Yiliana Perez was midway through her shift at the Southwestern Women's Surgery Center when her boyfriend showed up. It was a surprise visit. He had dropped her off at the Greenville Avenue abortion clinic, where she works as a medical assistant, at 6:45 that morning, and he wasn't scheduled to pick her up until mid-afternoon. Yet, just before noon, here he was hurrying into the lobby, saying they needed to talk.
She took him into the employee break room and closed the door. He had "got into some stuff," he told her, but before he could explain exactly what, they were interrupted by a Dallas police officer who had walked into the clinic just behind him.
Perez didn't piece together the details until later. A half hour before, she learned, plainclothes Dallas police officers monitoring a parking lot in downtown Dallas had watched her boyfriend, Eliberto Deavila, and his friend remove a tailgate from a parked pickup, slide it into the bed of her 2005 Chevrolet Silverado and drive away. The undercover cops called in some colleagues in a marked squad car, who pulled behind Deavila as he drove north on Routh Street, passing under Woodall Rodgers Freeway toward Uptown. Deavila pulled into the parking lot of a Shell gas station on McKinney Avenue. The officers turned on their lights and siren, and he slowed as if to stop. Instead of stopping, though, Deavila made a break for it.
The squad car gave up the chase. Not knowing where else to go, Deavila headed north toward Perez's clinic, making a brief detour to stow the stolen tailgate in some bushes along an alley in a nearby subdivision. He was unaware as he walked into the clinic that undercover police had tailed him throughout the 10-mile journey.
At the time, Perez knew only that Deavila had done something dumb. It was hardly a surprise. Deavila had been arrested a couple of times during their relationship for car burglary. But his penchant for minor property crime aside, she knew Deavila as a decent man and loving father, to the younger kids the couple had together, and to the two he'd driven to school that morning, who were from Perez's prior relationship.
Still, whatever Deavila had done this time, it was serious enough that he'd led some very angry cops to her place of business.
"The first officer, he was so mean to me, yelling at me," Perez recalls. "I told him, 'This is my job. Can you calm down? This is my job. Can you just talk to me, tell me what's going on?'
"And he calmed down and then he's like, 'Well, we need the truck.'"
Perez needed the truck too. She had purchased the Silverado a few months before for $7,500. It was the family's only vehicle, how she got to work every day, how she got the kids to school. That morning, she, Deavila and her two older sons, 14-year-old Mark and 7-year-old Max, had piled in for the family's daily commute: a half hour from their home in Pleasant Grove to drop Perez at the Greenville Avenue clinic, then another 15 minutes to Harmony Science Academy, the North Dallas charter school her sons attend. Deavila would return with the truck in the afternoon to repeat the trek in reverse.
Without the truck, Perez would have no way to get home, but the officer was insistent about taking it. He told her she could either hand over the keys, which he said would allow them to tow it without causing damage, or they would tow it anyway and Perez could take her chances. Reluctantly, Perez gave him the keys. It was a Friday; worst-case scenario, she'd be able to retrieve the truck from the auto pound by the following week.
Perez and the kids caught a ride home with one of her supervisors from the clinic. She went to Dallas PD's auto pound in West Dallas over the weekend with the truck's title, proof of insurance and money to pay the towing fees. But she was told by an attendant that there was a hold on the truck, and that she wouldn't be driving it anywhere until the hold was lifted. She asked if she could at least fetch the family's stuff from inside — the kids' car seats, paperwork, tools, her son Max's Batman blanket — but the attendant said no.
"They're like, 'Sorry, can't do anything. The DA has a hold on it,'" she says. "And then I called [the district attorney's office], and I'm like, 'Can you please help me out. It's my car, not his. I just let him use it because he had to take the kids to school. I didn't know he was going to do that crime.'"
Still, the answer was no.
"I was devastated," Perez says. "I was crying."
That was 13 months ago. Deavila pleaded guilty to evading arrest and felony theft and was sentenced to three years in prison. He was paroled in February after serving a year and has returned home. The truck, by contrast, is still incarcerated in the impound lot, still on hold, still filled with car seats and a Batman blanket. And if Dallas police and prosecutors get their way, Perez will never get it back.
Perez has not been charged in the tailgate theft, and has never been arrested. She's gainfully employed. Her house in Pleasant Grove, a few blocks west of Mesquite, is impeccably neat, as is the parakeet cage in her living room. She wants her kids to get a good education and be successful, which is why she sends Mark and Max to a charter school near her work — she doesn't trust the schools in her neighborhood.
None of that matters when it comes to getting her truck back. Last April, two months after the truck was impounded, Perez was served notice that Dallas police and the Dallas County District Attorney's office was pursuing the vehicle through a civil forfeiture proceeding. To legally take the title to the truck, prosecutors would need only to prove that Perez "knew or should have known" that Deavila was going to use her truck to commit a felony.
Prosecutors point out that Deavila had been arrested twice in the three months leading up to the tailgate theft on suspicion of car burglary, both times while driving Perez's Silverado. As evidence, they quote her reaction upon learning that Deavila was being arrested again, this time in front of her coworkers: "This is the third time he's done this, and I'm tired of bonding him out."
Most of this Perez doesn't dispute. She was aware he kept getting arrested while driving her truck, and she was tired of bonding him out. But he is the father of her children and, for better or worse, they were in a committed, long-term relationship. Besides, there was no one else available to take the kids to school. Perez's only other option would have been to take the kids to the abortion clinic, have them sit in the car for 45 minutes, and then slip away at 7:30 a.m. to take them to school. She didn't let him use her truck to help him steal stuff. She let him use the truck because she didn't have a decent alternative.
And even if police can prove that Perez "should have known" that her boyfriend was going to steal a truck tailgate, she wonders why that gives them the power to take away her family's sole means of transportation — particularly since Deavila, the person who committed the crime, has already been punished.
Deavila also thinks it's draconian to take the truck. "When you sit in jail, you get to know people," he says. "I met a lot of people who did a lot worse things than I have and got their truck back the same day or a couple of months later."
Yet taking stuff from non-criminals through civil forfeiture — and taking stuff for relatively minor offenses — is a well-established part of American jurisprudence.
The practice can be traced back to colonial times, when it was primarily used as a tool for combatting piracy and enforcing customs laws. It didn't assume its modern form until the 1980s, when Congress and state legislators were churning out tough-on-crime policies at a furious pace. Texas' modern civil forfeiture law, passed in 1989, was sold as a necessary and versatile weapon in the war on drugs, one that would not only make the drug trade less profitable but that would also, through a bit of criminal justice jiu-jitsu, force bad guys to pick up the tab for police work.
It's a neat-sounding theory that hasn't been so tidy in practice. It's funded police-work well enough: Texas law enforcement agencies seized nearly $30 million in assets under civil forfeiture in 2013 alone, money that police and prosecutors can use to supplement their budgets, not counting millions more funneled to local cops through the "equitable sharing" of federal forfeiture proceeds. But it's also created a civil liberties nightmare by incentivizing cops to focus on high-dollar targets rather than more pressing but less lucrative threats to public safety, and by establishing what amounts to a bizarro, Third World-esque parallel to the regular criminal justice system.
The trappings of due process are familiar to anyone who's ever watched a procedural drama: the right to an attorney, the presumption of innocence, the right to a fair trial. Civil forfeiture sidesteps these protections by bringing legal actions against inanimate objects. (Perez's case is styled State of Texas vs. One 2005 Chevrolet Pickup.) The property owner doesn't have to be convicted, or even accused, of a crime to have his stuff taken. If he wants it back, it's up to him to prove that it was wrongfully seized, which requires a time-consuming legal battle against the government, often for property whose value is dwarfed by the resulting legal fees.
The Institute for Justice, a Virginia-based nonprofit that pushes for criminal justice reform, gives Texas a D- on civil forfeiture, tied for the worst of any state. Texas law, in other words, makes it relatively easy for police to take possession of property and relatively difficult for the property owner to get it back, a dynamic that lends itself to abuse.
The most egregious example in recent years came from the tiny East Texas town of Tenaha, where local cops and prosecutors teamed up to shake down out-of-town motorists, often for no other reason than they were driving down the highway with cash or other valuables in their cars. In South Texas, cops working drug trafficking routes have been wont to focus their enforcement efforts almost exclusively on southbound traffic, letting drugs and weapons flow north unimpeded while intercepting cash flowing in the opposite direction.
Derek Cohen, a policy analyst at the Texas Public Policy Foundation, says cases of glaring, coordinated abuse, like what happened in Tenaha, are rare. But he also thinks it's rare to find cops and prosecutors using forfeiture purely to promote public safety, given that it offers an easy way to pad their budgets. "It's somewhere between good people reacting to bad incentives and the Sheriff of Nottingham shaking you down," Cohen says.
Between 2009 and 2014, police in Dallas County seized $13.6 million through civil forfeiture, or $2.3 million per year, which places it in the middle of the pack as far as Texas' large urban counties go. It's more than is seized by police annually in Bexar and Travis counties ($1.2 million and $852,000, respectively), on par with Tarrant and El Paso counties ($2.6 million per year and $2.2 million, respectively) and completely dwarfed by Harris County ($12 million).
All of the cases in Dallas County flow through assistant district attorney Dale Jensen, who has been the only lawyer in the DA's office assigned to civil forfeiture since his colleague retired in December 2013. Jensen, and the defense attorneys he sometimes faces off with, says he's selective about the cases he files.
When police make a seizure, the seizing officer fills out an affidavit detailing why they suspect the property is tied to criminal activity, and that gets passed along to Jensen. Jensen reviews the facts of the case. "[If] I think I could at least make a good faith argument that this is probably contraband [under Texas' forfeiture law]," he says, he and a paralegal type up a lawsuit and file it in state district court. Occasionally he rejects cases he deems too thin. A hypothetical example of a case Jensen says he would likely reject: Cops come to him with $10,000 taken from a guy stopped on the sidewalk. He seemed suspicious and refused to say where he got the money, but they didn't find any other evidence of a crime.
Still, examples abound of police pushing the limits of the state's forfeiture laws, and of people being quietly screwed over by the system.
Last May, Balch Springs police seized $10,059 from a Longview couple they pulled over on I-20. The cops justified the seizure by saying the car, and an empty duffel bag inside of it, reeked of marijuana. A judge ordered their money returned after ruling that the phantom weed odor wasn't sufficient to justify the seizure, but only after the couple had hired a lawyer to fight the case.
The same month, Dallas police seized $11,753 from a 30-year-old Dallas man who'd been arrested for misdemeanor marijuana possession. Even under Texas' expansive forfeiture laws, weed possession can't trigger forfeiture, but police took the cash because they suspected he'd earned it dealing drugs. The man "said the money was from the sale of a car, but there was no documentation to support that," Jensen wrote in the lawsuit. The DA's office eventually agreed to drop the forfeiture suit and the man got his money back, but it took six months and a good lawyer.
Jensen won't address specific cases, but he says that sometimes a property owner will present evidence after a forfeiture case has been filed that convinces him a seizure wasn't justified. "A lot of times the information the police have on the scene is incomplete, through no fault of theirs or the defendant's," Jensen says. "Somebody has some marijuana with them and some quantity of money. It might be a reasonable [assumption] that it's drug money, but if some months later they can bring in some reasonable documentation that they sold their car that day or got a [tax refund]," Jensen will drop the forfeiture case.
Even when a seizure is legally justified, however, there can be a puzzling disparity between the alleged crime and the property seized. The vast majority of local forfeiture cases involve suspected drug dealing, but Texas law allows police to take property for a wide range of crimes, all the way down to petty theft and littering, if the scofflaw is a repeat offender.
John Werthing is a 57-year-old former Marine with a history of stealing beer from convenience stores. His crimes are almost laughably low-key: On one visit to a QuikTrip in Hutchins, he was on his third trip between the store's beer cooler and his truck before a clerk finally noticed and asked if he was going to pay for the three 18-packs of Coors Light he was carrying. "No," he replied, without breaking stride. When Hutchins police caught up with him after a nearly identical beer theft, they arrested him and seized his truck.
For police, there is little downside to pursuing property through civil forfeiture, even if the link to criminal activity is tenuous. Best case scenario, the property owner won't bother claiming it and the department and prosecutors will reap a small windfall. Worst case, a court will decide they overreached and make them give the property back.
In Glenn Heights, a tiny municipality just south of Dallas, police are currently fighting to keep a 2012 Chevrolet Colorado pickup (Kelley Blue Book value: $20,000) they seized from a 58-year-old woman charged with possessing .3 grams of meth (street value: about $20).
"We take a pretty aggressive stance when it comes to illegal drugs," explains Glenn Heights Police Chief Phillip Prasifka. But Prasifka says the department doesn't make a habit of taking property from small-fry drug-possession suspects. They are pursuing the Chevrolet Colorado, he says, because the arresting officer observed evidence that there had been additional meth in the vehicle and what Prasifka describes as the woman's "extensive prior history."
"That [.3 grams] was the amount recovered," Prasifka says. "It appears there was a lot on the seat, on the floors, [that] I can only assume [she] was trying to throw out the window."
Prasifka declined to detail the woman's criminal history, but Dallas County court records show that she was accused of dealing drugs in 1999 and of meth possession in 2011. In the former case, the charge was dropped; in the latter, a grand jury declined to indict her. Her only convictions in Dallas County are for decades-old misdemeanors: writing hot checks in 1985 and driving with a suspended license in 1997.
State Representative David Simpson, a Republican from Longview, has filed a bill to abolish civil forfeiture.
With her truck impounded, Perez struggled to find a way to get around. For a time she used her nephew's car. He'd left it behind in Dallas when he enrolled for his freshman year at Baylor University, but that was only a stopgap; within a few weeks, he was back for an extended visit and needed his car. Perez was left to beg friends and family for rides until she could cobble together enough money for another car.
She wound up with a decade-old Ford Focus. Where the Silverado had been reliable, with a cab large enough to comfortably seat the family, the Focus is cramped and beset by mechanical issues. Mark and Max hate it — they now have to spend 45 minutes at the abortion clinic every morning, waiting for Perez to get a break from work so she can take them to school. But the Focus runs well enough to get them around and it was cheap: about $1,000, including what Perez spent installing a new transmission. It would serve until she could get the truck back.
At the time, she still thought that was possible. She only needed to talk to the right person and prove that the truck belonged to her, a law-abiding citizen, and not her jailed boyfriend. She couldn't afford to hire an attorney, so she fought the seizure as best she could. Upon learning of the forfeiture case, she headed downtown to the George Allen Courthouse and filed an answer that makes up in pathos what it lacks in legal formatting:
"My name is Yiliana Perez. I am the owner of the 2005 Chevrolet Pick Up truck. I really need my vehicle. I have 4 children and two of them go to school. I also work full time. It's really hard for us right now especially due to the transportation. Thank you for your time."
The fact that Perez took steps to reclaim her property makes her case an outlier. Of 358 forfeiture cases filed in Dallas County in 2014, court records show that fewer than a third were contested by the property owner. Police and prosecutors almost always get to keep the property by default.
This is a feature of the system, not a bug. The median value of property pursued through civil forfeiture proceedings in Dallas County last year was $2,600. Two-thirds of the cases involve property valued at less than $5,000, and more than 40 percent concern $2,000 or less — likely less than the cost of hiring an attorney to fight the case. Most of the time, forfeiture cases simply aren't worth fighting. The exception is when the property owner is also charged with a crime, and has the means to hire a private defense attorney to handle their criminal case.
Charlie Humphries, a Garland defense attorney, represented the Longview couple in their fight against Balch Springs. That case was an outlier, he says. The couple wasn't charged with a crime, and they sought out Humphries just for help with the forfeiture case. The other half-dozen clients Humphries represented in forfeiture cases last year were criminal clients, he says, and he agreed to fight the seizure of their property in exchange for a cut of the property they get back, typically 50 percent. Timothy Jeffrey, a Dallas defense attorney who frequently takes forfeiture cases, has a similar policy. Often, clients will let him keep the entire amount of the returned property as a way to cover legal costs in their criminal case.
Even in contested cases, there is little effort to adjudicate whether a seizure is justified. Only two cases from 2014 went to a trial where both sides presented evidence. Almost all the remaining cases ended with Jensen and opposing lawyers striking a deal and agreeing to divvy up the seized property. Often this leads to judgments that seem as peculiar as their case names. In State of Texas vs. 12 Gold Coins, for instance, eight of 12 gold coins police found on a shelf near several dozen marijuana plants were deemed contraband and forfeited to Dallas police. The rest were presumed to be the product of honest work and returned to their owner.
It's easier for both sides that way, Humphries says. The defense attorney and his client get some money back without the cost and time investment of a protracted court battle. And Jensen, whom Humphries describes as "just inundated," gets to keep his sanity. "If every lawyer on every case filed a request for production [and aggressively defended the case], there's absolutely no way they can handle that."
Jensen says criminal prosecutors in the DA's office are similarly burdened. He considers a variety of factors when deciding whether and how to settle cases: the strength of the evidence, how many other cases he's handling, what court the case is assigned to. "I do this all the time, so I kind of have an idea of particular courts [that] are probably more or less open to forfeiture [than] others," he says. The "fundamental factor of settling cases," however, is "how anxious is everybody to get their money." Most of the time, both Jensen and the property owner would rather strike a deal and get some of the property in question than fight for months in the uncertain hope of getting all of it.
This keeps the local civil forfeiture apparatus functioning smoothly, but it puts people like Perez at a disadvantage. She has no legal training. Unlike attorneys like Humphries and Jeffrey, she doesn't have an established relationship with Jensen and doesn't know how to work the system. And she's a mother of four with a full-time job. Between the demands of work and family, just navigating the court system is a struggle. Her case was initially set to go to trial in October, but someone from the court called her the day before to tell her that it had been postponed. She was told she would get a call once a new trial had been set, but four and a half months passed with no word. Her case, it seems, had temporarily been lost in the shuffle. Shortly after the Dallas Observer called the court in early March to inquire about the case, the trial was reset.
There's a chance Texas' civil forfeiture laws will look very different when state lawmakers leave Austin in June. Civil liberties concerns and prominent cases of forfeiture abuse have inspired bipartisan scorn, and both Democrats and Republicans have filed measures aimed at curbing forfeiture. The weakest would strengthen anemic reporting requirements, requiring law enforcement agencies to itemize seizures and indicate whether they are tied to criminal charges. Currently, the annual report they must file with the attorney general lists only the aggregate amount of property seized.
One bill would make prosecutors prove that a seizure was justified rather than put the onus on the property owner to prove that it wasn't. This probably wouldn't change the outcome of most cases, but it would at least force prosecutors to present evidence rather than allow them to win cases by default because the property owner didn't fight the seizure. Other proposals would raise the burden of proof from a preponderance of evidence — the standard used to assign fault in car-crash cases — to clear and convincing, which Child Protective Services must reach before taking someone's kids.
The most radical proposal comes from State Representative David Simpson, a libertarian-minded Republican from Longview who recently suggested legalizing marijuana because "God did not make a mistake when he made marijuana." He would like to do away with civil forfeiture entirely. Police could still seize property, but only after a criminal conviction.
"We're playing games when you have the State of Texas against $1,343 in cash," Simpson says. "Cash is not responsible; people are responsible. Human beings are responsible. What we're doing is, we're bypassing convicting them of a crime."
Simpson's proposal doesn't have a huge shot at passing. "I think that's ambitious," says Cohen, the Texas Public Policy Foundation analyst. But he expects something to pass, even though there will likely be pushback from the state's politically powerful district attorneys, many of whom obtain a large share of their funding through civil forfeiture. "The groundswell is just so huge," Cohen says.
The groundswell has come too late to help Perez, whose case is set for April 20. She realizes she's legally overmatched and has recently reached out to a local attorney who helped an acquaintance win back a seized truck. She's currently trying to set up a free consultation. "That's what we're looking into: seeing what they say [about getting the truck back] and seeing what they charge."
Meanwhile, Perez is praying her Ford Focus can survive for at least another month.
"That car's going to give out on me any time," she says. "I really need that truck back."