Anecdotes of civil forfeiture abuse in Texas abound. The most egregious example from recent years probably comes from the tiny East Texas town of Tenaha (population 1,160), where the district attorney and local police teamed up to shake down innocent out-of-town motorists for cash and other valuables worth millions. Near the border, cops were wont to focus enforcement efforts on catching the large amounts of cash headed back to Mexico, all the while more or less ignoring the drugs and weapons flowing the other way; inevitably, innocents were caught up in the dragnet. In 2012, Fort Worth cops kept or attempted to keep 15 cars, trucks, and SUVs seized from TCU students and others involved in a university-centered marijuana ring.
But the real danger of the practice, which allows cops to take possession of ill-gotten gains by filing a lawsuit against it (e.g. State of Texas vs. Three Thousand Three Hundred Twenty-Two Dollars in United States Currency), is not in the flagrant abuses but the insidious way it subverts due process and other protections built into the criminal justice system. The property owner in a civil forfeiture case -- in contrast to a defendant in a criminal case -- has no right to an attorney; he can hire one, but it will be costly and may not be worth it, since the legal bill will often exceed the value of the seized property. There is also no presumption of innocence. It's up to the property owner to prove that his stuff isn't tainted by illegal activity, rather than the state's burden to prove that it is.
Dallas County offers a prime example of how heavily this stacks the deck against property owners, even when officials are following the letter of the law. In 2014, the Dallas County District Attorney's office filed 357 forfeiture cases seeking to keep property valued at about $2 million total. It was an average year. According to state records, law enforcement agencies in Dallas County have seized between about $1.8 million and $2.3 million in property through civil forfeiture in each of the past five years. These cases are initiated by local police departments and typically involve a few thousand bucks in cash taken from a suspected drug dealer, though sometimes it's cars or other property, and it occasionally involves other crimes:
The county isn't required to keep data on how many of the property owners are charged with or convicted of the crime their property is being taken for, but court records help flesh out the stories. In two-thirds of the cases, property owners don't contest the seizure of their property -- perhaps because they've already written the property off as lost, perhaps because they lack the legal sophistication to fight it, perhaps because they lack the time and money it would take to get it back, and perhaps because they're guilty.
Those who do contest are typically the ones with enough money to hire a private defense attorney to handle their criminal case. In the majority of those instances, the attorneys agree to take up a parallel forfeiture case in exchange for a cut (50 percent is common) of the property returned, though some clients wind up giving it all to the attorney to cover legal bills.
In a few rare cases, lawyers are able to get all the seized property returned. A woman from Longview was reunited with her $10,059 in cash after Balch Springs police took it last May on the grounds that her car smelled like marijuana. In the absence of any actual evidence, Charlie Humphries, her Garland-based attorney, was able to win a summary judgment and get the money back.
More often, the attorneys strike a deal with the DA's office, relying on the fact that the hundreds of forfeiture cases filed each year in Dallas County are handled by a single attorney, Dale Jensen, who lacks the resources to take even a fraction of them to trial. Defense attorneys say he's typically willing to negotiate a deal, returning half (sometimes more, sometimes less) to the property owner while keeping half for the state.
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Only two of the hundreds of cases filed in 2014 went to trial; prosecutors won both. Two-thirds wound up in default judgments or an equivalent outcome -- i.e. the prosecutor wins the case because the property owner doesn't contest the case. Eighteen cases were dismissed for want of prosecution, generally meaning that cops have to give the property back because the DA's office missed a court hearing, and one suit was dropped. Aside from the Longview woman's case, the rest ended in a deal between the DA's office and the property owner:
In a lot of these cases, the outcome appears fair enough: That $2,000 stack of cash cops found next to the shoebox full of marijuana/duffel bag of cocaine/bucket of meth probably came from selling illegal drugs. But the facts aren't always so clear cut. What about the guy Dallas cops pulled over last May and arrested for misdemeanor marijuana possession? (Correction: the original article stated he had only two marijuana roaches; police say he actually had seven grams.) They took his $11,000 -- proceeds from selling a car, he told them. He was one of the rare ones who fought it. And he won, too, but only after hiring a lawyer and spending six months fighting in court, six months of legal fees and lost time and mounting stress, all for an innocent man trying to prove he wasn't guilty.
Send your story tips to the author, Eric Nicholson.