Home equity, vehicles, cash, and even bank accounts in recent years have provided the makings of fights over what the government can – and cannot – do in its various civil forfeiture processes that are established in law.
And clarity is starting to come over those procedures that have been the targets of dozens of lawsuits in recent years because they’ve gotten ahead of the facts, and sometimes governments confiscate properties or assets in situations involving no wrongdoing.
That’s where the Institute for Justice comes in. It is a leading defender of civil forfeiture case victims in the country.
It represents people in court, highlighting the many problems with civil forfeiture, and advocating for the abolition of civil forfeiture in legislatures.
In its most recent case, the Institute has confirmed a decision from the Supreme Court of Indiana has ordered that “the government must prove it is entitled to keep seized property.”
But the ruling wasn’t entirely a success, with the coordinating conclusion that those whose assets are seized cannot use any of those assets to hire a lawyer to defend themselves.
“The practical ramification for many forfeiture victims is that while they can defend against forfeiture of their property in court, they may have to represent themselves,” the Institute explained.
The case at hand was brought against Terry Abbott in 2015. “Abbott initially hired an attorney to represent him in the forfeiture case, but because the government had seized his savings, he could not afford to keep paying his attorney and so was left defending against the action himself,” the Institute reported.
“Mr. Abbott is like many property owners who cannot afford to hire an attorney to fight for their rights,” said Marie Miller, a lawyer for the IJ> “This decision allows forfeiture cases to remain woefully lopsided: the state with all its resources on one side and an unrepresented, oftentimes-impoverished property owner on the other.”
The IJ explained, “Chief Justice Loretta Rush disagreed with the decision and argued that some exceptional circumstances in a civil forfeiture case could require the state to appoint an attorney for the property owner.”
“Anyone who has watched ‘Law & Order’ knows that in criminal court Americans have a right to an attorney, and that if they cannot afford one, the government has to appoint one for them,” explained Miller. “But because civil forfeiture occurs outside the criminal process, it turns Americans’ understanding of the justice system on its head. Property owners are guilty until proven innocent and they have no right to an attorney to fight for their rights.”
Sam Gedge, another IJ lawyer, said, “No person’s property should be forfeited without the government carrying its burden of proof. This decision reaffirms the principle that Hoosiers are due their day in court. At the same time, it effectively denies many of them the help of an attorney.”
In some of the recent cases, government operators have confiscated tens of thousands of dollars in equity an owner held in a home for failing to pay a few hundred dollars in taxes. And they’ve taken a pricey SUV over a minor drug infraction. And there are numerous cases of agents simply confiscating cash from travelers, even when they have documented their purpose for carrying it, such as medical expenses.
IJ also has cases pending against the Drug Enforcement Administration and the Transportation Security Administration over confiscations at airports.
The organization’s campaign has been successful in that several states either have halted their forfeiture programs, or imposed strict limits on what they can do.
These cases are civil disputes, and are separate from any attempt to confiscate property because of criminal activity. Often, in civil disputes, the property is taken simply because of a suspicion.
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