Commentary

01.27.15

An End to Highway Robbery? Not Quite Yet

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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fourth Amendment, U.S. Constitution

It’s one of the most highly praised constitutional rights in the world. In reality, however, the Fourth Amendment has been severely diluted. A good example is related to seizure of assets—cash and property like vehicles and real estate—without warrants or criminal charges.

Inequitable Justice

Until a recent change in policy, law enforcement has literally been engaged in highway robbery under a U.S. Department of Justice (DOJ) program called Equitable Sharing, which allowed state and local law enforcement agencies to seize assets from those they suspected of drug activity. Once the assets were taken, the state or local law enforcement agency turned them over to the federal Drug Enforcement Agency (DEA), which federalized the seizure.

Read about the U.S. Attorney General’s order.

People who have never been convicted or even charged with a crime have been subject to these seizures. Once the assets were taken, the state or local law enforcement agency would receive 80 percent of the proceeds back from the DEA.

One of the most troubling aspects of this government-sanctioned theft is that anyone who had had their assets taken were then required to prove their possessions were legally acquired in order to get them back. Don’t forget that assets were taken without warrants or criminal charges.

In September 2014, The Washington Post published “Stop and Seize,” a series of articles detailing the investigation into cash seizures of motorists under Equitable Sharing.

Using DOJ data, The Post’s investigation found that since 2008:

» $3 billion in assets have been seized under asset forfeiture.

» Only a sixth of seizures were legally challenged due to the cost of legal action against the government.

Additionally, The Post found that the money sent to local law enforcement in Ohio for seizures totaled approximately $13 million.

Holder Rolls Back Seizure Policy

On January 16, 2015, U.S. Attorney General Eric Holder placed limits on some of this madness by barring local and state police from using federal authority to take assets without warrants or criminal convictions.

The new policy is welcomed because it prohibits some of the incentives that promote racial profiling, violation of property rights, as well as constitutional rights. However, this reform does not go far enough. It will not impact seizures through joint taskforces or state forfeiture laws that also motivate seizures.

In order for people to feel “secure” from unreasonable searches and seizures, state and federal laws must change.

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