Legal Theft: How Florida’s Civil Asset Forfeiture Laws Corrupt Law Enforcement
Erica Karpf
Civil asset forfeiture occurs when the government, or a law enforcement agency, seizes and potentially transfers the ownership of real or personal property that an individual used or attempted to use in a criminal activity pursuant to statutory authorization.[1] It seeks to eliminate the motivation to engage in criminal activity by taking the economic profit out of the crime, but in actuality it promotes corrupt policing practices[2] Civil asset forfeiture laws are premised on the theory that property itself can be guilty of a crime.[3] This legal fiction is that the vehicle is the offender, thus eliminating the need for conviction.[4] Civil forfeiture operates to replace criminal forfeiture as an “easy and convenient means of divesting private citizens of property.”[5]
The United States has long recognized the importance of property rights. The Fourteenth and Fifth Amendments’ Due Process Clauses forbid any state from depriving any person of life, liberty, or property without due process of the law. Civil forfeiture is so offensive to modern society’s values. In just a three-and-a-half-year time period, a police force in Bal Harbour, Florida—comprised of just twenty-seven officers—confiscated $19.3 million.[6] In the year 2010 alone, the Bal Harbour police force amassed $8.2 million stemming from twenty-three cases, all of which were outside of Florida, and none of which featured even one arrest.[7] Troublingly, this is not an uncommon theme; 80% of property owners who have their property seized are never charged with a crime.[8]
The Florida Contraband Forfeiture Act (“FCFA”) expands safeguards for property owners in some instances, while at the same time, diminishing rights in others.[9] Under the FCFA, seizures do not require a criminal conviction. It is an atrocity that the government is able to take away an individual’s property just by presenting the most-minute amount of evidence to establish a sufficient nexus between the contraband. Many states have recognized how egregious their civil forfeiture laws were and have thus implemented change to their laws. Some states require a criminal conviction, some require proof beyond a reasonable doubt, some require both, and some require neither. Just one year ago, Florida started to see the light as to how assaultive its civil forfeiture laws were and made an extreme modification to the FCFA. It now provides property owners with one of the strongest forms of protection by requiring the government establish proof beyond reasonable doubt before seizing property.[10] Although criminals should not be allowed to keep the proceeds of their crime, innocent Americans should also not lose their right to due process or their private property rights in order to make that happen.[11] Civil forfeiture is a growing epidemic and although Florida enacted some change to the FCFA, it still lacks sufficient safeguards for property owners. This note will begin by explaining civil forfeiture generally, and more specifically Florida’s laws. It will then discuss what changes are needed by comparing and contrasting the laws enacted in other states. Ultimately, this note will recommend amendments to Florida’s laws with the goal of ensuring due process for all.
[1]. See OPPAGA Report No. 15-10, Civil Asset Forfeiture in Florida: Policies and Practices 1 (2015); Brittany Brooks, Note, Misunderstanding Civil Forfeiture: Addressing Misconceptions About Civil Forfeiture with a Focus on the Florida Contraband Forfeiture Act, 69 U. Miami L. Rev. 320, 326 (2014).
[2]. See Brooks, supra note 1, at 324; Sarah Stillman, Taken, New Yorker, Aug. 12, 2013, http://www.newyorker.com/magazine/2013/08/12/taken; Brad Schlesinger, Perverse Abuse of Civil Asset Forfeiture Laws in Florida, Indep. Voter Network (Oct. 31, 2012), https://ivn.us/2012/10/31/floridas-bal-harbour-police-department-epitomizes-the-perverse-nature-of-civil-asset-forfeiture-laws/.
[4]. See Leonard D. Pertnoy, Civil Asset Forfeiture: Analyzing Florida Procedure Regarding Law Enforcement's Shadiest Procedure, 39 Am. J. Trial Advoc. 271, 278 (2015); Alexandra D. Rogin, Note, Dollars for Collars: Civil Asset Forfeiture and the Breakdown of Constitutional Rights, 7 Drexel L. Rev. Online 45, 52 (2015).
