Legislators Working to Challenge Civil Asset Forfeiture Laws

Jul 6, 2016

Police agencies in Virginia get most of their money from local governments. But in recent years, they’ve been increasingly tapping another source of cash - seizing it directly from people they suspect of wrongdoing. The program, known as civil asset forfeiture, has become increasingly controversial in recent years. And now, efforts are moving forward at the state and national level to reform the program.

Credit Steven Depolo / Creative Commons

Back in November 2011, a Virginia State Police trooper pulled over a car on Interstate 95 near Emporia. The trooper said the car was speeding. After realizing that the two men in the car were from El Salvador, he decided to search the car. That’s when he found $27,000 in cash.

“He didn’t think that these two Hispanic guys from Salvador ought to have so much money in their car and he thought it was a good forfeiture case."

That’s David Smith, who later became the lawyer for the passenger in the car, Victror Guzman. Smith says it wasn’t a good forfeiture case at all because these men were taking money from their church to Atlanta, where it was going to be used to buy property for the church back in El Salvador. The trooper didn’t believe it.

“He also had some documents from the church, which he tried to show the trooper and basically this was a very arrogant trooper. He didn’t really want to hear what their explanation was. As soon as he saw the money he had decided he was going to seize it."

Seizing cash and property has become increasingly profitable for local governments, which get to keep the money they don’t have to return. In Guzman’s case, the money was eventually returned to the church, but only after he retained an attorney and fought it for months in the court.

“I have never understood how these civil asset forfeitures have stood up.”

That’s Virginia legal expert Rich Kelsey. 

“It’s a troubling phenomenon, and my guess is the more public attention it gets the more sense of outrage you are going to find.”

Over the last decade, law enforcement officials in Virginia have seized more than $200 million in cash and assets. Some of that money goes directly into the budget of the local police or prosecutor’s office. Some of it goes to the federal government, which shares part of it with local governments. Some of it is returned because it should have never been taken in the first place.

“If I were a prosecutor’s office, I certainly understand why you would want to be able to seize those dollars without anyone having a right to say otherwise on the spot."

Lynchburg Commonwealth’s Attorney Mike Doucette says money that’s seized through the state program must be approved by a judge.

"If we can convince a judge that there’s a clear and convincing nexus between the asset to be forfeited and drug distribution activity, then and only then does the judge sign it. We don’t seize anything without judicial approval."

But critics say law enforcement officials should be required to secure a conviction before they get to keep anything they’ve seized. Democratic State Senator Chap Petersen offered a bill that would have done just that earlier this year.

“We have an opportunity to take a stand and say it’s not right to take somebody’s property when they have been acquitted in the underlying crime."

That effort failed on a 24 to 16 vote. All the Republicans voted for it, and three Democrats from Northern Virginia joined in the opposition. Republican Sen. Bill Carrico of Galax says Petersen’s bill would be too expensive.

“If a large amount money is seized, then who’s going to account for the interest if it’s given back?"

Instead of requiring a conviction, Carrico introduced a successful bill that changes the burden of proof. Starting next month, the burden of proof will be clear and convincing evidence rather than a preponderance of the evidence. A similar effort is now moving forward in Congress, where Congressman Bobby Scott of Newport News is a co-sponsor. 

“Some of these confiscations take place without even any - not only no conviction no charge. They just take your property. And that’s just not right."