Justice clarifies new limits on asset forfeiture involving local, state police
Holder limits police ability to seize assets
Attorney General Eric Holder is barring local and state police from using federal law to seize cash, cars and other property without evidence that a crime occurred. The Post's Robert O'Harrow Jr. explains the most sweeping check on police power to confiscate personal property since the seizures began three decades ago. (The Washington Post)
By Robert O'Harrow Jr. and Steven Rich February 11
The Justice Department on Tuesday underscored its intention to curb questionable civil seizures by local and state police with new rules that require direct involvement and review by federal authorities before a seizure can be processed under federal law.
The rules, issued as a policy directive, are aimed at clarifying the scope and application of a Jan. 16 order by U.S. Attorney General Eric H. Holder Jr. That order prohibited federal agencies from “adopting” seizures from local and state police into the department’s asset forfeiture program.
Under the department’s Equitable Sharing Program, police can keep up to 80 percent of their seizure proceeds, with the rest going to federal agencies.
A Washington Post investigation last year found that since 2001, police nationwide have seized $2.5 billion in cash from almost 62,000 people — without warrants or indictments — that was forfeited through Equitable Sharing. Thousands of people had to fight long legal battles to get some or all of their money back.
Holder’s announcement last month was hailed as a civil liberties triumph. But some critics complained that “adoptions” accounted for less than 16 percent of the Equitable Sharing seizures in recent years. They also said that the order left open loopholes that would enable federal agencies to continue accepting seizures from local and state police that are labeled as being from drug task forces¬¬ or the result of “joint investigations.”
Tuesday’s directive makes clear that the order will have a broader impact than the simple prohibition of “adoptions” because it also would block an array of seizures — including those labeled as arising from joint investigations — that have no federal involvement until after the fact.
It is unclear exactly how many joint investigation seizures would be prohibited under the new rules. More than 50,000 seizures have been labeled joint investigations since 2008, most of them claimed by the Drug Enforcement Administration.
The Post examined two dozen federal asset forfeiture court cases labeled joint investigations and found that 18 had no apparent federal law enforcement involvement before the seizure.
Tuesday’s directive requires a new level of review by federal authorities before a seizure can be accepted into federal asset forfeiture programs. A lawyer from a federal agency, such as the DEA, will be required to provide written justification for the federal forfeiture. A federal prosecutor also must endorse the seizure before the federal government accepts it. Those provisions will take effect March 1.
“Central to the application of the Attorney General’s order is whether there was federal law enforcement oversight or participation at the time of seizure by state and local law enforcement,” the directive said. “To ensure sufficient federal participation in all seizures that lead to federal forfeiture, an attorney from a federal agency must provide justification in writing for the federal forfeiture of an asset that is seized by a state or local law enforcement officer as a task force or joint investigation seizure.”
The order does not apply to civil seizures by state and local police pursuant to federal seizure warrants.
Members of the House are set to hold hearings Wednesday about planned legislative remedies to further restrict or even abolish federal civil asset forfeiture programs. The House Judiciary subcommittee on crime, terrorism, homeland security and investigations will focus on Equitable Sharing. The House Ways and Means subcommittee on oversight will receive testimony about an Internal Revenue Service program.
Several lawmakers were among those who praised Holder’s order last month even as they questioned whether it went far enough. Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) said the directive addressed loopholes left behind by Holder’s order.
“The Justice Department’s revised guidance expands protections against unnecessary asset seizures and takes an important step toward limiting the Justice Department’s use of adoption and equitable sharing,” Grassley said in a statement Tuesday night. “I appreciate that Attorney General Eric Holder took my concerns about these exceptions seriously, and I will continue to seek legislative fixes¬ to protect small-business owners and innocent motorists.”
The Institute for Justice, a civil libertarian group that specializes in asset forfeiture law, also praised Holder’s order, but said it did not go far enough. The group said the directive was open to interpretation that could lead to abuse.
In his announcement last month, Holder made clear that his order was a first step in a comprehensive review of federal asset forfeiture programs, indicating that other changes¬ may be coming.
The uncertainty about the breadth of the order stemmed in part from the complexity of the regulations and the way the Justice Department classified local and state agency activity. Before the new rules, there were two main ways for local and state authorities to participate in sharing under federal law: adoptions and joint investigations.
The guidelines said that an “adoption occurs when a state or local law enforcement agency seizes property and requests one of the federal seizing agencies to adopt the seizure and proceed with federal forfeiture.”
Joint investigations were broadly defined as those that “may originate from participation on a federal task force or a formal task force comprised of state and local agencies or from state or local investigations that are developed into federal cases.”
Under Holder’s order, one case that was labeled as a joint investigation that would now be prohibited involved Mandrel Stuart of Staunton, Va.
Stuart, a barbecue restaurant owner, was stopped by Fairfax County officers in August 2012 for driving a car with tinted windows and having a video playing in his line of sight. He was detained without charges¬ and ultimately set free, but police seized his money — $17,550 in cash that he said was for equipment and supplies for his restaurant.
The officers involved were with the Fairfax County Police Highway Interdiction Team on Interstate 66. According to police reports, no federal agents were involved in the seizure.
Two weeks after the seizure, a DEA agent filled out a form detailing how Fairfax County police made the seizure. The agent described himself as a DEA task force officer “working with the Fairfax County Police interdiction unit.” He later listed himself as the “Seizing Agent” in court filings.
Stuart had to fight the federal government for a year to get his money back. A jury awarded him legal fees. But he lost his business because he had no working capital.
Robert O’Harrow Jr. is a reporter on the investigative unit of The Washington Post. He writes about law enforcement, national security, federal contracting and the financial world.
Steven Rich is the database editor for investigations at The Washington Post. While at The Post, he’s worked on investigations involving tax liens, civil forfeiture, cartels and government oversight. He was also a member of the reporting team awarded the Pulitzer for NSA revelations.