Supreme Court Invites Asset Forfeiture Challenges

Supreme Court Invites Asset Forfeiture Challenges

Justice Thomas Condemns “Egregious and Well-Chronicled Abuses” in Civil Asset Forfeitures

A recent Supreme Court order signals what may be a sea of change in civil forfeiture practices around the country. On March 6, 2017, the Supreme Court denied certiorari or declined to hear, the case of Lisa Olivia Leonard v. Texas, which is expected to be cited in Volume 580 of the U.S. Supreme Court Reporter. Although the denial of certiorari means there will be no relief for the Texas woman who had $201,000 and a bill of sale for a Pennsylvania home forfeited, Justice Clarence Thomas raised serious concerns about the abuses of the asset forfeiture system.

The Underlying Asset Forfeiture Case

During a traffic stop along a known drug corridor, a police officer conducted a search and found a safe in the trunk of a vehicle. Officers obtained a search warrant and discovered the safe contained $201,100 and a bill of sale for a house in Pennsylvania. The State seized the money and bill of sale and sought to forfeit the funds.

A Texas trial court ordered the forfeiture of the money to the local district attorney’s office under the reasoning that the money was either the proceeds of a drug sale (proceeds theory) or intended to be used in such a sale (facilitation theory). Lisa Olivia Leonard, whose son was driving the vehicle with a female passenger that day, asserted that the money was from the sale of a home, not drugs. She appealed to a Texas appellate court and lost. She then requested the U.S. Supreme Court to hear the case on Due Process grounds.

Supreme Court Invites Asset Forfeiture Challenges

Justice Clarence Thomas wrote an opinion which denied the request to be heard, but not on substantive grounds. In fact, Justice Thomas echoed many of the concerns articulated by critics of the expansiveness and over-broadness of civil asset forfeiture practices around the United States.

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“Civil [forfeiture] proceedings often lack certain procedural protections that accompany criminal proceedings, such as the right to a jury trial and a heightened standard of proof,”  Thomas wrote.

Citing an article by the Institute of Justice, Policing for Profit: The Abuse of Civil Asset Forfeiture, Thomas also stated that “forfeiture has in recent decades become widespread and highly profitable.”  The Department of Justice’s Asset Forfeiture Fund took in $4.5 billion in 2014, according to the article.

Asset Forfeiture Abuse

Keeping the criticism within the region where the case arose, the opinion also cited the “well-chronicled abuses” of police activity in Tenaha, Texas, where out-of-town drivers were forced, through a collaboration officers had with the district attorney, to sign over property rights via threats of felony criminal charges.

Other abuses, including a threat of placement of children in foster care, are also cited in the opinion.

The opinion describes how the poor are hit hardest by these practices because that demographic is less likely to use banks and credit cards and more likely to use cash. These practices are more easily susceptible to roadside seizures.

It is also a significant concern that civil asset forfeiture proceedings are complex and necessitate hiring legal counsel, which also marginalizes poor property owners.

The Court makes a significant attack of the in rem nature of civil forfeiture. That is, civil cases are brought against the property itself rather than an actual person. This means that prosecutors can rely on onerous civil discovery practices and a lower standard of proof. It also means that the state or federal government need not actually file criminal charges or bring a criminal case at all when pursuing a forfeiture remedy.

Also striking is that the opinion directly criticizes the 200 years of case law that has allowed the punitive action of asset forfeiture to escape simple concepts of American criminal jurisprudence. “I am skeptical that this historical practice [civil asset forfeiture] is capable of sustaining, as a constitutional matter, the contours of modern practice,” Thomas wrote.

The opinion states that today’s forfeiture practices are far broader than originally intended and that current jurisprudence has ignored the underlying notion that forfeiture is, in fact, punitive. In other words, courts have struggled to determine whether asset forfeitures are criminal versus civil in nature.

The opinion more than hints that a higher standard of proof is appropriate. “This prosecution then is a highly penal one, and the penalty should not be inflicted unless the infractions of the law shall be established beyond a reasonable doubt.” (United States v. Brig Burdett, 9 U.S. 682, 690 (1835).

The Court ends the opinion by lamenting, “Unfortunately, petitioner raises her due process arguments for the first time in this Court. As a result, the Texas Court of Appeals lacked the opportunity to address them in the first instance.” The opinion asserts, in its final statement, that “whether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.”

Coincidentally, the State of Texas is currently looking at substantial reform in this arena. Texas Senator Konni Burton has sponsored legislation that would require an underlying criminal conviction in order for the State to forfeit property,  as well as other measures designed to restrict cases to property meeting a threshold value requirement.

Leonard v. Texas

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Ultimately, individuals who have had property seized by either a state or federal entity need to recognize that this practice is highly profitable, and therefore, subjected to highly trained and organized prosecutions either through state or federal proceedings. These cases are subject to onerous claim deadlines and often involve presentation of financial and document-sourced evidence. Attorneys representing property owners need to be willing to amass, evaluate, and present such evidence to prosecutors, judges, and if necessary, juries.

They also need to also be familiar with claim deadlines and understand how to negotiate properly with prosecutors, or if necessary, present such cases to judges and juries. They also need to understand the underlying property value and the cost of litigation to make practical and ethical recommendations to clients to maximize their recovery.

Steve Jumes recently testified before the Texas Senate Judiciary Committee on whether forfeiture is, or should be, punitive or remedial, as well as the ramifications of civil procedural rules in asset forfeiture cases. He also spoke about asset forfeiture during a September webcast sponsored by the State Bar of Texas. For further discussion regarding the in rem nature of civil asset forfeiture, the size of the Department of Justice’s Asset Forfeiture Fund, the dangers of the lower standard of proof, and the dilution of the presumption of innocence via circumstantial evidence, visit our Asset Forfeiture Defense page.


Benson Varghese

Managing Partner at Varghese Summersett PLLC
Benson Varghese is the founder and Managing Partner of Varghese Summersett PLLC. He is a prolific writer and has authored hundreds of articles about criminal law in Texas and at the Federal level. His articles have been featured in the Wall Street Journal, Above the Law, and have been selected as Top Blogs by the State Bar of Texas. He was named the Young Lawyer of the Year in 2019 by the Tarrant County Bar Association. Benson led the firm to become one of the 500 fastest growing businesses in the United States by Inc 500 Magazine in 2018. In the same year, the firm was named the Best Law Firm in Fort Worth by the Fort Worth Star-Telegram. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.
Benson Varghese