by Kevin Bliss
Florida is still one of the most prolific practitioners of civil asset forfeiture in the United States, seizing $47.8 million in the 2018-2019 fiscal year despite the 2016 reformations setting higher standards necessary to prevail in a successful forfeiture.
Civil rights activists have complained that police departments abuse civil forfeiture laws more for profit than use for any legal means of criminal punishment or deterrence. Property and cash are seized with the most tenuous claim of being involved in a crime. Once police have possession, it is virtually impossible for owners to regain their property. Making matters worse, no arrest is even necessary for civil forfeitures.
Civil forfeiture has been criticized as a discriminatory practice used against the poor who lack the means to hire an attorney to fight for the return of their property, and without the assistance of an attorney, the chances of recovering property are exceptionally slim. A large percentage of forfeitures result from traffic violations or involve property under $2,500 in value. An alarming percentage of seized property is never recovered because the owners can’t afford the expense required.
The Institute for Justice (“IJ”) reported in 2018 that Florida took in more revenue from civil forfeiture than any other state. The more stringent rules passed by the Legislature were easily circumvented through the equitable sharing program with the U.S. Department of Justice (“DOJ”), allowing Florida to retain up to 80% of the seized property value. Moreover, little to no oversight has permitted police departments to spend these proceeds however they choose.
In 2016, the Florida Legislature passed a series of new forfeiture laws, raising the standard of proof to beyond a reasonable doubt, requiring an arrest before any property (except cash) may be seized, charging police departments a $1,000 filing fee to initiate seizure procedures, award a $1,500 bond and $2,000 in attorneys’ fees to citizens who win their property back, and adopt new transparency laws to oversee forfeitures and profits. The state now has the highest average dollar value for forfeitures at $4,500. The new laws have been effective in deterring seizures of smaller amounts.
However, critics contend that Florida law enforcement has simply turned to the DOJ’s equitable sharing program more often now than previously. “What we’re finding now is because of the hurdles we’ve placed in state law that requires at least an arrest, they’re now utilizing federal law more,” stated State Senator Jeff Brandes (R-St. Petersburg), sponsor of the 2016 bill. “It’s jurisdiction-shopping.”
Many forfeiture cases are settled out of court. In the 2018-2019 Florida Department of Law Enforcement asset forfeiture report, the state initiated 4,479 civil asset forfeiture cases. Of those cases, nearly one-third were settled without a hearing. This resolution allows police to keep a portion of the asset value for no other reason than the person cannot afford attorneys’ fees or the two years need to purse retrieval of their property. “It’s just a shakedown,” said Justin Pearson, managing attorney for the IJ Florida office. “Most people can’t afford to wait two years to get part of their money back, because they have bills to pay. So they take the deal, and I can tell you, they would never trust law enforcement again.”
The IJ conducts annual surveys of state and asset forfeiture proceedings and grades them according to standards appropriate to criminal prosecution and civil liberties. In its recent survey, Florida received a “C,” a slight improvement over 2015’s grade of “D+,” but IJ says it is not enough.
IJ recommends ceasing all civil forfeiture entirely. If not a complete cessation, at least make all proceeds payable to non-law enforcement funds and stop all use of the federal equitable sharing program to deter abuse.
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