Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without evidence that a crime occurred.
Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.
Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing.
The program has enabled local and state police to make seizures and then have them “adopted” by federal agencies, which share in the proceeds. The program allowed police departments and drug task forces to keep up to 80 percent of the proceeds of the adopted seizures, with the rest going to federal agencies.
“With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” Holder said in a statement.
Holder’s decision allows some limited exceptions, including illegal firearms, ammunition, explosives and property associated with child pornography, a small fraction of the total. This would eliminate virtually all cash and vehicle seizures made by local and state police from the program.
While police can continue to make seizures under their own state laws — Texas has had a forfeiture law since 1989 — the federal program was easy to use and required most of the proceeds from the seizures to go to local and state police departments. Many states require seized proceeds to go into the general fund.
A Justice official, who spoke on the condition of anonymity in order to discuss the attorney general’s motivation, said Holder “also believes that the new policy will eliminate any possibility that the adoption process might unintentionally incentivize unnecessary stops and seizures.”
Holder’s decision follows a Washington Post investigation published in September that found that nationwide, police have made cash seizures worth almost $2.5 billion from motorists and others without search warrants or indictments since the terrorist attacks of Sept. 11, 2001.
The Post found that local and state police routinely pulled over drivers for minor traffic infractions, pressed them to agree to warrantless searches and seized large amounts of cash without evidence of wrongdoing. The law allows such seizures and forces the owners to prove their property was legally acquired to get it back.
Police spent the seizure proceeds with little oversight, in some cases buying luxury cars, high-powered weapons and military-grade gear such as armored cars, according to an analysis of Justice Department data obtained through Freedom of Information Act requests.
In the special report “Guilty Until Proven Innocent,” published in the Star-Telegram in May, a team of TCU journalism students reported that in 2013, under the Equitable Sharing program, about $35 million was returned to Texas, including $2.9 million to a joint Drug Enforcement Administration/Tarrant County district attorney's office task force; $394,856 to the Dallas/Fort Worth Airport Department of Public Safety; and $57,942 to the Arlington Police Department, according to the Justice Department.
It could not be determined on Friday afternoon what impact Holder’s decision might have locally.
The state of Texas has its own civil asset forfeiture law. Ann Wright, the Tarrant County assistant district attorney who oversees forfeiture cases, said she has never used the federal statutes in a Tarrant County case.
Wright declined to comment on whether the new federal policy would change the way the district attorney’s office in Tarrant County does business because, she said, she had not researched the issue.
Matt Simpson, a policy analyst with the American Civil Liberties Union of Texas, characterized Holder’s action as a “symbolic gesture.” It may affect some cases in very specific circumstances, such as having a vehicle searched and seized when a suspected wrongdoer is traveling into Texas from a foreign country, but for the vast majority of cases it will remain business as usual, Simpson said.
Civil asset forfeiture troubles many people, Simpson said, and what Holder has done is ask people to take a step back and determine what can be done to make the law more fair.
“There’s a huge amount of money that will not be affected by the Holder change,” Simpson said. “From the ACLU’s perspective, there’s a lot to be done at the state level.”
Tarrant County attorney Jim Shaw said that Holder made a good decision. But it’s too soon to know whether it will lead to more good, he said.
“We have a new DA in town, so let’s wait and see how Holder’s decision works out,” Shaw said.
According to the Star-Telegram’s special report in May, when law enforcement officials arrested 23 people during a low-level drug sweep in the Texas Christian University area on Feb. 15, 2012, many items belonging to the students who were arrested were seized before any formal charges were filed and months before anyone was convicted.
Police seized $46,243 in cash, 15 cars, trucks and SUVs valued at more than $250,000 and nine weapons, according to an after-action report released five days after the arrests. Other assets picked up by police included iPhones, iPads, MacBooks and an assortment of cellphones — 36 items totaling around $17,650.
The estimated street value of the drugs seized was about $29,000, the police report said.
Holder’s action comes as members of both parties in Congress are working together to craft legislation to overhaul civil asset forfeiture. Last Friday, Sens. Charles E. Grassley, R-Iowa, and Mike Lee, R-Utah, along with Reps. F. James Sensenbrenner Jr., R-Wis. and John Conyers Jr., D-Mich., signed a letter calling on Holder to end Equitable Sharing.
Grassley praised Holder’s decision on Friday.
“We’re going to have a fairer justice system because of it,” Grassley said. “The rule of law ought to protect innocent people, and civil asset forfeiture hurt a lot of people.”
He said he planned to continue pressing for legislative reforms.
“I commend the department for this step and look forward to working with them on comprehensive forfeiture reform that protects Americans’ property rights,” Sensenbrenner said. “Equitable sharing has become a tool too often used to bypass state law. Forfeitures should be targeted and must have appropriate procedural protections.”
The new policy could become one of the more notable pieces of Holder’s legacy. Holder has already announced he is leaving the department, and it is clear that he is takings steps to burnish his place in history. On Thursday, he pushed in a speech for better tracking of police use-of-force incidents.
Staff writer Mitch Mitchell contributed to this report, which includes material from the Star-Telegram archives.