A judge has ruled that a lawsuit accusing prosecutors and police in Indianapolis of illegally profiting off of civil forfeiture can go forward.
The lawsuit, filed by Institute for Justice, a nonprofit that focuses on ending civil forfeiture, states that Marion County officials have used forfeited funds solely to cover law enforcement expenses. However, the Indiana Constitution requires that all forfeiture proceeds be put into a fund to build schools—a directive Marion County has brazenly ignored. The Institute for Justice reports that:
I[]n Marion County—Indiana’s most populous county and home to Indianapolis— the school fund has not seen a penny of civil forfeiture proceeds since before some current students were born.
The suit seeks to invalidate a state statute "authoriz[ing] police and prosecutors to deduct 'law enforcement costs' from forfeiture proceeds," because it blatantly violates the Indiana Constitution.
Marion County has consistently failed to contribute any forfeiture proceeds into funding for schools. From the IndyStar:
In Marion County, forfeited funds are divided between the law enforcement agency and the prosecutor's office, according to court records.
According to memorandums of agreement between the agencies, the prosecutor's office gets 30 percent of forfeited funds. The remaining 70 percent goes to IMPD or to the Metro Drug Task Force, a group of officers from Marion and neighboring counties, depending on which law enforcement body is involved in an investigation.
The complaint states that Marion County law enforcement agencies received an average of $888,112 in forfeited funds annually from 2003 to 2010. That number reached about $1.5 million in 2011.
Every dollar of that money that is constitutionally required to be spent on schools. However, instead it just benefits the very people who stole it to begin with.
Local and state officials have used absurdly inflated numbers to justify their inexplicably high "law enforcement costs" that require them to use every penny of forfeited proceeds. From Institute for Justice:
This sleight of hand comes with a hefty price tag….[and] leads to cases where Marion County prosecutors claim outlandish sums as “law enforcement costs.” Line prosecutors have claimed $12,000, $13,500, even $17,000 as the cost of litigating forfeiture cases in which the other side doesn’t even show up in court. In one case, the police pocketed nearly $40,000 in reimbursement of the costs “associated with” picking up a suspicious package at a shipping facility, subjecting it to a sniff from a drug dog and opening it.
Local and state officials tried to have the lawsuit, which was originally filed in February, dismissed. However, Marion Superior Judge Thomas Carroll rejected their arguments and ruled that the lawsuit can proceed. The defendants promptly filed a now-pending appeal on their motion to dismiss.
Civil forfeiture, which allows law enforcement to seize a person's property and cash if they suspect it is even tangentially related to a crime, is both common and controversial. Advocates for civil forfeiture—typically police and prosecutors—say that the practice allows law enforcement to weaken organized crime and prevents people from benefitting from illegally obtained goods or cash.
But in reality, civil forfeiture is regularly blatantly abused by law enforcement. Police and prosecutors nationwide take shameless advantage of the process, seizing people's cash, cars, homes, and other property for little to no reason, often without proving any relationship between the property and illegal activity. If law enforcement suspects that you were involved in a crime, they can take your property without ever charging you with wrongdoing.
So where does all that property go? Well, often it ends up right back in the hands of law enforcement. In 25 states, law enforcement can keep up to 100 percent of the proceeds from whatever they seize. The same goes for the federal government. And in another seven states, police and prosecutors can keep up to 85 percent or more. Indiana is one of the better states, at least requiring that seized asset proceeds are used to build more schools. But even in Indiana, local law enforcement flagrantly violates the law.
This leads to twisted incentives on the part of law enforcement: They are quite literally rewarded for stealing from the people they're supposed to protect. They’re motivated to coerce, accuse, and threaten to get what they want.
A 2013 New Yorker article told the story of one couple and their two children who were on their annual road trip to visit family. They'd "decided to buy a used car in [their hometown], which had plenty for sale," and so they had brought along their cash savings. During their drive, they were pulled over in Tehana, Texas, for "driving in the left lane for more than half a mile without passing," and the officers asked if they could search the car. From the New Yorker:
The officers found the couple’s cash and a marbled-glass pipe that Boatright said was a gift for her sister-in-law, and escorted them across town to the police station. In a corner there, two tables were heaped with jewelry, DVD players, cell phones, and the like. According to the police report, Boatright and Henderson fit the profile of drug couriers: they were driving from Houston, “a known point for distribution of illegal narcotics,” to Linden, “a known place to receive illegal narcotics.” The report describes their children as possible decoys, meant to distract police as the couple breezed down the road, smoking marijuana. (None was found in the car, although [one officer] claimed to have smelled it.)
[The District Attorney told the couple] that they had two options. They could face felony charges for “money laundering” and “child endangerment,” in which case they would go to jail and their children would be handed over to foster care. Or they could sign over their cash to the city of Tenaha, and get back on the road. “No criminal charges shall be filed,” a waiver she drafted read, “and our children shall not be turned over to CPS,” or Child Protective Services."
They turned over the money. Unlike countless others, they chose to fight to get their assets returned. Still, they had a near impossible time getting the money back, and were forced to file a year long class-action lawsuit in order to get the county to even settle. The district attorney refused to testify, pleading the Fifth.
Across the country, people are left crippled by civil forfeiture—and that includes in Indianapolis. This is just another extreme civil liberties violation at the hands of prosecutors and police.
The lawsuit against Marion County was filed by Institute for Justice, a nonprofit that focuses on ending civil forfeiture. There are six plaintiffs named in the suit, including lead plaintiffs Jeana and Jack Horner. The couple had their two cars seized after Jeana's son was pulled over and arrested for possession of marijuana. Not only did the cops impound the vehicle Jeana’s son was driving, they seized the couple's other vehicle, as well. The Horners didn’t know he had marijuana in the car and were never charged with a crime. Still, it took almost nine months to get their cars back. From Institute for Justice:
For a month, Jeana tried to find out which agency was holding the vehicle, without success.
By the time prosecutors finally filed a formal forfeiture action against the vehicles in order to keep them for good, the burdens on Jack and Jeana had reached staggering heights. Given his health problems, Jack struggles to get around on his own (the seized Jeep is a designated handicapped vehicle), and Jeana, who works full time, was often unable to drive him. With no end in sight, they finally broke down and bought Jack a replacement car.
All of that trouble, wasted time, and unnecessary spending resulted in no criminal charges against Jack and Jeana, and no conviction for their son. Institute for Justice reports:
The criminal case against Jeana’s son eventually collapsed—the police searches had been illegal—and the courts also dismissed the forfeiture action against Jeana and Jack’s vehicles.
If the lawsuit is allowed to proceed, civil forfeiture might be significantly less lucrative for law enforcement in Indianapolis. The hope, however, is even bigger—that the lawsuit could lead to civil forfeiture being permanently banned in the state. If so, criminal forfeiture would be law enforcement’s only recourse, meaning prosecutors and police would need to secure a conviction before taking your stuff.
Imagine that.