An educational video on a controversial police practice known as civil forfeiture inadvertently exposes just how hard it is to get your property or cash back after the cops seize it.
The unnerving video geared towards cops has been getting negative press recently amid a campaign by a public interest law firm to reform civil forfeiture, which lets the cops take cash or property they believe was tied to a crime even if its owner is never arrested.
After cops seize that property, you can technically fight for it in court. But one of the main takeaways from the Continuing Legal Education (CLE) video is that it’s nearly impossible to win.
Civil forfeiture cases have a “signifcantly lower standard of proof” than criminal cases, an assistant prosecutor named Sean D. McMurtry said in the CLE video. When cops take your stuff or money, they have to file a bizarre-sounding lawsuit “against” the stuff. (One lawsuit was actually called “US v. Approximately 64,695 Pounds of Shark Fins.”)
In criminal cases, the government has to prove guilt beyond a reasonable doubt. But in civil forfeiture cases, as in all civil cases, prosecutors just have to show a “preponderance of evidence” is in their favour. This effectively means somebody who would never be convicted of drug-dealing in court could still have their car taken away because it was allegedly used for pushing narcotics. In fact, you can have your property seized even if there’s not enough evidence to charge you with a crime.
“We don’t have to charge anyone at all,” McMurtry, who’s chief of the forfeiture unit in Mercer County, New Jersey, said in the video.
People whose property is seized are at a special disadvantage because the government doesn’t have to provide them with lawyers. In the landmark 1963 case Gideon v. Wainwright, the Supreme Court ruled that state courts have to provide poor criminal defendants with lawyers. But that doesn’t apply to civil cases, including civil forfeiture actions.
“Many individuals come in pro se,” McMurtry said in the CLE video, meaning they represent themselves. “They have public defenders in general, but the public defenders are not allowed to represent them in a forfeiture action.”
It’s easy to understand why people often don’t stand a chance in these cases, or why they might choose not to put up a fight at all.
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