The Attorney General issued a federal order setting forth a new policy which limits the authority of state and local law enforcement to seize assets such as cash and cars. The Department of Justice Office of Public Affairs released a statement on January 16, 2015, announcing the order by Attorney General Eric Holder which applies to all participants in federal forfeiture programs. Prior to this new order, State and local law enforcement were authorized under the federal forfeiture program to seize assets from individuals even when there was no arrest or allegation of a violation of state law. The police would typically seize large amounts of cash located during routine traffic stops. Local law enforcement would seize the property and then request that a federal agency take the seized asset and forfeit it under federal law. The local law enforcement agency would then get a percentage of the proceeds from the forfeiture.
This federal adoption of seized assets allowed the police to seize property that was not subject to seizure or forfeiture under State law expanding the power of local law enforcement. For example, Maryland law permits the forfeiture of money that is proceeds of narcotics trafficking. However, under the old federal forfeiture adoption policy, State and local law enforcement would seize cash even when there was no evidence of a narcotics crime. This lead to civil liberties violations by local police who stood to profit from the seizure. Minorities tended to be targeted more frequently for the seizure of cash even when there were no drugs seized and there was no arrest for a drug trafficking crime. Once the asset is seized, the burden is placed on the individual to request the return of the property. This often requires the assistance of a lawyer because law enforcement resists returning the asset even when the justification for the seizure is unclear.
The new policy implemented by the Attorney General should help to reduce these civil liberties violations. The order is effective immediately and applies to all Justice Department attorneys and components, and all participants in the Department of Justice Asset Forfeiture Program. There are public safety exceptions to this order. In addition, law enforcement can still seize assets subject to forfeiture under State law. Finally, local law enforcement will be slow to change local policies to comply with the new order. Therefore, people who have their assets seized should consult with an attorney regarding their options for getting seized assets back from the police.