California couple Henry and Minh Cheng, who own a jewelry business, sold a bulk order of gold chains earlier this year to a retailer in Virginia, which agreed to send $43,000 in payment by mail. However, the money never arrived. Police in Indiana intercepted the cash at a FedEx facility, seizing it without charging the Chengs or the Virginia retailer with any crime. The government claimed that large shipments of cash are often linked to criminal activity, according to the nonprofit law firm representing the couple.
Supported by the nonprofit Institute for Justice, the Chengs are now suing the state in a class action lawsuit filed earlier this month, alleging a widespread pattern of unlawful package seizures at the facility.
Law enforcement seized the money through a controversial practice known as civil asset forfeiture. Critics argue that it amounts to legalized government theft, often targeting innocent people. However, some government officials defend the practice, saying it enables law enforcement to cut off resources from criminals and deter crime, particularly in drug trafficking.
Former Attorney General Jeff Sessions, who expanded the practice in 2017, stated that it “helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed, and it weakens the criminals and the cartels.” Critics, however, contend that civil forfeiture has become a profitable enterprise for law enforcement, with many agencies keeping a large portion of the proceeds.
In 2020, police seized nearly $40,000 from Jerry Johnson at the Phoenix airport, where he was traveling to buy a semi-truck in cash for his shipping business. It took him two-and-a-half years to recover the money after a prolonged legal battle.
University of Pennsylvania law professor Louis Rulli highlighted the risks of civil forfeiture, stating that “ordinary Americans who have done no wrong are at risk.” He noted that fighting the government over seized property is often costly and challenging.
Civil forfeiture laws in the U.S. date back to the early days of the republic, originally intended to penalize European-owned ships involved in smuggling. Over time, the practice has evolved and is now often used against ordinary citizens, generating billions of dollars in annual forfeitures. The shift to using civil forfeiture in the “war on drugs” during the 1970s and 80s allowed law enforcement to seize cash and property from suspected drug criminals.
The laws vary by state, but generally allow law enforcement to seize property they believe is linked to a crime, even if the owner is not convicted or accused of any wrongdoing. Commonly seized items include money, homes, and cars, but law enforcement has also taken unusual items such as tattoo guns, night vision goggles, and washer-dryer sets.
Due to the nature of civil forfeiture cases, property owners often have limited recourse to fight in court, as the action is taken against the property itself, not the person. This legal quirk often leaves owners without the right to legal defense and facing the burden of proof to recover their property. In many cases, the cost of legal action outweighs the value of the seized property.
Rulli, who runs a legal clinic for low-income individuals in Philadelphia, has handled many civil forfeiture cases, particularly those arising from routine traffic stops on interstate highways. He noted that minorities are disproportionately targeted in these cases.
In some cases, elderly individuals have lost their homes because relatives or acquaintances engaged in illegal activities on or near their property. Research by the Institute for Justice found that most property owners do not contest civil forfeitures, often due to the costs, time, and intimidation involved in challenging the government.
Criminal forfeiture, in contrast, occurs only after someone has been convicted of a crime. Rulli emphasized that property should only be taken after a person has been proven guilty.
The impact of civil forfeiture is difficult to quantify, as states track and report data differently. However, many ordinary Americans find themselves “swept up” in civil forfeiture, facing significant challenges in recovering their property.
Despite efforts to reform civil forfeiture laws in recent years, the practice still enjoys support from law enforcement and district attorneys, who argue that it is essential for combating crime. Critics, however, point to abuses and the financial incentives for law enforcement agencies to seize property.
While some states have reformed their civil forfeiture laws by raising the burden of proof or increasing transparency, a federal loophole allows law enforcement to bypass state reforms by involving federal authorities, who can seize property and share the profits with local agencies.
Congress is currently considering the Fifth Amendment Integrity Restoration (FAIR) Act, which would raise the standard of proof, provide counsel for those who cannot afford it, and prevent the evasion of state laws. The issue has garnered rare bipartisan support.
Earlier this year, the Supreme Court ruled against property owners seeking a preliminary hearing when police seize their property. However, some justices signaled a willingness to reevaluate the constitutionality of civil forfeiture practices. Justice Neil Gorsuch, in particular, raised concerns about whether current practices align with the Constitution’s due process guarantees.
