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Forfeiture Grabs In NJ Widespread But Face Little Resistance

By Emma Cueto | December 16, 2018, 8:02 PM EST

You haven’t been convicted of a crime — haven’t even been arrested — but police officers confiscate your car anyway, saying they believe it was used in criminal activity and that you must go to court to get it back. For many, the cost of doing so means that property is gone for good.

A new report from the New Jersey chapter of the American Civil Liberties Union sheds some light on what can be a murky proceeding in the state and found that during a five-month period in 2016, more than 1,800 civil forfeiture actions were initiated by county prosecutors — and that only 50 were contested.

“It becomes clear that when [police] make a lot of seizures in relatively low amounts, they can guarantee that it will be a losing proposition for the person to try to go to court to challenge that seizure, because it’s probably more expensive just to walk through the courthouse door [than to accept the loss],” said Liza Weisberg, a fellow with the ACLU of New Jersey who works on civil asset forfeiture.

Civil forfeiture is a legal procedure in which law enforcement can take property they believe is used in criminal activity. Generally, agencies are allowed to keep whatever items they confiscate, which critics say incentivizes civil forfeiture actions.

The U.S. Supreme Court is currently considering a case challenging its constitutional bounds, Timbs v. Indiana, but has yet to rule. And in the absence of national rules, states are left to regulate the process themselves.

The New Jersey report, which was published Tuesday and looked only at forfeiture on the state — not the federal — level, noted that state and local governments in New Jersey are not transparent about civil asset forfeiture.

A past bill to increase transparency was vetoed by former Gov. Chris Christie in 2017. While a bipartisan bill that would require local governments to compile and share more data on civil forfeiture is currently being considered by the Legislature, as of now, not much is known.

In the face of that lack of information, the ACLU of New Jersey spent about a year requesting, collecting and analyzing data from every county in the state to map out what civil forfeiture looks like in the Garden State.

The data suggests that civil forfeiture is much more common in some cities than others. In Jersey City, the state’s second-largest city, for instance, there were nearly 350 civil forfeiture actions in just five months, or roughly one for every 700 residents. The city of Elizabeth, the fourth-largest in the state, however, saw just 31 civil forfeiture actions.

But those actions add up. All told, during the five months covered by the report, law enforcement agencies seized $5.5 million in cash, plus additional revenue in other property, including more than 200 cars.

Overall, the cities that saw the most forfeiture actions tended to have higher populations of black and Hispanic residents. There were a few notable exceptions, such as the town of Toms River, which ranked sixth in the state for most civil forfeiture proceedings with 37 and is nearly 90 percent white, according to census data.

And the report noted that the most money collected during this time period — a total of almost $800,000 — was taken in Bergen County, which is more than 70 percent white.

“I think the one important throughline is that [in] the places we know are heavily policed and have a lower income population — like Jersey City, Newark, Trenton, Paterson — we see the highest numbers of forfeitures,” Weisberg said. “[But] on the other end ... we can see places like Bergen County, where there are fewer seizures in higher amounts.”

The Jersey City and Toms River police departments and the county executive’s office of Bergen County did not respond to a request for comment.

Weisberg said that for her, the most startling and concerning statistic that the team uncovered was how rarely people even filed an initial answer in a forfeiture case, the first step to trying to retrieve their property.

Although the data itself doesn’t speak to that, she said that in her experience working with people trying to recover property, one of the major barriers is the cost of going to court. Unlike in criminal cases, people do not have a right to an attorney in civil actions, including civil forfeiture cases, meaning people would have to either hire an attorney or represent themselves.

It’s something Weisberg thinks police departments are well aware of, and creates an incentive to confiscate property in the “sweet spot” where it’s not quite valuable enough for people to pay to fight in court.

“They know that by doing this ... on a mass scale, they’re going to raise a huge amount of revenue,” Weisberg said. “It’s not hard to imagine that police departments have their bottom line in mind when they’re going out and doing what looks to us like targeting folks they know are really unlikely to mount a challenge in court.”

In light of its findings, the ACLU is calling on the state to reform the process, including implementing a requirement that a person must be convicted before their property can be seized and not allowing law enforcement to keep the property confiscated.

“We need dramatic and widespread reform of civil asset forfeiture, and ultimately, we need to end the practice altogether,” ACLU-NJ Policy Counsel Dianna Houenou said in a statement.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Kelly Duncan. Additional reporting by RJ Vogt.