WASHINGTON — When police officers pulled Damian Hernandez to the side of the road in Houston, they thought he might be a drug smuggler — or maybe a human trafficker.
There weren’t any drugs, or other human beings, in Hernandez’s car. But there was sand in his trunk. Multiple air fresheners. A little spiral notebook with numbers written inside. And Hernandez had $3,646 in cash.
The sand, a police officer later wrote, might have come from the shoes of an undocumented immigrant. And the air fresheners might have been intended to cover up the smell of illegal narcotics. The notebook could have easily been a ledger of money owed or spent for illicit purposes.
So the officers seized Hernandez’s $3,646, and then sent him on his way.
The police never charged Hernandez with a crime. As documents from the 2014 incident show, they never pursued further investigation, either. Neither party responded to requests for comment about the seizure.
But even though Hernandez wasn’t charged with anything, the Houston police used his $3,646 for their own purposes: purchasing body cameras and other equipment. They aren’t alone: For years, police officers across the state have seized tens of millions of dollars in assets from Texans, to purchase gear and pay officer salaries, using a tool called civil asset forfeiture. The majority of Texans whose assets were seized were never charged with any crimes.
Civil asset forfeiture is the controversial practice that allows government agents to seize money or property from individuals when the agents suspect the assets are in some way connected to illegal activity.
Proponents of the practice say it’s a way for law enforcement agents to combat drug traffickers, because the traffickers risk instantly losing their inventories or any money they’re carrying if they get pulled over while on the road. The money that’s seized then goes to bolster police budgets.
“These are large shipments of drugs — we’re talking hundreds of thousands of dollars and sometimes into the millions — sent north on Texas highways,” said Rockwall Sheriff Harold Eavenson, one of the most vocal supporters of civil asset forfeiture. If the police don’t seize the money, he said, “it goes right back into the pockets of the drug cartels.”
“We use that money to pay informants, to help build our cases,” he added.
But a coalition of groups across the political spectrum are less supportive of civil asset forfeiture. Progressive and libertarian reform advocates note that, unlike defendants in criminal court, individuals who have their assets seized without being charged with a crime are not guaranteed a lawyer in most cases. And in Texas and 33 other states, individuals whose assets are seized are presumed guilty, even if they’ve never been charged with a crime.
A bill in Congress, recently introduced by Sen. Rand Paul of Kentucky, could change that. The Fifth Amendment Integrity Restoration Act — otherwise known as the FAIR Act — would guarantee that people whose assets are seized have the right to a lawyer. The bill would also redirect the money police officers seized into the general fund of the U.S. Treasury, in theory reducing the incentives for police departments that might seize assets for their own financial benefit.
Among Texans in Congress, both Rep. Beto O’Rourke, D-El Paso, and Rep. Randy Weber, R-Friendswood, agreed to co-sponsor the House version of the bill. O’Rourke is currently challenging Sen. Ted Cruz in the 2018 Senate race.
Charley Wilkison, the executive director of Combined Law Enforcement Associations of Texas — which is Texas’ largest police officers’ union — has long argued that civil asset forfeiture is necessary. But he acknowledged that the tool has been abused — like in Tenaha, in East Texas, where more than $3 million in assets was seized from hundreds of motorists who hadn’t been charged with crimes between 2006 and 2008.
Over the course of three years, police officers ordered drivers passing through Tenaha to hand over thousands of dollars of cash. Sometimes, if children were in the car, officers would threaten to report the drivers to Child Protective Services for child endangerment. In one case, Tenaha officers did actually separate a child from his father — when the child’s father, Dale Agostini, refused to hand over $50,000 he was using to buy restaurant equipment.
The Tenaha case resulted in a class-action lawsuit when the American Civil Liberties Union sued local law enforcement on behalf of nearly a thousand black and Hispanic drivers who’d had their assets seized. That case was settled for an undisclosed amount in 2012.
What happened in Tenaha was “a travesty of justice that can’t be allowed to stand,” Wilkison said. “But those aren’t the decisions made by the rank and file cops I represent.”
Another point of contention for critics of asset forfeiture, at the federal and state level, is that the money officers seize goes straight into police departments’ budgets. Critics say those budget boosts come at the cost of innocent individuals’ property rights.
Last year, law enforcement agencies in Texas collected more than $34 million through civil asset forfeiture, according to records kept by the Texas attorney general’s office.
“You have people in this state who are losing their property without being charged with any crime at all,” said attorney Matt Miller, who runs the Texas office for the libertarian Institute for Justice. “Anybody who has any contact with law enforcement is at risk of being victimized by forfeiture.”
Miller is not alone in his concerns — groups on the left end of the political spectrum, including the ACLU, also oppose the practice.
“I think most people can’t believe that this is actually a law enforcement practice that occurs,” said Kanya Bennett, a civil asset forfeiture expert with the ACLU’s national office. “The thought of having property seized without due process — that’s certainly something that goes against sort of our American ideals and American values.”
No recourse in court
What bothers Miller most about civil asset forfeiture is that, in the vast majority of cases, individuals who have their assets seized never actually have a day in court. That’s because most seizures are for small dollar amounts.
“A lot of it is kind of low-grade abuse and a low-grade denial of people’s right to due process,” Miller said. “If someone has $2,000 in cash seized, or they have an old car seized, their choice is to either go find a lawyer or let it go.”
“More often than not, the person just kind of takes their lumps,” he added.