IJ’s Texas-sized Challenge Aims to End Forfeiture Abuse

Texas has some of the worst civil forfeiture laws and practices in the nation, but a constitutional challenge the Institute for Justice filed in April intends to change that. A Texas property owner is fighting back by challenging the government’s forfeiture of his Chevy truck. In so doing, he aims to protect the property rights of all Texans.

As we documented in our recently released report, Policing for Profit (spotlighted in our last newsletter), civil forfeiture is a legal fiction that permits law enforcement to charge property with a crime. Unlike criminal forfeiture—where property is taken away only after its owner has been found guilty in a court of law—with civil forfeiture, property owners need not be convicted of any crime to lose their homes, land, trucks, boats or cash.

Making matters worse, law enforcement agencies in Texas and many other states get to keep the cash and other assets that they seize, giving them a direct financial incentive to abuse this power and the rights of property owners. In Texas, forfeiture funds can even pay police salaries. This establishes a perverse incentive structure under which the more property police seize, the nicer their facilities, equipment and automobiles—and the bigger their personal paychecks.

Small businessman Zaher El-Ali, who goes by Ali, has lived in Houston for more than 30 years. In many ways, his is a classic American immigrant success story. Ali came to America from his native Jordan with only $500 in his pocket, knowing no one. He went to college, started a family and eventually started his own small business, restoring homes and cars and selling them mostly to low-income residents in East Houston, where Ali lives.

In 2004, Ali sold a 2004 Chevrolet Silverado truck to a man who paid him $500 down and agreed to pay the rest on credit. As with all cars bought on credit, Ali held the title to the car until he was paid in full and also registered the car in his name. In July 2009, the buyer drove the Silverado while drunk and was arrested for DWI. Because this was his third DWI arrest, he was imprisoned, pled guilty and was sentenced to six years in prison.

After the man’s arrest, the police seized the Silverado for civil forfeiture. It has been sitting in the Harris County impound lot ever since. In July and August 2009, Ali wrote to the sheriff and the district attorney, telling them of his interest in the truck and attaching copies of the title and registration naming Ali as the owner and asking for its return, because the jailed buyer had stopped making payments. The government responded by filing a civil forfeiture action against the truck: State of Texas v. One 2004 Chevrolet Silverado.

Ali has joined with the Institute for Justice in bringing counterclaims in the Chevrolet Silverado case to challenge Texas’ civil forfeiture statute as a violation of his constitutional rights. IJ’s lawsuit against Texas is the inauguration of our national effort to protect private property rights from abusive forfeiture laws.

We are challenging the perverse financial incentive scheme that underlies civil forfeiture in the state. We are also challenging the provision of the law that places the burden on owners to prove their innocence, rather than on the state to prove their guilt. If successful, our legal challenge will help rebalance Texas’ law enforcement priorities, take the financial incentives out of civil forfeiture and protect innocent property owners caught up in an upside-down legal process that violates fundamental constitutional standards of due process.

Scott Bullock is an IJ senior attorney.