A CBSDFW.com tweet went viral on Tuesday, but for precisely the wrong reason. Instead of getting the dog lovers to heart the photo of K9 Officer Ballentine at Dallas Love Field Airport, twitizens instead focused on the mounds of cash surrounding the pooch. It had been seized from a woman who is not even charged with a crime, let along convicted of one.
“The woman who owned the bag was not arrested, but the money was seized and police say it will be subject to the civil asset forfeiture process,” the channel reported. “K-9 Ballentine is part of the Dallas Love Field Interdiction squad, which is a unit of the Dallas Police Department’s narcotics division.”
The 25-year-old woman from Chicago was on a layover at Love Field when Ballentine came through, sniffing luggage. Presumably, officers suspect her of being a link in a drug trafficking operation. But they must not strongly suspect her; else they would have arrested her. Yet she left the airport short $106,829.
It’s called civil asset forfeiture. Under this practice, police and prosecutors can take your property without ever charging you with a crime, if they suspect the property is linked to a felony. Furthermore, you don’t get the protections during a forfeiture procedure you would have if you were accused of a crime (such as a lawyer and a jury of your peers, just to name two), because it is the property itself that is alleged to be guilty of the criminal offense (of being ill-gotten gains).
Once property is seized, the owner must prove that it wasn’t involved in criminality—switching the burden of proof from the state (where it should be) to the individual (who is then asked to prove a negative, which as logic teachers remind us, is often impossible). There’s no presumption of innocence.
Civil asset forfeiture was a largely unused common law practice reinvigorated in the 1970s in response to rising crime rates. Crime continued to rise for a quarter century in spite of the practice. But law enforcement and district attorney offices sure saw the advantage of the practice—they got “free” cash and other property they could use on just about anything. According to the Code of Criminal Procedure, these dollars can be spent on nearly anything but campaigns, booze, and judges.
Make no mistake: Our police and prosecutors must be adequately funded by dedicated spending, not through slush funds whose viability depends on whether we catch enough criminals.
LEOs’ enthusiasm for the program was clear during the 87th Session when a bill came before the Texas House reining in the practice. Representatives from the Harris County District Attorney’s Office, the San Antonio Police Department, the Houston Police Department, the Texas Police Chiefs Association and others testified against it. They prophesized blood in the streets (or nearly—they were very grim about losing this source of funding for laptop bags and copier toner).
They didn’t convince lawmakers; the House passed the bill on a vote of 143 yeas, five nays and one present but not voting (the bill later died in the Senate).
Maybe K9 Ballentine’s viral post will revive such reform. Following CBSDFW.com’s tweet, state Rep. Matt Schaefer, R-Tyler, reminded the twitterverse that his bill “Raised the burden of proof to highest possible & shifted burden to state in all cases.” House Speaker Dade Phelan responsed: “Saddle up … The House is going to pass civil asset forfeiture reform again.”
It’s well past time for Texas to update its civil asset forfeiture laws. Both parties call for it explicitly in their platforms. It polls through the roof. It has been excoriated by legal scholars. It is unrelated to crime, which is the problem. It needs to go.