Lawsuit could upend civil forfeiture in Indiana

A new challenge to Indiana’s civil forfeiture process does not seek to end the practice altogether but its attempts to stop the flow of money into local law enforcement coffers could, ultimately, halt the seizure of property in the state.

The Institute for Justice, headquartered in Virginia, filed a lawsuit Feb. 10 in Marion Superior Court charging the Marion County police and prosecutor’s office are violating the Indiana Constitution by not forwarding all civil forfeiture proceeds to the state’s common school fund. Instead, the county is keeping 100 percent of the money in a “policing for profit” scheme, the institute said.

Civil forfeitures have been challenged before in Indiana. The Indiana Supreme Court has not overturned the practice but in 2011 noted a key question of how the proceeds should be divided was unresolved.

Gedge

Now the institute is hoping its case, Jeana M. Horner, Dennis Jack Horner, et al. v. Terry R. Curry, Marion County Prosecutor’s Office, et al., 49D06-1602-PL-0004804, will entice the state’s five justices to answer that question. Samuel Gedge, attorney at the Institute for Justice, said he is confident not only that the Supreme Court has an interest in this issue but also that the justices will find the nonprofit’s interpretation of the Indiana Constitution is correct.

If the courts agree with the institute’s arguments, law enforcement would be prohibited from retaining any money collected as a result of civil forfeiture petitions. And that, Indiana Legal Services Inc. attorney Andrew Ault said, would likely stop the seizures because police and prosecutors would no longer have an incentive to confiscate and sell property. Ault is not involved in the Horner case.

The Marion County Prosecutor’s Office and the Indianapolis Metropolitan Police Department divvy all the money received from civil forfeitures based on a 30/70 split, according to the lawsuit. Between 2003 and 2010, the average proceeds from civil forfeitures in Marion County totaled $888,112 annually with the prosecutor’s office getting $188,704 each year, according to the lawsuit. In 2011 and 2012, the annual averages increased to $1.59 million with $459,848 being awarded to the prosecutor’s office.

Pointing to the Indiana Constitution, the Institute for Justice claims Indianapolis officials should not be keeping any of the financial returns. Article 8, Section 2 requires forfeiture proceeds to be deposited into the state’s common school fund.

Indiana’s Civil Forfeiture Statute, Ind. Code 34-24-1-1 to 34-24-1-9, allows for law enforcement to pocket part of the total received as reimbursement for the expenses associated with the civil forfeiture procedure itself. However, Institute for Justice described the law as a “legislative error” and said it too violates the state’s constitution since the plain language of Section 8 mandates “all” forfeiture money, not “some,” be sent to the school fund.

Curry

In a statement regarding the lawsuit, Marion County Prosecutor Terry Curry said, “We believe that forfeiture procedures utilized by our office comply with all exiting legal precedent which addresses civil forfeiture actions, and we welcome the opportunity to defend our procedures in this litigation. Fundamentally, we believe profits gained by criminal activity are appropriately forfeited for the public benefit and use.”

Revenue stream

Ault, who “vigorously” litigates against civil forfeitures for clients of Indiana Legal Services, noted sometimes the seizure of property is warranted. When a vehicle is clearly used in the commission of a crime, it would not be inappropriate for law enforcement to confiscate it.

Ault

But too often, he said, civil forfeitures have “degenerated into a revenue stream” for law enforcement. Rather than deterring crime, it just adds a second punishment for a defendant already being penalized for breaking the law.

Coupled with this is the low value of many of the cars seized. Ault said a defendant driving a $5,000 car is not a “criminal entrepreneur” and taking the vehicle is just an unnecessary punitive measure.

Indiana Justice Mark Massa agreed in Detona Sargent v. State of Indiana, et al., 49S02-1312-MI-790.

Sargent was arrested in September 2011 after she grabbed four iPhones before she left her job at a Walmart distribution center in Indianapolis. IMPD also seized her car – a 1996 Buick valued at $1,700 – and sought forfeiture by claiming she would have used the vehicle to facilitate the transportation of the stolen merchandise.

Ault represented Sargent. The Indiana Court of Appeals found in favor of the state, affirming the trial court, but the Indiana Supreme Court was divided. The majority, led by Justice Robert Rucker, reversed, ruling Sargent was not using the Buick to transport the cell phones because she was not “in possession” of the car at the time of her arrest.

Massa joined Justice Steven David’s dissent, but wrote separately that by trying to remedy an injustice, the majority may have set a precedent that could frustrate legitimate civil forfeitures. Still, he took time to highlight the double punishment inflicted upon Sargent.

“But really? Firing Sargent and having her righteously prosecuted for felony theft was not enough?” Massa wrote. “The State had to take her car, too?”

David Powell, executive director of the Indiana Prosecuting Attorneys Council, defended the practice of civil forfeitures, saying taxing the offender is better than taxing the public. “But,” he continued, “it has to be done openly and fairly so everybody knows what’s going on.”

Many times the money from the forfeiture goes to the unit to cover the cost of the investigation and the prosecution, Powell said. Law enforcement uses this money as opposed to going to the local county council and asking for funds.

Gedge countered police and prosecutors who need more financial support should turn to state and local government. Currently, law enforcement has a monetary incentive to keep and spend citizens’ property and, he said, Horner is trying to remove that incentive.

Unresolved question

The Institute for Justice believes a footnote has opened the door to upending civil forfeiture in Indiana. In the 2011 case Serrano v. State of Indiana and City of Fort Wayne, the Indiana Supreme Court acknowledged whether law enforcement keeping a portion of the civil forfeiture money violates the constitution remains an “unresolved question.”

Gedge maintained the Indiana Constitution is clear and Indianapolis is clearly in violation.

However in a 2010 official opinion, Indiana Attorney General Greg Zoeller held funneling forfeiture money into law enforcement budgets is not unconstitutional. He found Article 8, Section 2 applies only to fines assessed from criminal violations while a proceeding under Indiana’s forfeiture law is civil in nature and does not have to be paid into the common school fund.

Prosecutors continue to use that opinion to support their position in favor of civil forfeiture.

An attempt to find out how much of the civil forfeiture proceeds was being sent to the common school fund was unsuccessful.

Where the money goes could sway opinion, Ault said. If the money from the forfeitures was going to the schools, the opposition to the practice might feel differently because, at least, the funds would be helping people get an education and build a life free of drugs. But at present, he said, law enforcement is “ultimately seizing stuff for themselves.”•