Make the Government Pay for Its Misconduct: Rutherford Institute Calls on Court to Hold Government Liable for Reckless Civil Asset Seizures

NEW YORK, NY — The Rutherford Institute is calling on the courts to hold the government accountable for its misconduct, especially as it relates to reckless civil asset seizures.

In a joint amicus brief before the Second Circuit Court of Appeals in United States v. RossThe Rutherford Institute and The Buckeye Institute warn against practices that encourage the government to avoid being held financially liable for wrongfully seizing the property of innocent individuals.

“If the government is allowed to avoid the financial liabilities associated with wrongfully seizing the property of innocent owners, it will recklessly or intentionally seek to forfeit as much property as possible to see what it can get away with,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Such a practice cripples the ability of the citizenry, especially the poor and vulnerable, to effectively seek protection in the courts and hold the government accountable.”

Historically, civil forfeiture laws were limited to specific matters like customs and piracy. But starting in the 1970s as part of the “War on Drugs,” Congress began enacting civil forfeiture statutes allowing the government to seize and maintain the proceeds of drug crimes and the property used to facilitate them. By the mid-1990s however, concerns arose about the virtually unchecked use of civil forfeiture and the disregard for due process. In reaction to public outcry, Congress enacted the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”) with the goal of making civil forfeiture procedures fair for innocent property owners by giving them the means to recover their property and their attorney fees.

Like most attorneys in private practice, Richard Ross maintained a trust account to hold client funds for legal transactions such as real estate purchases and settlements. After Ross, 65, became a victim of fraud by a person posing as a client whose settlement funds were transferred into Ross’s trust account, the government suspected that some of the money in the account was related to a crime. But rather than seizing only that specific amount, the government seized the entire account even though it knew there was over $1.2 million in unrelated additional funds. Although the government never accused Ross of any wrongdoing, it nevertheless argued that all funds in the account were forfeitable, even though the government’s own policy warned against seizing third party funds from trust accounts. Ross filed a claim and litigated in court for recovery of the unrelated funds. More than a year later and after Ross had spent over $100,000 in attorney fees, the government eventually agreed to return the seized funds, but because the government dismissed its case prior to the trial court’s ruling, the government asserted that Ross did not substantially prevail in his claim so as to entitle him for recovery of his attorney fees. The trial court agreed with the government, effectively allowing it to circumvent CAFRA. Ross then appealed to the Second Circuit. In the amicus brief, Rutherford and Buckeye warn that not requiring the payment of Ross’s attorney fees sets out a roadmap for the government to evade the consequences imposed by CAFRA.

Joel S. Nolette of Wiley Rein LLP advanced the arguments in the amicus brief in United States v. Ross.

United States v. Ross

Article posted with permission from John Whitehead