Philly DA sued over $5.8 million civil forfeiture “machine.”

A class-action federal lawsuit seeks to shut down the District Attorney's civil forfeiture apparatus.

A class-action federal civil rights lawsuit, filed yesterday by the Institute for Justice, a Libertarian-oriented civil liberties union, and the Philadelphia civil liberties law firm of Kairys, Rudovsky, Messing and Feinberg, accuses the City of Philadelphia, Philadelphia Police Department and the Philadelphia District Attorney’s office of violating the civil rights of thousands of Philadelphians who have had their houses and other property confiscated by the Philadelphia District Attorney’s office, in many cases without any criminal charge being filed against them.  

The complaint, filed yesterday in the United States Eastern District of Pennsylvania, accuses the D.A. of using “civil forfeiture” — a set of laws that allow law- enforcement officials to seize and keep property with a link, often vaguely defined, to illegal activity — to pad its budget at the expense of property owners by depriving them, the complaint alleges, of their constitutional rights to due process.

The named plaintiffs are three Philadelphia residents who stand to lose their houses as a result of civil forfeiture actions by D.A., even though none of them has been charged with any crime. The District Attorney’s office regularly engages in the practice on the premise that the houses have been used as “instruments” of a crime (usually drug-dealing, usually by a relative).

The complaint does not go into specifics about what criminal activity the D.A. alleges took place in the houses involved, but emphasizes the impact of losing the houses would have on their owners. (One Plaintiff, Doila Welch, for example, shares her house with her siblings, including a cognitively disabled sibling, and their children. Welch, herself, suffers from mobility problems.)

It also describes as plaintiffs a class of all individuals who own property that is or will be the subject of a [civil] forfeiture petition brought by the Philadelphia D.A.’s office.

The lawsuit comes nearly two years after City Paper first described how the Philadelphia D.A.’s forfeiture apparatus, in a little-known, and yet massive forfeiture operation, brings in nearly $6 million annually in cases that are rarely seen, let alone heard on their merits, by a judge (“The Cash Machine,”  City Paper, 11/28/2012).

That revenue is then divided between the D.A.’s office itself and the Philadelphia Police, creating an incentive many critics of civil forfeiture (including the Institute for Justice) call “policing for profit.” The D.A.’s office, what’s more, has repeatedly declined to say how it’s spent the millions it generates in forfeiture every year — money which is not subject to outside oversight (“How the Philadelphia D.A. Spends Millions of Forfeiture Dollars is a Mystery,” City Paper, 11/28/2012”).

Civil forfeiture is being carried out within federal, state and local law enforcement agencies around the country. Even so, Philadelphia’s operation appears to stand out.  

CP’s investigation found that Philadelphia runs what might be one of the “pettiest” civil forfeiture operations ever documented, with the bulk of the D.A.’s nearly $6 million annually in forfeiture revenue coming from thousands of forfeiture cases filed, in what the paper described as a kind of “robo-forfeiture” process, against virtually every dollar confiscated on the street by police officers — sometimes in stops involving no arrest at all. That cash is then seized via a motion of forfeiture by the D.A.’s office, usually long before any criminal charges have been heard, or even filed. City Paper’s findings are cited multiple times in yesterday’s lawsuit.

Another piece in Pro Publica last August by this reporter described a separate arm of the Philadelphia D.A.’s forfeiture apparatus concerned primarily with the seizure of houses in which a drug crime was alleged, even when the house’s owners — often single, working mothers and grandmothers — have been accused of no wrongdoing and regardless of whether the alleged culprit (often a son or grandson) is still living there.

Philadelphia’s forfeiture apparatus was described in a wide-ranging piece about forfeiture in The New Yorker, as well. The Philadelphia D.A.’s office appears to be unique in the country when it comes to the scale and frequency with which it files forfeiture against individual houses.

The Philadelphia District Attorney’s office has repeatedly defended the legality of its forfeiture operation, and defended it as well on moral grounds. Forfeiture, the D.A.’s office has insisted, deprives criminals of ill-gotten gains and provides a means to abate nuisance houses that terrorize communities.

But it’s a system in which the burden of proof is effectively placed on property owners, who face a decidedly uphill battle in fighting to have their property returned. When it comes to cash, the D.A. wins the bulk of cases it files by a simple default judgment when an individual fails to make his first or any subsequent court date. Respondents in civil forfeiture cases are not guaranteed a lawyer if they can’t afford one, and many individuals interviewed by CP said they simply could not afford to lose the work time required to fight for what was sometimes as (relatively) little as $100 taken from them.

Those who did attempt to recover their property faced a process controlled almost entirely by prosecutors, in which they were forced to return to the same courtroom over and over — sometimes as many as a dozen times — and in which recovering property, was often so difficult as to be impossible.

Yesterday’s lawsuit challenges the Philadelphia D.A.’s forfeiture apparatus on multiple fronts, claiming that it violates on at least six fronts the constitutional rights of individuals whose property has been seized. All are alleged violations of the 14th Amendment right to “due process” under the law:

• Failing to provide “notice or a meaningful opportunity to be heard.”

• Requiring property owners to waive future rights to contest forfeitures.

• Failing to provide “prompt, post-deprivation hearings”

• The D.A.’s practice of “re-listing” the cases of those who do try to recover their property, often indefinitely, “requiring property owners to make monthly court appearances or else risk losing their property forever through default judgments.”

• The practice of allowing the law enforcement agencies conducting forfeiture to keep the proceeds.

• And for the practice of letting “prosecutors, with a direct financial interest in the outcome of civil forfeiture proceedings, control the civil forfeiture ‘hearings.’”

The plaintiffs have asked for largely symbolic monetary damages: a nominal $1 per person subjected to forfeiture, in addition to attorneys’ fees and expenses.  

But in terms of legal redress, they seek to shut down the D.A.’s forfeiture operation entirely.

The lawsuit asks the court, among other things, to declare the Philly D.A.’s forfeiture operation unconstitutional, declare the plaintiffs to be liable for the unconstitutionality of the program, and impose orders shutting down all forfeiture activity, and requiring that seized property be returned.

The plaintiffs in the case will hold a press conference on the lawsuit at noon today on  Independence Square’s “People Plaza” at the corners of 5th & Market streets.

For more information and data on civil forfeiture in Philadelphia, visit the author's website.