Policing for Profit: Evaluating the Constitutionality of Civil Asset Forfeiture

Objectives:

Students will be able to...

• Determine the central ideas of investigative reporting on civil asset forfeiture in Missouri and summarize them in a way that makes connections among relevant details in the text
• Cite evidence to support their analyses of the text
• Evaluate differing points of view on the issue of civil asset forfeiture by assessing reasoning and evidence

Warm-up:

1. The reporting we’ll read for the rest of this lesson has to do with how law enforcement interacts with civilians at traffic stops. Imagine that you are stopped at a traffic stop.

• What are some reasons that law enforcement officers might cite for stopping?
• What are your rights in this situation?

2. Review the Bill of Rights:

• What is the function of this document in our government?
• What entities does it apply to? Individuals, the federal government, state governments, local governments?
• What predictions can you make about how the Bill of Rights shapes how traffic stops can be conducted?

3. The beginning of the Fourth Amendment states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause…”

• In different words, what does the Amendment say?
• What kinds of protections might this Amendment afford to Americans? To you in a traffic stop scenario, specifically?

4. The Eighth Amendment states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

• In different words, what does the Amendment say?
• What kinds of protections might this Amendment afford to Americans? To you in a traffic stop scenario, specifically?

Introducing the Lesson

This lesson explores reporting from Taken, a Pulitzer Center-supported initiative that employs data journalism from newsrooms across the Midwestern U.S. to investigate civil asset forfeiture. Civil asset forfeiture is a controversial legal doctrine which allows police officers to seize property if they can assert reasonable suspicion that it is connected to a crime. Civil asset forfeiture allows the police department to keep that seized property—and they often do even if the owner of that property is never proven guilty of a crime, or never even has criminal charges filed against them.

Today, we will explore two articles exploring how the Phelps County Sheriff’s Department in central Missouri gets around state laws restricting the use of civil asset forfeiture as well as the fight for reform happening in all three branches of our government.

Some useful vocabulary for this lesson:

• Forfeiture
• Circumvent
• Loophole
• Conviction
• Interdiction
• Incentive
• Preponderance
• Probable cause

You can find more reporting on civil asset forfeiture here, and on land and property rights around the world here. 

Introducing the Resources:

1. Individually, or in pairs, read "For Phelps County: Seizing Suspects' Assets Like 'Pennies from Heaven'" by William H. Freivogel and Brian Munoz, which explains how law enforcement officers use civil asset forfeiture in Phelps County, MO.  Respond to the following questions as you read, and then discuss your responses with the rest of the class:

1. How much money was seized in Phelps County between 2016 and 2017?
2. What is the Equitable Sharing Program?
3. The article states that only two cents of every dollar seized has gone to schools despite state law mandating that all of the money be allocated to fund public schools. How are law enforcement agencies able to avoid complying with Missouri law?
4. The article states that “Phelps County...almost never files state criminal charges against those whose cash they seize.” What are some reasons for this listed in the article?
5. According to the Phelps County Sheriff, how can civil asset forfeiture help law enforcement fight crime?

2. In three groups, read excerpts from a second article: "No Drugs, No Crime and Just Pennies for School: How Police Use Civil Asset Forfeiture." This article explores efforts to reform civil asset forfeiture laws and practices in each branch of government. 

• Group 1: read about reform in the Legislative branch (The section titled, “The Kochs - Moving the needle”), and answer this question: What primary ideology or party affiliation does the reporting associate with civil asset forfeiture reform? According to the author, what partisan values might explain this?
• Group 2: read about reform in the Judicial branch (Titled, “Misgivings on the court”) and discuss the following: Justice Clarence Thomas is quoted saying that forfeitures “frequently target the poor and other groups least able to defend their interests.” Why does Justice Thomas believe this to be the case?
• Group 3: read about the issue in the Executive branch (Titled, “Holder reform; Sessions retrenchment”): What are the main differences between Obama and Trump Administration policies on civil asset forfeiture?

3. After finishing group discussions, each group selects one student to share their question and their group’s findings with the rest of the class before moving into a class-wide discussion. Use the following questions to guide the discussion with the class:

1. Were you surprised by anything that you read? Why or why not?
2. How would you explain civil asset forfeiture to someone who doesn’t know much about it? 
3. A defender of civil asset forfeiture quoted elsewhere in this project, Charles Haines,  argues for “turning our police forces into present-day Robin Hoods.” What could he mean by this?
4. Based on what you reviewed about the Bill of Rights and states’ relationship to it as well as the articles’ discussion of how civil asset forfeiture often benefits law enforcement, do you think that civil asset forfeiture should be considered constitutional?
5. The reporting discusses a Supreme Court case where a man “bought a $42,000 Land Rover with money from his father’s life-insurance policy. Twice he drove the car when selling a small amount of heroin. The maximum fine for the heroin sales was $10,000. Timbs claimed it would be an excessive fine to require him to give up the $42,000 car when the fine would be a fraction of that amount.”
   • Do you agree with Timbs that the seizure was an excessive fine? Why or why not?
   • Which Amendment is being applied here?
6. The Phelps County Sheriff’s Department says that it does not engage in racial profiling in these seizures. Based on the descriptions of how these stops are conducted, do you agree with this? 

Extension Activities:

Option 1: An in-class debate

• In groups, students are assigned to two sides of the civil asset forfeiture debate—either in support of the usefulness and necessity of civil asset forfeiture in law enforcement or in opposition to its use.
• At home, conduct research in order to form arguments in support of your assigned position in anticipation of a class-wide debate on the issue where each side tries to persuade the other side to switch positions. 
• Note to educators: some sample in-class debate moderation techniques and structures can be found here and here.

Option 2: Local investigations

The reporters on this project, who are based in St. Louis, MO, conducted some of their reporting using public information available about how local law enforcement agencies acquire money from civil asset forfeiture. Undertake a similar research project in your own communities by following these steps:

• Step 1: Look at state and local laws which govern how the practice can be applied in your area. 
• Step 2: Explore publicly-available data on police use and revenues from civil asset forfeiture. 
• Step 3: Investigate ways that members of your community have been impacted by your local civil asset forfeiture policies.
• Step 4: Write a research paper, or, based on your findings, write letters to representatives or conduct a social media campaign to publicize your research and how you feel about it to persuade elected officials to share your view.