Civil forfeiture allows state and federal authorities to take your hard-earned cash without cause and keep it. The practice must be reformed.
Civil forfeiture allows state and federal authorities to take your hard-earned cash without cause and keep it. The practice must be reformed.
F oster mom Cristal Starling ran a hot-dog stand in Rochester, N.Y., and was saving to buy a food truck. She was making progress. But early one morning, the police came and took everything. Officers even emptied the pockets of her pants, which they found on the floor. Combined with cash from Starling’s bedroom dresser, the total came to $8,040. She eventually got her money back — three years, two months, and 25 days later.
Now she is fighting for interest. Her struggle to be made whole reveals the need for Congress to act.
Starling’s ordeal started on October 29, 2020. Armed with a warrant, officers showed up at her front door looking for her then-boyfriend, a suspected drug offender. Starling was not arrested or accused of any wrongdoing, but even after a jury acquitted the boyfriend, the government intended to keep Starling’s money using a law-enforcement process called civil forfeiture.
Through civil forfeiture, the government can seize and keep cash, cars, and other valuables based on the mere suspicion that they are connected to a crime, irrespective of whether there have been related arrests or convictions.
When Starling decided to fight back, her first challenge was figuring out the jurisdiction. The officers who raided her home were from the Rochester Police Department, but the city transferred Starling’s money to the federal government for civil forfeiture. This maneuver, “equitable sharing,” allows local agencies to bypass state laws. Once the process ends, federal agencies take a cut of the proceeds and return the rest — usually about 80 percent — to their local accomplices.
Starling’s next challenge was figuring out the paperwork. Civil forfeiture provides no right to counsel, and Starling could not afford an attorney, so she tried to represent herself. After she missed one filing deadline, a judge declared the government the new permanent owner of her cash. Her innocence did not matter.
Outcomes such as this are common. More than 90 percent of the time, the federal government wins because of technicalities and without having to prove anything in any court.
Rather than accept the flagrant lack of due process, Starling took her case to the Second Circuit Court of Appeals and secured her right to trial in August 2023. Our public-interest law firm, the Institute for Justice, got involved at this stage and started representing Starling for free. On January 23, 2024, prosecutors returned Starling’s money rather than wait for trial. Yet this move was not due to the government’s sense of justice. Like everything else about civil forfeiture, the motive was financial.
The Civil Asset Forfeiture Reform Act (CAFRA), which Congress passed in 2000, allows anyone who “substantially prevails” in a civil-forfeiture case against the federal government to recover court costs. Simply put, prosecutors backed down before Starling’s trial because they knew that, if they lost, the government would have to cover Starling’s expenses.
Miami mother Miladis Salgado challenged this ploy in 2019 after federal agents raided her home and seized $15,000 from a shoe box in her bedroom closet. The money included gifts from relatives for her daughter’s 15th birthday party — a special quinceañera celebration. Like Starling, Salgado did nothing wrong but suffered anyway. The government returned her money on the eve of trial and argued that she was not entitled to recover attorneys’ fees because she had not substantially prevailed — even though she had gotten all of her money back — because no trial had occurred. Despite this twisted logic, the Eleventh U.S. Circuit Court of Appeals sided with the government and left Salgado on the hook for her legal fees. Starling is facing similar obstacles in her fight to claim interest on her seized funds.
Cases such as these demonstrate the need for Congress to pass the Fifth Amendment Integrity Restoration Act, known as the FAIR Act. This bipartisan measure would go beyond CAFRA and create new safeguards against federal forfeiture abuse. Among other provisions, the FAIR Act would end equitable sharing, guarantee the right to counsel, and eliminate the profit incentive built into civil forfeiture by directing any property seized via the practice to the U.S. General Fund — away from participating agencies.
In Starling’s case, the recovered money will go to her small business, where it should have gone in the first place.
Paul Sherman is a senior attorney at the Institute for Justice, where Daryl James is a writer.