Virginia Appeals Court Adds A Bit More Due Process To Asset Forfeiture Proceedings

The asset forfeiture playing field is still far from level, but it at least got a little bit better in Virginia, thanks to a recent state appeals court decision. Here’s Graham Moomaw with more details for the Virginia Mercury:

A Virginia court erroneously ruled authorities could keep $35,293 seized from a Chesterfield County auto repair shop by setting the bar too high for the owner to prove the cash wasn’t connected to a crime, according to a state Court of Appeals opinion released this week.

[…]

The dispute over the ruling in Chesterfield was largely about a procedural technicality, but it highlights the hurdles people can face when trying to argue the government wrongfully took their money.

As part of a drug operation in 2020, Chesterfield authorities seized money from an auto shop owned by Roger McMillian. 

A small amount of drugs was found on the second floor of the business where McMillian lived, court records show, and he was ultimately convicted of a drug possession offense. Another man arrested in connection to the case at a different location pleaded guilty to a drug distribution charge, according to court documents. But McMillian argued the cash police took from the business was legitimate and had no connection to drug dealing, money laundering or other crimes.

Before we get to the ruling [PDF] itself, let’s get to a bit of background. Several things are in play here, not all of them reflected by this opinion.

First, this is criminal asset forfeiture, rather than civil asset forfeiture. The first comes coupled with a criminal conviction, which McMillian ended up with (drug possession). That doesn’t make it much better, and there’s little to suggest the state wouldn’t have tried to seize the cash even if it wasn’t able to secure a conviction.

Roughly a decade ago, the Institute for Justice named Virginia as one of the five worst states in the nation in terms of forfeiture laws. To reach the bottom of this list, Virginia had to be worse than 45 other states. And there are very few states in the nation that truly prevent the government from taking stuff just because it can. A few states have placed a conviction requirement onto the books, but most states still allow cops to take cash without bothering to charge the person they’re taking money from. A decade later, the state’s still not doing great, earning a D- from the IJ.

And states with conviction requirements are still seeing that mandate circumvented by cops who ask the feds to buddy up with them on the seizure, allowing them to take a cut of the proceeds without having to worry about actually having to convict anyone of a crime.

That’s only part of it. The other part is a Supreme Court ruling that says the Eighth Amendment covers forfeitures like these. Even with a conviction, the property seized cannot be far more than the government could hope to recover in fines and fees. For instance, if drug possession means up to five years in prison and $10,000 in fines, the government cannot seize, say, $35,000 in cash without being able to prove that cash was obtained via illegal means. That’s an excessive fine and that violates the Eighth Amendment.

Since McMillian ended up convicted of nothing more than drug possession (and not even “possession with intent to distribute” — a charge that generally means larger amounts of illegal substances were discovered), it seems unlikely that a $35,000 seizure would not trigger Eighth Amendment protections as defined by the Supreme Court.

With this ruling, protections get a little better for Virginians. The state has a certain burden of proof to maintain. As the state appeals court points out, it’s not enough for the government to simply declare the person whose cash has been taken hasn’t provided enough proof of its legitimacy. While the decision does not address the burden-shifting that takes place in these cases (which should be enough on its own to be declared unconstitutional), it does say the state at least needs to give the person whose property has been seized their day in court.

There’s still some due process in play here, says the state appeals court. The trial court was wrong when it suggested otherwise.

Contrary to the circuit court’s interpretation of the statute, Code § 19.2-386.9(ii) does not require McMillian to provide the circuit court with “a check register, accounting ledger, invoice, bank statement, tax return, bill of sale, vehicle registration or DMV record, photograph or third-party statement of any kind or sort” in addition to his sworn answer. The examples of evidence listed by the circuit court all constitute exhibits, but exhibits are only one type of evidence that a litigant may use to ultimately prove his case at trial. While the use of an exhibit at trial may assist the finder of fact to determine whether McMillian actually has the ownership interest that he alleges, McMillian was not required to provide everything that he could put on at trial in his pleadings at this stage of the litigation. Instead, McMillian needed only to provide his own allegations in response to the Commonwealth’s pleading – which would then lead to a trial.

As much as law enforcement would like to believe forfeiture proceedings are only between it and the stuff it took, there’s more to it than that, even in a state that pretty much lets the government do what it wants when it comes to asset forfeiture.

That reverses the trial court’s decision, which means McMillian’s money (along with McMillian himself) will still have their day in court. And that reminder that due process still exists means the government won’t have things quite as easy in the future. It will actually have to prove its case. More than that, it will have to allow property owners the opportunity to prove the seized property was acquired legitimately. This will hopefully result in a reduction of opportunistic seizures by law enforcement, who are now on notice it will actually have to engage in a more truly adversarial process if they hope to keep what it’s taken.