Court finds New Jersey forfeitures unconstitutional
Police addicted to plunder can't quit cold turkey: state files motion to stay ruling pending appeal

by Judy Osburn

FEAR Foundation Journal, Vol. 1 No. 1

Fall 2003

posted on FEAR website 4/10/2004
(c) 2003 FEAR Foundation.  Reprinting for distribution without charge, and republication permitted if article is printed in its entirety without editing, and attribution is given to FEAR Foundation Journal, Forfeiture Endangers American Rights Foundation, 20 Sunnyside Suite A-419, Mill Valley, CA 94941. 

Congratulations to FEAR board member Scott Bullock and the Institute for Justice for this major victory!

On December 11, 2002 Superior Court Judge G. Thomas Bowen ruled that New Jersey’s civil forfeiture provision allowing police and prosecutors to keep forfeited assets violates the Due Process clauses of the U.S. and New Jersey constitutions.

Institute for Justice senior attorney Scott Bullock, who serves on FEAR’s board of directors, remarked, "We are thrilled with the court’s ruling" that New Jersey’s method of financing police and prosecutors through the assets they seize is unconstitutional. "The decision will ensure that police and prosecutors make decisions on the basis of justice, not on the potential for profit."

State of New Jersey v. One 1990 Ford Thunderbird could be the forerunner of future challenges to similar laws in other states. Scott Bullock added: "We will challenge laws in other states to guarantee that the due process rights of property owners are protected when confronted with civil forfeiture"

Former Justice Department asset forfeiture office deputy chief–turned forfeiture defense attorney–David Smith declared "This is the single most important civil forfeiture case being litigated anywhere."

The state of New Jersey filed a motion on January 2 to stay the ruling, which would allow police and prosecutors to continue collecting the proceeds from the assets they seized and distribute it as they want until a higher court affirms Judge Bowen decision.

According to the Institute for Justice, a law firm based in Washington D.C that litigated the State of New Jersey v. One 1990 Ford Thunderbird on behalf of owner Carol Thomas:

From 1998 to 2000, New Jersey police and prosecutors collected an astonishing nearly $32 million in property and currency through the application of the civil forfeiture law. During that same period, on average, close to 30 percent of the discretionary budgets of county prosecutor offices came from civil forfeiture proceeds.

As the judge recognized in his opinion, forfeiture money has been used for "rent for a motor pool crime scene facility, office furniture, telecommunications and computer equipment, automobile purchase, fitness and training equipment purchase, a golf outing, food, including food for seminars and meetings, and expenses of law enforcement conferences, at various locations."

As the court further declared: "In theory and in practice, there is no limitation upon the motivation for enlargement to which a county prosecutor is subject in deciding upon seizure of property. . . . This court concludes, that the augmentation of the county prosecutors’ budgets, . . . provides to those in prosecutorial functions financial interests which are not so remote as to escape the taint of impermissible bias in enforcement of the laws, prohibited by the Due Process clauses of the New Jersey and U.S. Constitution."

Carol Thomas, a former Cumberland County, NJ sheriff’s officer began the fight to have her car returned in 1999 after it was seized because her son, age 17 at the time, used the car without her knowledge to sell marijuana to an undercover officer. Her son was arrested and punished and the state filed a civil forfeiture action against the car.

Thomas was a seven-year veteran with the Cumberland County Sheriff’s Office when her son was arrested. She subsequently left the sheriff’s department and decided to fight abusive forfeiture laws.

The non-profit Institute for Justice won a first-round victory in 2001 when it obtained release of Thomas’ car, at which time Judge Bowen allowed Thomas’s challenge to New Jersey’s unconstitutional profit motive to continue. After three years in court Bowen issued his December 2002 opinion holding New Jersey’s forfeiture scheme to be unconstitutional.

The state’s appeal did not surprise the Institute for Justice. Bullock stated, "We of course are fully prepared to defend Judge Bowen decision and we are confident that the appeals court will uphold his judgment and if necessary the Supreme Court of New Jersey will do so as well."

Judge Bowen granted the state’s motion to stay his order pending review from a higher court. The government and defense filed briefs in the appeals court last May.