Last Friday, the ACLU and the ACLU of Texas submitted a brief to the Texas Attorney General's office arguing that a District Attorney in East Texas should be barred from using money unfairly taken from motorists under Texas's asset forfeiture law to defend herself from a lawsuit brought by motorists who claim that their property was taken illegally.
The District Attorney, Lynda K. Russell, is accused of participating in a scheme in which police officers routinely pulled over motorists in the vicinity of Tenaha, Texas without cause, asked if they were carrying cash and, if they were, ordered them to sign over the cash to the town or face felony charges of money laundering or other serious crimes. The seizures were purportedly made under Texas's asset forfeiture law, which enables authorities to seize the profits of crime without a conviction. However, authorities had no evidence that plaintiffs were engaged in any criminal activity. None of the plaintiffs was arrested or ever charged with a crime. In a CNN.com article, David Guillory, one of two lawyers representing the plaintiffs, estimates that authorities in Tenaha seized an astounding $3 million between 2006 and 2008, and that in about 150 cases – almost all of which involved African-American or Latino motorists – the seizures were illegal.
District Attorney Russell argued that she should be able to use these funds for the "official purpose" of defending herself from charges that she threatened motorists with criminal charges if they didn't hand over their money. The irony is rich, given that the purpose of the asset forfeiture law is to make sure that criminals don't benefit from their crimes. Furthermore, Texas law prohibits the D.A. from using forfeited assets for this purpose.
According to state legislator John Whitmire, police agencies across Texas are wielding the asset-forfeiture law more aggressively these days to shore up their shrinking operating budgets. In Tenaha, the facts show that it was African American motorists who were forced to pay the price for the economic shortfall. Similarly, near the Mexican border, Hispanics allege that they are being singled out by local law enforcement. Yet again, it looks like people of color have come to bear the brunt of unfair and illegal enforcement of policy. What's more, this is not the first time that the use of asset forfeiture as a law enforcement tool has been criticized. The practice received considerable attention in 2000 and 2001.
Although the ACLU opposes the use of forfeited assets to pay for District Attorney Russell's defense, the ACLU has also argued that she should receive skilled government legal representation. In a disturbing refusal to accept responsibility for the D.A.'s actions, the Attorney General and the county both refused to represent Russell. Left unchallenged, this position is a threat to the civil and constitutional rights of all citizens. When a public official violates constitutional rights, the government must be held accountable. Otherwise, a dangerous precedent is set whereby government may excuse itself from overseeing the people it empowers and finances to act on its behalf. Either the county or the State must step up and take responsibility for Russell's actions in Tenaha.