ACLU-NJ Defends Man Charged Criminally For What He Said in Civil Forfeiture Suit

September 12, 2017

Hudson County Prosecutors did not inform man of his Fifth Amendment right against self-incrimination when forcing him to respond to forfeiture suit

The ACLU-NJ argued in the Appellate Division today that Hudson County violated a man’s rights when they used his response to a government seizure of his property as evidence in a criminal trial. The ACLU-NJ’s friend-of-the-court brief in the case,State v. Melendez, contends that the state needed to inform him of his rights in challenging the forfeiture and postpone the forfeiture suit until the criminal case had proceeded, as the law requires.

This case is part of a larger ACLU-NJ effort to challenge the injustices of civil asset forfeiture, a practice that allows law enforcement to seize property based on a suspicion that it was involved in criminal activity. Asset forfeiture, which does not require criminal charges, encourages over-policing.

“No one should be forced to choose between the Fifth Amendment right against self-incrimination and the right to due process, but that’s exactly what happened here,” said ACLU-NJ Attorney Rebecca Livengood, who wrote the ACLU-NJ’s brief in the case and argued before the court. “One of the fundamental dangers of civil asset forfeiture is its incentives for over-policing, whether in the form of a financial windfall or a back-door way to disregard the constitutional protections of criminal defendants.”

Luis Melendez was warned that if he did not challenge the seizure of his property, he could lose what was taken, totaling nearly $3,000. However, not having a lawyer, Melendez did not know that information given in the process of challenging his forfeiture could be admitted in the criminal case against him. The statement from the forfeiture suit was the only evidence at trial connecting him to evidence that was seized.

Prosecutors should have stayed the civil forfeiture proceeding pending the outcome of the criminal charges, the ACLU-NJ said in its brief. Instead, the prosecutors initiated both actions, knowing Melendez had no right to counsel in the civil proceeding, and directing him to New Jersey Legal Services to seek counsel to challenge the forfeiture, despite the fact that Legal Services does not actually represent forfeiture clients or clients who are incarcerated.

As part of its broader work to combat civil asset forfeiture abuses, the ACLU-NJ also represented a client in a suit against Hudson County from September 2016 to challenge its practice of combining unrelated forfeiture suits, which state law does not allow. Only when the cases are related in some way can they be combined into the same lawsuit. Because of this practice, the ACLU-NJ’s client had to pay a $175 to even attempt to recover the $171 taken from him.

Few people even try to get their property back after a prosecutor’s office has initiated civil asset forfeiture proceedings because of the costs, difficulty finding a lawyer, and complexity of the legal process. Of more than 1,000 seizures during a period of six months in 2016, people only contested 50 cases. The ACLU-NJ plans to release the results of its research into forfeiture in New Jersey this fall.

As part of its efforts to combat civil asset forfeiture abuses, the ACLU-NJ has brought on a full-time attorney, Law Fellow Liza Weisberg, to focus almost exclusively on challenging unconstitutional civil asset forfeiture practices.

The ACLU-NJ’s brief in State v. Melendez can be read online. (PDF)

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