On October 16, 2017, the ACLU of Pennsylvania filed a friend-of-the-court brief in the Pennsylvania Supreme Court urging the Court to reject the government’s argument that it has the inherent “common law” power to use civil forfeiture to take and keep property used in connection with any crime — including even low-level summary offenses.
The case arises out of an incident in Adams County in which the Appellee, Justen Irland, allegedly displayed a handgun to another driver who was tailgating him. Irland pled guilty to disorderly conduct as a summary offense, and was ordered to pay a $200 fine. The government also confiscated his gun. Although there is no statute authorizing the government to use civil forfeiture to take property connected to the crime of disorderly conduct, the Adams County District Attorney’s Office argued that it had inherent “common law” authority to use civil forfeiture to take and keep property that law enforcement believes was connected to any crime — even disorderly conduct.
The trial court accepted the government’s “common law” theory of forfeiture and ordered the forfeiture. The Commonwealth Court reversed, explaining that there is no such thing as “common law” forfeiture in Pennsylvania, and that the statutes authorizing civil forfeiture set the bounds of the government’s forfeiture power.
The ACLU-PA's amicus brief explained that the government’s “common law forfeiture” theory has no limiting principle and could lead to absurd and unjust results. The brief noted that property owners have few procedural protections in civil forfeiture proceedings, and that law enforcement has a direct financial incentive to use forfeiture aggressively against people who are powerless to fight back. The brief also compiled evidence that civil forfeiture is used disproportionately against people of color. In light of the long history of injustices stemming from civil forfeiture enforcement, the brief urged the Court to be wary of any rule that would give the government expanded powers to take and keep property without safeguards to prevent this power from being abused. On September 21, 2018, the Supreme Court of Pennsylvania affirmed the Commonwealth Court, holding that there is no common law power to take property through civil forfeiture.
