The whole concept of civil asset forfeiture turns the law on its head, essentially finding people guilty until they can prove their innocence.
Police departments and federal agencies across the country have been using civil procedures to seize cash, cars and homes that just might be somehow, maybe linked to a crime.
In Philadelphia a family’s $350,000 home was seized because police suspected their son was dealing drugs, for example.
In Humboldt County here in Nevada a county deputy seized $50,000 from a California tourist who said he’d won it at a casino, because he thought he might be a drug dealer.
According to a recording from a dashboard-mounted camera in the patrol car, the tourist asked why he was being searched, and the deputy replied, “Because I’m talking to you … well, no, I don’t have to explain that to you. I’m not going to explain that to you, but I am gonna put my drug dog on that. If my dog alerts, I’m seizing the money. You can try to get it back but you’re not.”
He also told the tourist, “You’ll burn it up in attorney fees before we give it back to you.”
Never mind that most cash these days have traces of drugs on it.
The tourist sued and eventually got his cash back.
In another Nevada case, the U.S. attorney’s office in Las Vegas demanded a local woman forfeit the $76,667 in salary she earned while running the office of her brother, who was later convicted of mortgage fraud.
U.S. District Judge Roger Hunt called the federal forfeiture effort against Jenna Depue “the most egregious miscarriage of justice I have experienced in more than twenty years on the bench. I refuse to be a party to it.”
Imagine working for someone for 20 years performing perfectly legal duties such as sweeping the floors only to have your boss convicted of a crime and learn the federal prosecutors are demanding you forfeit your life savings because those earnings were the issue of a criminal act.
Earlier this year, Attorney General Eric Holder finally saw the light and put a stop to letting local law enforcement agencies use the federal Equitable Sharing program, under which police used federal law to seize property and then get to keep 80 percent of the value of what was seized.
Recently, New Mexico lawmakers passed a bill essentially ending most civil asset forfeitures in that state until someone is convicted of a crime. It also would not let police agencies keep the proceeds of a seizure and instead channels it into the state general fund, thus ending an incentive for police to use seizures to raise money.
In Carson City, Republican state Sens. Don Gustavson of Sparks and James Settelmeyer of Minden have sponsored Senate Bill 138, which is similar to the one in New Mexico. It also requires a conviction prior to seizure and states that any money left over after expenses are covered goes to the general fund. The bill also mandates annual reports to the state on civil forfeitures.
The Fifth Amendment provides that “No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” But too often police intimidate people by basically extorting waivers of due process rights.
In case of the tourist in Humboldt, he was threatened with having his car impounded, too.
The Institute for Justice has been fighting civil asset forfeiture in the courts and on op-ed pages of newspapers for years. President and General Counsel Chip Mellor of IJ once said: “The Institute for Justice has documented time and again that civil forfeiture invites a lack of accountability, a lack of due process and a lack of restraints on government authority. Civil forfeiture needs to end. If the government wants to take someone’s property, it should first be required to convict that person of a crime.”
Former Las Vegas Review-Journal editorial page editor John Kerr, now a communications fellow with IJ, penned one of those op-eds for the Las Vegas paper recently. He wrote:
“Many law enforcement officials defend the current forfeiture laws as an effective and valuable tool in the fight against crime. But the Bill of Rights wasn’t enshrined in the Constitution for the purpose of empowering the government over its citizens — quite the opposite. Laws that allow police to seize cash, jewelry, homes and other valuables solely on the hunch of illegal conduct mock the principles that enrich and define a free society — such as liberty, justice and property rights — if not paired with meaningful judicial review in which the state must prove both the suspect’s guilt and a link between crime and the property.”
“Given the dubious policies behind facilitating property forfeitures, and the due process problems inherent in carrying them out, the more potent question is whether facilitating property forfeitures should be allowed at all. If the taking of such property is to be justified, or even tolerated, it must be for the most compelling public policy purposes, none of which can be demonstrated for facilitating property forfeitures.”
Let’s hope SB138 breezes through the legislative process and becomes law.
Dashcam video of cash seizure: