Newspaper column: Lawmakers fail to rein in forfeiture abuse, again

In the past three legislative sessions bills have been pushed to rein in the pernicious practice of civil asset forfeiture, which allows law enforcement agencies to seize cash, houses, cars and other property without a criminal conviction and keep the proceeds — a practice dubbed “policing for profit” by the Institute for Justice (IJ).

In 2015 Nevada lawmakers did pass a bill that, as introduced, would have required proof of a criminal conviction or a plea deal before seizure of cash or property. By the time it was sent to the governor, who signed it, the conviction requirement was dropped. The law does say the seized property or money should be returned if charges are dropped or dismissed after a trial, but too often charges are never filed against anyone.

In 2017, as pointed out by Daniel Honchariw of the Nevada Policy Research Institute (NPRI) in an op-ed in the Las Vegas newspaper, another bill that would have required a criminal conviction or plea deal, as well as directing proceeds go to education rather than the law enforcement agency died in the Senate Judiciary Committee where state Sen. Nicole Cannizzaro was vice chair. Cannizzaro is a deputy district attorney in Clark County.

Honchariw noted that Nevada district attorney offices earned more than $250,000 through civil forfeiture in 2016 alone, and the Las Vegas Metropolitan Police Department pulled in $1.9 million. That police department had awarded Cannizzaro a “Commendation and Certificate of Appreciation.”

In the session just ended, still another bill was introduced to curb civil asset forfeiture abuse. It passed the Assembly on a vote of 34-6, but, you guessed it, it died in Cannizzaro’s committee without a vote.

Such a conflict of interest is precisely why the Nevada Constitution clearly states, “The powers of the Government of the State of Nevada shall be divided into three separate departments, — the Legislative, — the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others …”

It is a provision that has been roundly ignored to the detriment of Nevadans.

This past week the Institute for Justice released a comprehensive study showing that civil asset forfeiture programs do little to actually deter crime. “Fighting Crime or Raising Revenue? Testing Opposing Views of Forfeiture” looks at local crime, drug use and economic data from a variety of federal sources.

The study finds more forfeiture proceeds do not translate into more crimes solved, despite claims that forfeiture gives law enforcement more resources to fight crime.

It also found that “when local economies suffer, forfeiture activity increases, suggesting police make greater use of forfeiture when local budgets are tight. A 1 percentage point increase in local unemployment — a standard proxy for fiscal stress — is associated with a statistically significant 9 percentage point increase in seizures of property for forfeiture.”

As IJ points out in an e-mail, Nevada police and prosecutors confiscated $11.8 million worth of property from 2015 to 2018.

One of the chief problems with civil asset forfeiture is the fact the proceedings take place in civil court, where the person whose property is being taken is not entitled to a public defender. An analysis by NPRI found that more than half of all forfeiture cases brought by the Las Vegas police involved property worth less than $1,000, well below the cost of hiring an attorney. The majority of property owners were unable to afford to contest the confiscation in court.

In fact a Humboldt County deputy once taunted a motorist from whom he’d just seized $50,000 in cash by saying, “You can try to get it back but you’re not,” later adding, “You’ll burn it up in attorney fees before we give it back to you.”

Civil asset forfeiture tortures the intent of the Fourth Amendment’s right to be free of unreasonable searches and seizures and the Fifth’s right to due process.

“The Institute for Justice’s new study shows Nevada policymakers can undertake serious and much-needed forfeiture reforms without jeopardizing police effectiveness,” said Lee McGrath, IJ’s senior legislative counsel, in a press release. “This study also confirms what experienced legislators in Nevada have long known — the state’s forfeiture laws encourage the pursuit of revenue over the pursuit of public safety and justice. Next session, the Nevada Legislature should enact comprehensive forfeiture reform and end policing for profit by sending all forfeiture revenue to the School Fund.”

The governor does have the power to call a special session.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Editorial: Time to relax professional job licensing burden

We have ranted and railed for years about the excessive and job killing professional licensing requirements in Nevada — to no avail.

Nevada has long ranked among the worst locales in the nation for limiting competition for jobs in certain professions — and not just doctors and lawyers, but also bricklayers, makeup artists, bus drivers, painters, manicurists and animal trainers.

Nationally, over the past 60 years, the number of jobs requiring an occupational license has grown from about one in 20 to about one in four.

According to a study just released by the Wisconsin Institute for Law & Liberty, Nevada ranked third worst in the nation for burdensome fees, training and apprenticeship requirements, behind only Tennessee and Alabama. The study suggests Nevada could increase employment by nearly 8.5 percent by merely reducing the professional licensing burden.

“When considering reforms to occupational licensing in their respective states, lawmakers are responsible for balancing concerns about public safety with the maintenance of an economic environment that ensures opportunity for all,” The Wisconsin Institute study concludes. “Protected interests in regulated occupations will, almost universally, oppose reductions in the burdens of licensure. It is often in their interest to maintain, and even raise, barriers to entry. But policymakers are now armed with statistical evidence that rigorous licensing burdens result in less employment in certain regulated professions. If protected interests cannot offer clear and substantiated proof that current licensing regulations are critical to protecting the public, policymakers must consider the forgotten men and women that those lower employment figures represent.”

Are the protections worth it?

Too often such licensing is little more than a protection racket for those in certain professions who don’t want any more competition.

A year ago, the Virginia-based Institute for Justice, which litigates to advance liberty by challenging government encroachment and restrictions, found that Nevada is the most expensive state in which to work in a licensed lower- and moderate-income occupation. The average licensing fee was $505. The law also requires an average of 601 days of education and experience and two exams, IJ found.

IJ also noted that Nevada’s education and experience requirements don’t seem to align with public safety concerns. “Emergency medical technicians can earn a license with just about 26 days of training. This is far less training than required of barbers, mobile home installers, cosmetologists, makeup artists, skin care specialists, manicurists and massage therapists,” IJ recounted.

In fact, to become an interior designer in Nevada requires 2,190 days of experience and/or education, while one can obtain a security guard license and a child care worker license at no cost with only two days of training.

Bills in both the 2015 and 2017 Nevada legislative sessions to modestly reform licensing requirement died without ever getting a hearing.

But perhaps there is an inkling of hope.

According to the Washington Examiner, representatives of 11 states, including Nevada, are planning to meet in Tucson, Ariz., in December to examine ways to lighten the burden of professional licensing laws, especially for jobs that do not require a college degree. The meeting is being coordinated by the National Conference of State Legislatures, the National Governors’ Association and the Council of State Governments.

The licensing requirements also vary wildly from state to state and can be a hindrance for relocation, especially people such as military spouses who move frequently.

A 2015 study by the Brookings Institution found job restrictions resulted in 2.8 million fewer jobs nationally and raised consumer costs by $203 billion annually.

Are the protections worth it?

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: Police should not seize property without a conviction

President Trump’s Attorney General Jeff Sessions has a reputation as a law-and-order guy, but the plan he announced this past week to step up civil asset forfeiture efforts skirts the law and jeopardizes order.

The plan is to reverse an Obama administration policy that restricted how often federal agencies would accept property — cash, vehicles, homes, airplanes — seized by local police agencies under suspicion it was used to perpetrate a crime such as drug dealing. That seized property is sold and the local police get 80 percent of the profits to spend as they see fit. This is called “equitable sharing.”

Sessions rationalized his policy change by saying “civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed, and it weakens the criminals and the cartels. Even more importantly, it helps return property to the victims of crime. Civil asset forfeiture takes the material support of the criminals and instead makes it the material support of law enforcement, funding priorities like new vehicles, bulletproof vests, opioid overdose reversal kits, and better training.”

Often property is seized and no one is ever convicted of an actual crime. The owner of the cash or property essentially must prove themselves innocent in a civil court.

In a 2010 report called “Policing for Profit: The Abuse of Civil Asset Forfeiture,” the Institute for Justice (IJ) noted that the practice provides an incentive for local police to seize property to boost their budgets.

Humboldt County deputy seized cash.

Sessions’ revised seizure policy allows local agencies to skirt state laws that restrict civil asset forfeitures. In 2014, the Justice Department reported $4.5 billion in asset forfeiture revenue.

In this past session of the Nevada Legislature Sen. Don Gustavson of Sparks filed a bill that would have required proof of a criminal conviction, a plea agreement or an agreement by the parties concerned before property could be forfeited. The bill died without a vote.

“Nevada forfeiture law provides paltry protection for property owners from wrongful forfeitures,” the IJ reports. “The government may seize your property and keep it upon a showing of clear and convincing evidence, a higher standard than many states but still lower than the criminal standard of beyond a reasonable doubt. But the burden falls on you to prove that you are an innocent owner by showing that the act giving rise to the forfeiture was done without your knowledge, consent or willful blindness. Further, law enforcement keeps 100 percent of the revenue raised from the sale of forfeited property.”

Still, Nevada local law enforcement often engages in “equitable sharing” with federal agencies, according to IJ, which resulted in $21 million accruing to the local agencies over a decade.

There have been a number of instances in Nevada in which property was seized without anyone ever being charged with a crime.

In January 2013 police seized $167,000 from a man driving a motor home westbound along Interstate 80 in Elko County. A judge just recently ordered the money returned.

Over a two-year period Humboldt County deputies seized $180,000 in cash from motorists. One deputy was caught on tape telling a tourist, “You’ll burn it up in attorney fees before we give it back to you.”

The U.S. attorney’s office in Las Vegas demanded a local woman forfeit the $76,667 in salary she earned while running an office for her brother, who was later convicted of mortgage fraud. The sister was never charged. A federal judge called the forfeiture effort “the most egregious miscarriage of justice I have experienced in more than twenty years on the bench.”

This happened though the Fifth Amendment provides: “No person shall be … deprived of life, liberty, or property, without due process of law …”

In his policy announcement Sessions admitted there can be problems with asset forfeitures, but he promised to “protect the rights of the people we serve. Law-abiding people whose property is used without their knowledge or without their consent should not be punished because of crimes that others have committed.”

That promise hardly constitutes “due process of law.”

Congress should rein in this abuse-prone practice.

In fact, Republican Sen. Rand Paul of Kentucky and Rep. Tim Walberg of Michigan have reintroduced the Fifth Amendment Integrity Restoration (FAIR) Act.

“The FAIR Act will ensure that government agencies no longer profit from taking the property of U.S. citizens without due process,” Paul said, “while maintaining the ability of courts to order the surrender of proceeds of crime.”

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Editorial: Time to cut occupational licensing requirements in Nevada

With Nevada still clinging to its ignominious ranking of second worst in the nation in joblessness, more needs to be done to clear away the hurdles for those seeking to earn a decent living.

One place where the deadwood can be cleared is in the area of professional licensing requirements. Too often such licensing is little more than a protection racket for those in certain professions who don’t want any more competition.

According to the Virginia-based Institute for Justice, which litigates to advance liberty by challenging government encroachment and restrictions, Nevada has the fourth most onerous professional licensing scheme in the country.

An Institute for Justice analysis from a couple of years ago — nothing has really changed in the interim — noted that Nevada requires licensing for 55 out of 102 moderate-income occupations. We’re not talking about doctors and lawyers. We’re talking about bricklayers, makeup artists, bus drivers, painters, manicurists and animal trainers.

“Nevada is the most expensive state in which to work in a licensed lower- and moderate-income occupation, with average fees of $505. It also requires an average of 601 days of education and experience and two exams,” IJ found.

Often the excuse for requiring occupational licensing started out as a concern for public safety. No one wants a barber who trims more ear than hair. No one wants a cinder block wall to fall on them. No one wants a pest control worker who doesn’t know to not use too much pesticide.

But IJ points out that Nevada’s education and experience requirements don’t seem to align with public safety concerns. “Emergency medical technicians can earn a license with just about 26 days of training. This is far less training than required of barbers, mobile home installers, cosmetologists, makeup artists, skin care specialists, manicurists and massage therapists,” IJ relates.

In fact, to become an interior designer in Nevada requires 2,190 days of experience and/or education. Only three states and the District of Columbia require licenses for interior designers. Various construction jobs require 1,460 days, while a travel guide requires 733 days and a makeup artist 210 days. To become an athletic trainer takes 1,460 days.

Then there is the cost for licensing fees.

“In many occupations, Nevada has by far the most expensive licensing fees,” according to IJ. “For example, to become an alarm installer requires $1,036 in fees, whereas the national average is $230 for fire and $213 for security alarm installers. A license costs animal trainers $770 in fees, compared to the national average of only $93. Aspiring mobile home installers must pay $566 in fees; the average is only $336.”

That travel guide license costs $1,500 in Nevada. While security and fire alarm licenses cost more than $1,000, you can obtain a security guard license and a child care worker license at no cost with only two days of training.

To chip away at that unemployment ranking, licensing just might be a place to start. Slash fees and reduce the amount of experience and education required in many occupations. Better yet eliminate the licensing requirements entirely for many occupations where employers are the better judge of employee qualifications and skills.

“All Americans deserve the opportunity to earn an honest living. Yet occupational licenses, which are essentially permission slips from the government, routinely stand in the way of honest enterprise,” IJ argues. “Without these licenses, workers can face stiff fines or even risk jail time. The requirements for licensure, though, can be an enormous burden and often force entrepreneurs to waste their valuable time and money to become licensed. Additionally, these burdens too often have no connection at all to public health or safety. Instead, they are imposed simply to protect established businesses from economic competition.”

We agree.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: ACLU lawsuit is an attack on parental choice for educating their children

Many of the news stories about the ACLU suing to block implementation of Nevada’s education savings accounts (ESAs), approved by this past Legislature as Senate Bill 302, mention that such accounts were declared unconstitutional in Colorado recently. Like Nevada, Colorado’s state constitution includes a Blaine Amendment prohibiting the use of tax money for sectarian purposes.

Few stories bothered to mention that Arizona also has a Blaine Amendment in its constitution, but the Arizona Court of Appeals upheld Arizona’s ESAs two years ago.

That court found that ESAs were neutral toward religion by leaving spending decisions to parents, not the state.

“The ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion. Any aid to religious schools would be a result of the genuine and independent private choices of the parents,” the court said. “The parents are given numerous ways in which they can educate their children suited to the needs of each child with no preference given to religious or nonreligious schools or programs.”

Yet Tod Story, executive director for the ACLU of Nevada, has been quoted as saying, “The education savings account law passed this last legislative session tears down the wall separating church and state erected in Nevada’s constitution.”

The Nevada Constitution says: “No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.”

The ACLU lawsuit argues, “The Program establishes a system whereby, instead of enrolling their children in public schools, parents may obtain and use public money to pay for enrollment in private religious institutions. This is exactly what the Nevada Constitution forbids.”

Once it is in the hands of the parents, is it still public money?

After the lawsuit was announced, the Institute for Justice (IJ), which advised Nevada lawmakers drafting the ESA law, issued a statement. Senior Attorney Tim Keller said, “We worked closely with the state legislature throughout the drafting process to ensure the program’s constitutionality, and we fully intend to defend it against this baseless and cynical lawsuit.”

IJ helped Arizona defend its ESA program. Keller noted that, like Arizona’s ESA program, “Nevada’s ESA program does not set aside a single dollar for religious purposes, but instead gives parents a genuine choice as to how to spend the money deposited in their child’s education savings account. … The Supreme Court of the United States, as well as numerous state supreme courts, have already held that educational choice programs, like Nevada’s ESA Program, are constitutional. We expect the same from Nevada courts.”

Patricia Levesque, CEO of the Foundation for Excellence in Education, said of the ACLU suit, “It is ironic that the ACLU pledges itself to ‘defend and preserve the individual rights and liberties guaranteed to every person. … Yet today the ACLU opposes giving every parent in Nevada the right to decide where his or her child goes to school. There is no more fundamental right in this country than trying to create a better life for your child.”

The law allows the state Treasurer to set up savings accounts for parents who choose to take their children out of public schools. For most the annual account will be equal to 90 percent of the public school per-pupil state funding allotment or a little more than $5,000. Parents earning less than 185 percent of the federal poverty level would get 100 percent of state funding.

The money can be spent on tuition at private schools — even church-operated schools, according to backers — textbooks, transportation, tutoring, testing, curriculum, homeschooling and supplemental materials.

The law goes into effect on Jan. 1, but a qualifying child must have “attended a public school for 100 consecutive school days to enter into an agreement …”

Though opponents of the law say there will no accountability for the quality of education of those receiving ESAs, the law requires students with ESAs to take standardized examinations in math and English and make the results available to the state Department of Education, which must publish aggregate data on the results.

Republican Attorney General Adam Laxalt is tasked with defending the Nevada law from such court challenge.

ACLU announced suit over education savings account law. (R-J photo)

A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.

 

ACLU suit over education savings accounts is a challenge to parental rights

Many of the news stories about the ACLU suing to block implementation of Nevada’s education savings accounts (ESAs), approved by this past Legislature as Senate Bill 302, mention that such accounts were declared unconstitutional in Colorado recently. Like Nevada, Colorado’s state constitution includes a Blaine Amendment prohibiting the use of tax money for secular purposes.

Few bother to mention that Arizona also has a Blaine Amendment in its constitution, but the Arizona Court of Appeals upheld Arizona’s ESAs two years ago.

That court found that ESAs were neutral toward religion by leaving spending decisions to parents, not the state:

The ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion. Any aid to religious schools would be a result of the genuine and independent private choices of the parents. The parents are given numerous ways in which they can educate their children suited to the needs of each child with no preference given to religious or nonreligious schools or programs. … The ESA is a system of private choice that does not have the effect of advancing religion. Where ESA funds are spent depends solely upon how parents choose to educate their children.  Eligible school children may choose to remain in public school, attend a religious school, or a nonreligious private school.

Yet the morning Las Vegas newspaper quotes Tod Story, executive director for the ACLU of Nevada, as saying, “The education savings account law passed this last legislative session tears down the wall separating church and state erected in Nevada’s constitution.”

The Nevada Constitution says: “No sectarian instruction shall be imparted or tolerated in any school or University that may be established under this Constitution.” It also says, “No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.”

The ACLU lawsuit argues: “The Program establishes a system whereby, instead of enrolling their children in public schools, parents may obtain and use public money to pay for enrollment in private religious institutions. This is exactly what the Nevada Constitution forbids.”

Once it is in the hands of the parents, is it public money?

After the lawsuit was announced, the Institute for Justice (IJ), which advised Nevada lawmakers drafting the ESA law, issued a statement. Senior Attorney Tim Keller said:

We worked closely with the state legislature throughout the drafting process to ensure the program’s constitutionality, and we fully intend to defend it against this baseless and cynical lawsuit. Nevada’s Education Savings Account (ESA) Program was enacted to help parents and children whose needs are not being met in their current public schools, and we will work with them to intervene in this lawsuit and defeat it.

The Supreme Court of the United States, as well as numerous state supreme courts, have already held that educational choice programs, like Nevada’s ESA Program, are constitutional. We expect the same from Nevada courts.

IJ helped Arizona defend its ESA program. Keller noted that, like Arizona’s ESA program, “Nevada’s ESA program does not set aside a single dollar for religious purposes, but instead gives parents a genuine choice as to how to spend the money deposited in their child’s education savings account.”

Patricia Levesque, CEO of the Foundation for Excellence in Education, said of the ACLU suit, “It is ironic that the ACLU pledges itself to ‘defend and preserve the individual rights and liberties guaranteed to every person. … Yet today the ACLU opposes giving every parent in Nevada the right to decide where his or her child goes to school. There is no more fundamental right in this country than trying to create a better life for your child.”

The morning paper also noted that a group calling itself Educate Nevada Now also plans a suit to try to strike the ESA law, but will argue that the law runs counter to a constitutional requirement that the state “sufficiently” fund public schools, a rather nebulous concept.

The claim that the law will strip desperately needed funding from already starving local school budgets is blatantly false. It will relieve those schools of overcrowding and will only cost them a portion of the state’s Distributive School Account. Each school would still get 10 percent of state funding for most students who leave, as well as local and federal funds for students zoned in that school but who do not attend. Schools would actually get more funding per pupil for those who remain in public schools and will not have to build as many new schools.

The law allows the state Treasurer to set up savings accounts for parents who choose to take their children out of public schools. For most the annual account will be equal to 90 percent of the public school per-pupil state funding allotment or a little more than $5,000. Parents earning less than 185 percent of the federal poverty level would get 100 percent of state funding.

The money can be spent on tuition at private schools — even church-operated schools, according to backers — textbooks, transportation, tutoring, testing, curriculum, homeschooling and supplemental materials.

The law goes into effect on Jan. 1, but a qualifying child must have “attended a public school for 100 consecutive school days to enter into an agreement …”

Though opponents of the law say there will be no accountability for the quality of education of those receiving ESAs, the law requires students with ESAs to take standardized examinations in math and English and make the results available to the state Department of Education, which must publish aggregate data on the results.

Republican Attorney General Adam Laxalt is tasked with defending the Nevada law from such court challenge. His office has a general policy of not commenting on pending litigation.

ACLU announces lawsuit against education savings account law. (The R-J is now so cheap the photo credit and the story byline are the same.)

 

 

 

 

Newspaper column: Nevada lawmakers must put a stop to civil asset forfeitures prior to conviction

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 Humboldt County here in Nevada a county deputy seized $50,000 from a California tourist who said he’d won it at a casino. The deputy claimed 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.”

Over a two-year period Humboldt deputies seized $180,000 in cash from motorists, some of them got their money back after fighting the seizure in court.

Deputy seized cash from motorist.

The Nevada Attorney General’s office reportedly is investigating the county’s highway interdiction program, which smacks of highway robbery to us. The county’s new sheriff, who took office in January, has placed the deputy quoted above on paid leave pending an investigation.

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.”

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 state general fund. The bill also mandates annual reports to the state on civil asset 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 the 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.”

In a 73-page article published in the Nevada Law Journal, David Pimentel, a law professor at Florida Coastal School of Law, laid out the case against civil forfeiture.

“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,” writes Pimentel. “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 the governor signs it into law.

A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.

Newspaper column: Time to end warrantless searches and seizures

Civil asset forfeiture has turned into a fundraising scam for federal and local law enforcement agencies, who use the excuse that seized cash, cars and homes are the product of suspected criminal endeavors and thus forfeitable to the government, usually the agency doing the seizing.

It is happening in jurisdictions all across the nation and here in Nevada. A year ago a deputy in Humboldt County pulled over a California tourist in a rental car and grabbed $50,000 in cash that the tourist said he won in a casino, as reported in this week’s newspaper column, available online at The Ely Times and Elko Daily Free Press.

The day after that tourist’s money was seized, Humboldt County Sheriff Ed Kilgore sent out a news release along with a photo of the deputy posing with the cash and a police dog. “This cash would have been used to purchase illegal drugs and now will benefit Humboldt County with training and equipment,” the release boasted. “Great job.”

Deputy seized tourist’s cash.

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.”

The tourist sued and eventually got his cash back.

A couple of months later another man had cash seized by the same deputy.

And you thought the Fourth Amendment guaranteed: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In Philadelphia, the Institute for Justice, a nonprofit civil liberties law firm, has taken the police to court to try stop what one judge called state-sanctioned theft.

IJ has three clients, all of whom had their homes seized by police. In each case the police claim the property was used to commit minor drug crimes, none of which involved the actual owners.

“The class-action lawsuit challenges several aspects of Philadelphia’s forfeiture scheme. First, Philadelphia routinely seeks orders authorizing its officials to ‘seize and seal’ homes and other real properties — which they accomplish by throwing people, like Chris Sourovelis and their families, out onto the streets,” IJ reports. “But the city does not provide the families with any notice when it seeks such an order, and the homeowners never get a chance to argue why they should not be evicted before they are thrown out.”

A bill has been introduced in Congress to reform the civil forfeiture law.

Read the entire column Ely or Elko.

It is long past time to reinstate the Fourth Amendment guarantee to be free of warrantless searches and seizures

Civil asset forfeiture has turned into a fundraising scam for federal and local law enforcement agencies, who use the excuse that seized cash, cars and homes are the product of suspected criminal endeavors and thus forfeitable to the government, usually the agency doing the seizing.

It is happening in jurisdictions all across the nation and here in Nevada. A year ago a deputy in Humboldt County pulled over a California tourist in a rental car and grabbed $50,000 in cash that the tourist said he won in a casino. The tourist sued and eventually got his cash back.

Deputy with K-9 and $50,000 in seized cash.

The day after that tourist’s money was seized, Humboldt County Sheriff Ed Kilgore sent out a news release along with a photo of the deputy posing with the cash and a police dog. “This cash would have been used to purchase illegal drugs and now will benefit Humboldt County with training and equipment,” the release boasted. “Great job.”

According to a dashcam recording, the tourist asked what reason 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 (pointing to money). 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.”

A couple of months later another man had cash seized by the same deputy.

In Texas a couple of years ago police seized cash from a couple who said they were to use it to buy a car at their destination.

In Massachusetts a motel was seized because drugs had taken place there, though the owners were in no way involved.

In Philadelphia a couple’s home was seized because, unbeknownst to them, their son sold a small quantity of drugs on the front porch.

And you thought the Fourth Amendment guaranteed:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Oh, but it is not a criminal case. No one need ever be arrested. The money and property are the guilty parties until proven innocent, if that is ever possible.

According to a recent Investor’s Business Daily editorial, the Justice Department’s forfeiture fund has gone from $94 million in 1986 to more than $1 billion today.

In Philadelphia, the Institute for Justice, a nonprofit civil liberties law firm, has taken the police to court to try to stop what one judge called state-sanctioned theft.

IJ has three clients, all of whom had their homes seized by police. In each case the police claim the property was used to commit minor drug crimes, none of which involve the actual owners.

“The class-action lawsuit challenges several aspects of Philadelphia’s forfeiture scheme. First, Philadelphia routinely seeks orders authorizing its officials to ‘seize and seal’ homes and other real properties — which they accomplish by throwing people, like Chris Sourovelis and their families, out onto the streets,” IJ reports. “But the city does not provide the families with any notice when it seeks such an order, and the homeowners never get a chance to argue why they should not be evicted before they are thrown out.”

A bill also has been introduced in Congress to reform the law.

The Nevada Legislature should take this matter into its own hands and create a law that prohibits the seizure of private property without proper warrants and reasonable cause. Nevadans should not be forced to hire expensive lawyers and spend years in the courts to prove their property is innocent. It is a matter of due process.

Institute for Justice wins free speech cases elsewhere, while Nevada languishes

Would that Nevada had a few judges as perspicacious as ones found in Arizona and Mississippi.

While a Carson City judge was fining and penalizing a Virginia-based conservative group more than $100,000 for buying television commercials without first registering with the state and disclosing its donors and expenditures, judges in those states were declaring that their similar laws fail First Amendment muster.

Nevada law mandates that any group spending more than $100 to expressly advocate for a candidate or ballot issue must first register with the Nevada secretary of state, as reported in this week’s newspaper column, available online at The Ely Times and Elko Daily Free Press.

Anonymous speech that is banned in Nevada.

Attorneys for Alliance for America’s Future — which spent $189,223.50 airing a 30-second television commercial 320 times praising Brian Sandoval’s conservatism during the gubernatorial campaign of 2010 — argued that threshold is far too low to hold up under constitutional scrutiny.

Judge James Wilson rejected that argument, but attorneys for the Institute for Justice won two such cases within hours of each other in Arizona and Mississippi a month ago.

Mississippi’s threshold for having to register and report as a “political committee” was $200, twice Nevada’s. Five friends from Oxford, Miss., decided to join together and speak out in favor of a ballot initiative that would provide greater protection from eminent domain abuse.

Judge Sharion Aycock noted the courts have ruled there must be a point below which mandatory disclosure of campaign expenditures by incidental committees’ runs afoul of the First Amendment.

In the Arizona case a woman sent an email to a couple dozen friends and neighbors, inviting them to a protest against a $44 million road bond on the 2011 ballot. She promptly received a letter telling her to cease and desist until she registered as a political committee and filed all the paperwork to comply with state campaign finance laws.

Judge James Teilborg wrote: “In this case, it is not clear that even a campaign finance attorney would be able to ascertain how to interpret the definition of ‘political committee.’ As such, people of common intelligence must guess at the law’s meaning and will differ as to its application. Such vagueness is not permitted by the Constitution.”

He basically declared the whole law unconstitutional, not just the state’s $250 threshold.

Perhaps, the Alliance for America’s Future could invite the Institute for Justice to appeal Judge Wilson’s ruling to the state Supreme Court and reinstate the First Amendment in Nevada for everyone.

Read the entire column at the Ely or Elko site.