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.