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States Moving To Rein In Police Powers To Seize Property

States from coast to coast are fighting to rein in the power of police to seize private property .

Bills to reform asset-forfeiture laws and curb police overreach in Ohio and Pennsylvania are advancing after the signing of a California bill last month.

California’s new law, which takes effect Jan. 1, 2017, will make it the 18th state to reform asset-forfeiture laws over the past two years, according to the advocacy group Institute for Justice. Under traditional asset-forfeiture laws, law enforcement agencies can seize citizens’ property in a civil action before the owner is charged or convicted of a crime.

The reform bill in Ohio, which has passed the House of Representatives, would allow civil forfeitures only when the seized property goes unclaimed, the owner has died or the owner has been formally accused of a felony and can’t be brought to justice. The bill has been referred to the Senate Government Oversight and Reform Committee.

In Pennsylvania, the reform bill is less extensive. Senate Bill 869, which has passed the state Senate and is now in the House Judiciary Committee, would shift the burden of proof in such seizures from the property owner to the public agency. In addition, it would raise the standard of proof required to show the property owner is responsible for a crime.

Supporters of asset-forfeiture laws say they are effective tools for denying criminals their purloined profits, particularly involving drugs. This deters criminal activity, according to the Center for Problem-Oriented Policing at the University of Albany in New York. The laws also tend to lead to more drug arrests by law enforcement agencies and help underfunded agencies boost their budgets, the center reports.

Civil libertarians, however, often see civil forfeiture as unconstitutional. They argue that forfeitures can proceed even before a person is convicted of a crime, lack protections for the accused, create a financial incentive for police to seize as much property as possible and disproportionately affect low-income people of color, according to the American Civil Liberties Union.

“Today, utilization of civil asset forfeiture has ramped up following the start of the massive failure known as the war on drugs,” said the policy group Freedomworks in a news release. 

The ACLU of Pennsylvania said the reform bill moving through the Pennsylvania legislature falls short of a true reform.

“The government can still forfeit property from people who have not been convicted of a crime and do not have lawyers,” said Reggie Shuford, the Pennsylvania ACLU’s executive director, in a prepared statement, “and the agencies that make decisions about forfeiture still directly profit from the practice.”

Pennsylvania’s amended bill, however, has the support of the Pennsylvania District Attorneys Association. “We’ll be able to work well with this legislation as currently drafted,” Richard Long, executive director of the association, told AMI Newswire.

The bill puts safeguards in place to protect citizens, Long said, including a requirement that the standard of proof in such cases will be “clear and convincing” evidence rather than simply a preponderance of the evidence.

“That raises the requirement on the commonwealth to make their case,” he said.

The bill also provides legal representation for those who cannot afford it, Long said. In addition, police agencies would still be able to use funds from legally seized property to buy crime-fighting equipment or even anti-overdose medication that will save lives, he said.

“The new law also increases some of the reporting requirements and auditing requirements,” Long said, and it provides for more checks and balances within the system to assure there’s a maximum benefit for public safety.

In contrast, the Ohio reform bill has not garnered the support of prosecutors. John Murphy, executive director of the Ohio Prosecuting Attorneys Association, told AMI that his state’s asset-forfeiture law was reformed by a commission in 2007 and that the bill now advancing in the legislature would impede prosecutors’ ability to fight drug crimes.

“There are reports of abuse (in the federal system) but very little abuse under Ohio law,” Murphy said.

In Arizona, the Institute for Justice is going through the court system in an attempt to overturn that state's forfeiture law.

The Institute has taken up the case of an elderly Washington state couple, Terry and Ria Platt. who loaned their son a car earlier this year for a vacation trip. Police in Navajo County, Ariz., stopped the car and found drug paraphernalia and some marijuana in it, according to court documents filed in an Arizona Superior Court this month.

The son was never charged with a crime, the Institute for Justice lawsuit said.

The couple is now fighting to get the car back after it was seized while claiming that the state’s asset-forfeiture law is unconstitutional . The law stacks the deck against those not involved in any crime from getting their property back, the claim said.

“Since 2000, Arizona law enforcement has taken in nearly a half-billion dollars through the Arizona forfeiture scheme,” the lawsuit said. “That figure eclipses the amount received by state law enforcement in California, whose population is six times that of Arizona.”

In an unrelated case, the sheriff in Arizona’s Pima County announced last week the indictment and resignation of a senior deputy over allegations of misuse of asset-forfeiture funds.