Civil Asset Forfeiture

Imagine you are a motel owner and local riff-raff has been using your property to sell their illegal drugs. You take every reasonable step to prevent these crimes from being committed on your property – you buy flood lights, put up fences and video cameras. But the buying and selling continues until, one day, your local police and the Feds swoop in to break up the drug ring. In the course of arresting the drug dealers, authorities confiscate your property. Yes, the Feds take your motel from you as part of the crime. Yes, your property (not you) is a part of the crime so the Feds confiscate it and sell it right from under your feet. Adding insult to injury, you get none of the proceeds. Whatever the Feds or local authorities got for the property they kept.

Impossible, you say? No, actually that’s a true story. Welcome to the world of civil asset seizures.

Reasonable people think of asset seizures in the same way we view Pirates of the Caribbean – the bad guys stole something or traded illegally and authorities are simply getting back what was stolen or what goodies were purchased with tainted money. Or think Al Capone during Prohibition – he sells illegal booze, makes a ton of money, buys expensive cars and homes and the Feds arrest him and take back all that stuff he bought with money made illegally. That’s the way most reasonable people understand asset forfeiture. But that’s not always the way it is in practice.

The Fourth Amendment to our Constitution reads, “[t]he 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.”

Clearly, “things” can be seized. The question is, can “things” be seized when no arrest or conviction has taken place. This is the new working definition of civil asset forfeiture – you don’t even have to be arrested or convicted to have property taken from you.

In 2000, Utah voters approved an initiative to define and limit the scope of asset forfeiture. It was passed with 69 percent of the vote. It made clear that any private property seized would be placed in a fund to benefit Utah schools or the general state fund. Law enforcement in the state opposed the initiative and has worked tirelessly ever since to erode its provisions. A bill last legislative session to rectify these erosions passed the House but was stalled in the Senate.

Here is the game of civil asset forfeiture: Law enforcement seizes property, usually cash, sometimes cars, rarely computers or other small hardware, from individuals who may or may not be guilty of a crime, usually a drug-related crime. Many times, in return for no charges, law enforcement agrees to take certain property from the alleged perpetrator. In Utah, the perpetrators are typically small potatoes, no big drug lords or gangland cartels. The average seizure is usually less than a thousand dollars. Law enforcement uses civil law, not criminal law, to extricate the property – civil law has a much lower evidentiary level of proof. The alleged perpetrator, or victim, typically doesn’t want to go to court to collect a few hundred dollars when the court costs alone would amount to more than what was taken. This past year, Utah collected nearly $2 million in seized assets.

A solid law has been abused and perverted by law enforcement. And, in a day and age when law enforcement doesn’t need any more negative publicity, it is time for the state Legislature to get the law back to what it was when the 2000 initiative was approved.

Usually I will take the side of law enforcement in such matters. But the evidence of abuse is overwhelming. I don’t think the abuse is criminal or done with criminal intent. I just think law enforcement simply let this get out of hand. The fact is, in a free society, law enforcement should never be incentivized to “steal” from citizens, especially in the name of justice.

I’m Paul Mero. Thanks for listening.

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