A move to provide greater protections for Americans’ private-property rights is gaining momentum, with the signing by Gov. John Kasich in Ohio of a new law that requires that criminal charges be filed before police can take an individuals’ assets.
The Heartland Institute, a free-market think tank, said Wednesday that with Kasich’s signing of House Bill 347, Ohio joins a growing number of states – including California, Nebraska, New Mexico and Wyoming – in protecting taxpayers’ due-process and property rights.
About 17 states already have adopted procedures to put the brakes on such seizures.
“Reducing perverse economic incentives, the new law prohibits local governments from using the U.S. Department of Justice’s ‘equitable sharing’ program as a loophole to bypass constitutional protections on property rights in most cases, while still allowing government law enforcement agents to perform their duties and protect people, said Jesse Hathaway, a research fellow and budget/tax expert at the institute.
“Government law enforcement should not be financially motivated, but motivated by a desire to protect and serve taxpayers. Civil asset forfeiture creates an economic incentive to engage in the forfeiture process, perverting the law. This measure reduces that incentive to do wrong and will help protect against the possibility of abuse,” Hathaway said.
“This is a step toward removing the profitability of violating an individual’s inherent property rights, and lawmakers in other states should look to Ohio for ideas on how to solve the civil asset forfeiture problem in their communities,” he said.
The Goldwater Institute previously explained the details of the problem that citizens faced.
“Imagine a law that allowed the government to take your private property without having to prove that you did anything wrong and then rewarded the government agency that seized your property by allowing it to keep the proceeds.”
The institute pointed out that those exact procedures are common across the United States, although some states have started to step back from the precipice.
“Civil asset forfeiture is a legal fiction. Normally when the government alleges criminal wrongdoing the government bears the high burden of proving the allegations beyond a reasonable doubt.
“Forfeiture laws, however, allow the government to initiate a civil case against an inanimate piece of property where the government merely asserts that the property is somehow related to criminal activity, and then the property owner bears the burden of proving his or innocence. In other words, civil asset forfeiture turns the criminal justice system, and the burden of proof that underpins it, on its head.”
There have been cases in which individuals traveling with an amount of cash, to purchase a car or piece of property, for example, have been stopped and the cash has been seized. They then have to go to court to reclaim it and may not be successful. In any case, they must pay the costs of their attorneys for the fight.
The incentive is direct, the analysis explains.
“If the Maricopa County sheriff deputies seize your house, the Maricopa County sheriff’s office keeps it. The agency then uses that property as the agency chooses with very little oversight. This, of course, provides an improper financial incentive for law enforcement to initiative civil seizures even on the flimsiest grounds,” the institute said.
The analysis described what happened in one case:
Rhonda Cox, a sales associate for a local shading company and grandmother of four, is a recent victim of these laws. In 2013, Rhonda purchased a used pickup truck for $6,000. Like most parents, Rhonda occasionally loaned her vehicle to her children. On one occasion, Rhonda’s son drove her truck to a nearby store where he was approached by deputies of the Pinal County sheriff’s department and informed that they suspected him of stealing a cover on the bed of the truck. Deputies then seized the truck and initiated forfeiture proceedings against it.
Once she learned of the incident, Rhonda informed the sheriff’s office that the truck was hers and she had nothing to do with the alleged crime. Rhonda pleaded to have her truck returned. Law enforcement authorities were unsympathetic. Despite knowing that Rhonda owned the truck, and despite knowing she had nothing to do with the alleged theft, the agency refused to return her property. The county attorney assigned to the case then threatened Rhonda with having to pay the government’s attorneys’ fees if she contested the forfeiture.
Unable to afford a lawyer to fight the seizure, and certainly unable to pay high attorneys’ fees if she lost a case where she bore the burden of proof, she gave up and the truck was forfeited. The proceeds of the forfeiture were awarded to the Pinal County sheriff’s department – the same agency that initiated the seizure.
At Reason.com was an explanation of Ohio’s plan.
“Under the Ohio bill prosecutors will be required to charge citizens with certain crimes in order to forfeit their property, although in some instances prosecutors may still do so without filing any charges,” the report said. “It also switches the burden of proof from the defendant to the government to show why property is connected to a crime and bars civil forefieture for amounts under $15,000.”
The report continued: “Significantly, it also bars law enforcement from using federal asset forfeiture laws for seizures under $100,000. Civil liberities groups argue that state and local law enforcement often get around stricter state laws by participating in federal drug task forces, allowing them to use federal forfeiture laws and keep up to 80 percent of the proceeds.”
Law enforcement officials opposed the bill, claiming there are other due process protections for property owners.
from PropagandaGuard https://propagandaguard.wordpress.com/2016/12/29/big-state-joins-17-others-in-reining-in-asset-forfeiture/
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