Civil Asset Forfeiture And Private Property

For the non-legal eagles among us, Civil Asset Forfeiture is the legal procedure used by law enforcement officers to seize property that may have been used in the commission of a crime.

Every State has procedures in place for asset forfeiture. All of them are bad.

I want to be clear from the start and state emphatically that “good” Civil Asset Forfeiture laws do not exist. Any time the State seizes private property, for whatever reason, it is a pock mark on the very idea of property ownership.

Governments were instituted by men to protect private property, not to seize it. It must also be understood that no one is forfeiting anything, but rather the property is being forcibly taken from people against their will. That being said, there are some States that have attempted to protect private property, and rein in asset forfeiture abuses. These states only allow seizure after a trial, and only if it can be proven that the property itself was necessary in the commission of a particular crime.

These states also mandate that any proceeds from the sale of seized property go directly into the General Fund of the State government. The State of New Mexico recently tuned up their Civil Asset Forfeiture law and specifically prohibited law enforcement from seizing property absent a trial and court order. The law enforcement officers in New Mexico attempted to circumvent the new law by seizing assets under Federal guidelines, which according to the lawyers from the Law Enforcement Association, they were permitted to do.

Not pleased by the law enforcement officer’s blatant attempt to circumvent the law, the legislature in New Mexico jumped into action and wrote another law specifically prohibiting law enforcement officers in the State from seizing property under Federal laws. My hat is off to the New Mexico Legislature, and shame on the New Mexico law enforcement officers for trying to circumvent State law and take property that does not belong to them.

The really bad versions of Civil Asset Forfeiture allow law enforcement officers to seize property on the spot, with no trial, and without any charges being brought against the property owner. They allow the department that seized the property to keep it within their department, or sell the property and buy niceties with it.

For example, in Tennessee, law enforcement officers can pull you over for speeding and have their canine smell your money. If the dog alerts, then the County Sheriff or town cop that pulled you over can keep the money. They do not have to charge you with a crime. Not even speeding.

It should be noted that numerous studies by accredited scientific researchers discovered that 90% of the bills in circulation, have trace amounts of drugs on them. When paper currencies are transferred from one person to another, such as to a convenience store clerk, to a barber, to a truck driver, to a banker, for several years in a row, it is only logical that at one time during its circulation, it came into contact with someone that handled some sort of drug.

Legal watchdog organizations like the Institute for Justice and the Americans for the Conservation of Liberty claim that the abuses in Mississippi are some of the worst in the nation.

For example, the town of Richland, Mississippi, a town with a population of just 7,000, recently built a new $4.1 million dollar police station with money they acquired through Asset Forfeiture proceedings.

The town of Hattiesburg took over $1.4 million dollars from their citizens in just a six year period. According to Ross Scalise of ACL, Under Mississippi’s Asset Forfeiture Law there is no requirement for police departments to collect or retain data on forfeitures or how they used the proceeds, so it’s really hard to know the extent of the abuse. We were only made aware of the Richland case because the Richland Police department proudly displayed a sign at their new facility which read “Richland Police Department Tearfully Donated by Drug Dealers.”

Because of the lack of transparency, there is no way to know who the drug dealer is, if the drug dealer was prosecuted in court, or even if there was a drug dealer at all.

And it’s not just money being confiscated. It is cars, homes, guns, jewelry, phones and computers. If a police officer pulls you over, and his dog alerts on the cash in your wallet, it is permissible for him to seize not only the cash, but he may seize your car and all of its contents. He doesn’t even have to charge you with a crime.

And if you are lucky enough to be charged with a crime, the burden of proof is on you to prove your innocence. The State Law only requires a “preponderance of evidence” to seize your property. This is substantially easier than the “beyond a reasonable doubt” standard that is normally applied to crimes. Lawyers for the Law Enforcement Associations have no problems meeting the “preponderance of evidence” standard in civil lawsuits. They love the easy standards. It makes it incredibly easy to take your property.

Not only are the Civil Asset Forfeiture laws of this state abusive, they clearly violate several protections listed in the Bill of Rights.

The 5th Amendment to our Constitution says that I cannot be deprived of Life, Liberty, or Property without Due Process of Law. A police officer standing next to my car and pointing his gun at me while demanding my money is not Due Process of Law—not by any stretch of the imagination.

The 5th Amendment further states “Nor shall private property be taken for public use, without just compensation.” This does not only apply to Eminent Domain cases, but it protects all private property seizures. The 6th Amendment states that I have the right to a speedy and public trial, even if Officer Friendly doesn’t want one. The 7th amendment says that I am entitled to a trial by Jury.

It is for these reasons and many others that Mississippi’s Asset Forfeiture Laws receive failing grades. The Institute for Justice scored Mississippi Asset Forfeiture laws a D+ when compared to the other States, and the ACL gave the State a D-.

Please do not think that I am bashing police officers, because I am not.If anyone deserves criticism for these abusive laws, it is our State Legislators. They are the ones that have either passed the laws allowing it, or have failed to pass laws preventing it.

This abuse of Civil Asset Forfeiture can be laid squarely at the feet of the legislators. We can only hope that in the upcoming legislative session they make serious changes to it. The legislature should not only require transparency, but they should demand it, and impose serious fines for failure to comply.

Any attempts of Law enforcement Officers to hide where the money came from, should be dealt with harshly. Furthermore, the legislature should strengthen laws protecting private property in general. They should immediately put a stop to the practice of seizing private property before a trial.

I would also like to see a law that requires any funds, or proceeds from items seized, be placed directly into the General Fund of the State Legislature, and not into the secret bank account of a County Sheriff. It should also change procedure for asset forfeiture and restrict it to criminal proceedings, where the burden of proof is on the State, and must meet the requirements of “beyond a reasonable doubt” instead of the standard required in civil courts of a “preponderance of evidence”.

Unless the legislature gets a grasp on these serious transgressions and violations, we will forever be known as a state that turns a blind eye towards civil rights abuses.

This critical issue is squarely in the hands of our legislators. Let’s hope they do the right thing. And let us push and remind them to do just that.

Danny Bedwell

Danny Bedwell

Contributing Writer
Danny Bedwell retired from the military in 1995. He now lives in Columbus MS with his wife and teenage daughter. He is the State Chairman of the Libertarian Party of Mississippi, former candidate for the US House of Representatives, and a small business owner. He is a frequent speaker at community and collegiate functions across Mississippi on the topics of taxation and Constitutional governance.
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