New Jersey adopts limited civil forfeiture reform

New Jersey Is Now The 16th State To Require Convictions For Civil Forfeiture - Nick Sibilla, Institute for Justice, Forbes:

January 28, 2020 - "New Jersey became the latest state to protect individuals from civil forfeiture, which lets police and prosecutors confiscate property without ever having to charge someone with a crime. Signed by Gov. Phil Murphy last week, under the new law (A.4970), prosecutors will need to secure a criminal conviction to forfeit property valued at or below $10,000, or less than $1,000 in cash. Any property seized under those thresholds will have to be returned if an owner is acquitted, or if prosecutors dismiss or don’t bring charges....

"The state’s new conviction requirements should apply to the overwhelming majority of property confiscated by New Jersey law enforcement. Data analysis by the Institute for Justice found that between 2014 and 2018, county prosecutors forfeited over 1,200 vehicles, more than 90% of which were worth $10,000 or below....

"Unfortunately, the bill is hampered by limitations. First, at $1,000 for cash and $10,000 for all other property, the state’s conviction thresholds are some of the lowest in the nation.... A.4970 does not apply to cases where no one has filed a claim for the seized property. Since hiring an attorney often costs more than the property itself, very few have the means to fight back in court.... Nor does A.4970 address the Garden State’s perverse financial incentives for law enforcement. Incredibly, once property has been auctioned off, local agencies can retain up to 100% of the proceeds. Thanks to this motivation to police for profit, forfeiture has generated nearly $63 million in proceeds for police and prosecutors.

"A better option would be to follow the lead of Nebraska, New Mexico and North Carolina and abolish civil forfeiture. In those states, property is confiscated with criminal forfeiture.... [C]ivil forfeiture cases are civil proceedings [in which] owners aren’t guaranteed the same protections for due process as they are in criminal cases,...

"Critically, for civil forfeiture, owners must file a claim for their property or risk permanently losing it. Yet onerous red tape, the high cost of litigation, and even concerns about potential law enforcement retaliation deter the overwhelming majority from going to civil court.....By contrast, for criminal forfeiture, ... suspects do not have to file their own claim for their property and if the government fails to act, the property won’t be forfeited."

Read more: https://www.forbes.com/sites/nicksibilla/2020/01/28/new-jersey-is-now-the-16th-state-to-require-convictions-for-civil-forfeiture/#57f8294677fd
'via Blog this'

Montana school choice fight goes to SCOTUS

Constitutional showdown: Montana school choice case heads to U.S. Supreme Court | News | bozemandailychronicle.com - Gail Schontzler:

January 19, 2020 - "The U.S. Supreme Court will hear oral arguments Wednesday in a lawsuit brought on behalf of Kendra Espinoza and two other Kalispell-area mothers whose children attend Stillwater Christian School. Their lawsuit against the Montana Department of Revenue concerns a school choice program that ... provided $3 million a year to be spent on tax credits for individuals and business taxpayers who donated up to $150 to a new scholarship program for private school students.

"The Montana Supreme Court ruled the program violated the state’s constitution, which bars spending any public money directly or indirectly to support religious schools [and] struck down the entire scholarship program, a decision now being challenged in the nation’s highest court.

"The scholarship program is small, helping about 40 or 50 students a year — 94% of whom attend Christian schools, according to court filings. But the potential impact of the Espinoza case is huge. The Institute for Justice, the nonprofit legal advocacy group that has represented the Kalispell mothers from the start of their lawsuit, called it 'one of the most important education reform cases in the past half century'....

"The Institute for Justice — which has received funding from billionaires Charles and David Koch and the Walton and DeVos families — argues this case could stop Montana’s discrimination against religious options, uphold the free exercise of religion and expand school choice.  Opponents, including the nation’s two largest teachers’ unions and liberal groups, argue the Espinoza case threatens public schools and the basic principle of separation of church and state..... Thirty-seven states have constitutional language similar to Montana’s barring aid to religious schools....

"The U.S. Supreme Court is expected to issue a ruling this summer.... Supreme Court rulings in recent years have moved in the direction of allowing public funds to benefit religious schools. In 2017 the court ruled in the Trinity Lutheran Church case that the state of Missouri violated the First Amendment when it excluded churches from a state program to make playgrounds safer because of the state constitution’s strict separation of church and state..... Chief Justice John Roberts ... added, however, that this decision does 'not address religious uses of funding or other forms of discrimination.'"

Read more: https://www.bozemandailychronicle.com/news/constitutional-showdown-montana-school-choice-case-heads-to-u-s/article_e75727cf-8e45-5adc-981e-ab5435d353ec.html
'via Blog this'

SC judge rules civil forfeiture unconstitutional

South Carolina Judge Declares Civil Forfeiture Unconstitutional - Nick Sibilla, Forbes:

October 22, 2019 - "Letting South Carolina police and prosecutors seize and keep cash, cars, and other valuables and use the proceeds to pad their budgets violates the Fifth, Eighth, and Fourteenth Amendments, a circuit court judge in Horry County, South Carolina ruled. In a 15-page decision, 15th Judicial Circuit Judge Steven H. John declared that South Carolina’s civil forfeiture laws, which let the government 'seize unlimited amounts of cash and other property when no crime has been committed,' run afoul of the U.S. and South Carolina Constitutions’ guarantees of due process and bans on excessive fines.

"The court’s decision comes on the heels of a wide-ranging, multi-part investigation into civil forfeiture by the Greenville News. Across the state, South Carolina agencies seized $17.6 million between 2014 and 2016. More than 1,500 individuals (or roughly 40% of all forfeiture cases in the state) had their property taken, despite never [being] convicted of a crime. Their reporting further found that '65 percent of all money police seize is from black males' (like the defendant in the Horry County decision, Travis Lee Green), even though African American men account for a mere 13% of the state’s population.

"Galvanized by the investigation, South Carolina lawmakers, led by Rep. Alan Clemmons, backed legislation that would completely abolish civil forfeiture. Unfortunately, the bill ... stalled. A fully revised version is expected for next year’s session....

"This past February, in a landmark case litigated by the Institute for Justice, the U.S. Supreme Court unanimously ruled that the Eighth Amendment’s ban on 'excessive fines' applies to cities and states, not just the federal government..... Following the decision, Judge John asked attorneys for the Solicitor’s Office and Green to each 'submit a brief outlining the constitutionality of the South Carolina civil forfeiture statute.' Fully briefed, in August, Judge John excoriated South Carolina’s civil forfeiture laws, which 'place the burden on the property owner to prove their innocence' and grant the government 'unfettered authorization to seize unlimited amounts of property from citizens without regard to the proportionality of the offense committed'...

"Under state law, the seizing agency gets the first $1,000 of any cash seized, as well as 75% of the remainder. Prosecutors receive 20% of the proceeds, with the remaining 5% sent to the state’s general fund. Law enforcement agencies can then use forfeiture proceeds to cover program expenses (like salaries for forfeiture officials). According to Judge John, 'South Carolina forfeiture programs have de facto power over their own spending' [which] creates 'an institutional incentive for forfeiture program officials to vigorously pursue forfeitures' that violates the constitutional right to due process."

Read more: https://www.forbes.com/sites/nicksibilla/2019/10/22/south-carolina-judge-declares--civil-forfeiture-unconstitutional/#441640f22135

'via Blog this'

Mow your lawn or lose your home in Dunedin FL (video)

Stossel: Mow Your Lawn or Lose Your House! – Reason.com - John Stossel:

July 9, 2019 - "Jim Ficken left his home to take care of his recently deceased mother's estate. While away, the man he paid to cut his lawn died. The grass in Ficken's yard grew more than 10 inches long.

"The City of Dunedin has an ordinance against long grass. The Florida city fined Ficken $500 a day. Over time the fines added up to almost $30,000.... Ficken doesn't have $30,000, and now the city wants to foreclose on his home.

"Ficken's lawyer, Ari Bargil of the Institute for Justice, points out that the city could have 'hire[d] a lawn service to come out and mow the grass, and send Jim a bill for 150 bucks, but they didn't do that.' The reason, says Bargil, is that the city 'wants the money. Code enforcement is a major cash cow for the city.' Dunedin collected $34,000 in fines in 2007. Last year, the fines ballooned to $1.3 million.

"Bargil argues Dunedin's big fines violate the 8th Amendment. That protects us not only from cruel and unusual punishment but [also] from 'excessive fines.' Stossel agrees. What's more excessive than politicians taking your home because you didn't cut your grass?

Read more: https://reason.com/video/stossel-mow-your-lawn-or-lose-your-house/

'via Blog this'

Florida legalizes front-yard vegetable gardens

After 6-Year Fight, Florida Couple Wins Right to Grow Veggies at Home – Reason.com - Billy Binion:

July 5, 2019 - "Vegetables are ugly. Or at least that's the view of the officials in Miami Shores, Florida, who implemented a ban on front-yard vegetable gardens at residential properties in 2013. The ordinance forced Hermine Ricketts and her husband, Laurence Carroll, to uproot the garden they'd maintained for nearly two decades.

"Now they can start planting again: The Florida legislature has passed a bill shielding vegetable gardens from local prohibitions. "After nearly six years of fighting…I will once again be able to legally plant vegetables in my front yard," Ricketts said in a statement. "I'm grateful to the Legislature and the governor for standing up to protect my freedom to grow healthy food on my own property."

"The Institute for Justice filed a lawsuit on Ricketts' behalf in 2013. Florida's Third District Court of Appeals upheld the ban, and the state's Supreme Court declined to hear the case. So Ricketts and the institute lobbied the legislature, and it passed a law effectively invalidating the local ordinance. Gov. Ron DeSantis signed it last week.

"How were city commissioners able to pass the rule in the first place, much less get it past an appeals court? It was billed as a zoning regulation, which cities have near-unlimited power in implementing. The Florida League of Cities opposed Ricketts' efforts until the end, arguing that code enforcement is an essential tool for maintaining a town's aesthetic. They also didn't like the idea of a state government preempting measures adopted at the local level.

"Ricketts now uses a wheelchair and has suffered from a litany of health issues in recent years, which she blames on stress induced by the legal battle. She's hoping that a little gardening might be the medicine she needs."

Read more: https://reason.com/2019/07/05/after-6-year-fight-florida-couple-wins-right-to-grow-veggies-at-home/
'via Blog this'

Congress limits IRS power to seize accounts

Congress Passes Bill to Protect Small-Business Owners from IRS Seizures - Institute for Justice - Nick Sibilla:

June 14, 2019 - "Yesterday, the U.S. Senate unanimously approved legislation that stops the Internal Revenue Service from raiding the bank accounts of small-business owners. The Clyde-Hirsch-Sowers RESPECT Act, passed as part of the Taxpayer First Act (H.R. 3151), is named after Institute for Justice clients Jeff Hirsch and Randy Sowers, two victims of the IRS’s aggressive seizures for so-called 'structuring.' Through structuring laws, the IRS has routinely confiscated cash from ordinary Americans simply because they frequently deposited or withdrew cash in amounts under $10,000. And by using civil forfeiture, the IRS can keep that money without ever filing criminal charges.

"The RESPECT Act was originally introduced by Reps. John Lewis (D-GA) and Doug Collins (R-GA) after Jeff and Randy testified before the House Ways and Means Oversight Subcommittee about their experiences: Jeff had over $400,000 seized from his convenience store distribution business on Long Island while Randy, a Maryland dairy farmer, lost $29,500 to the IRS. Neither man was ever charged with a crime. Both Jeff and Randy ultimately recovered their wrongfully taken money, but only after years of legal proceedings and high-profile media coverage....

"The Taxpayer First Act previously passed the House by voice vote on June 10. It now heads to President Donald Trump for signature.

"To rein in the IRS’ civil-forfeiture power, the Clyde-Hirsch-Sowers RESPECT Act would:

• Limit forfeiture for currency 'structuring' only when the funds in question are derived from an illegal source or used to conceal illegal activity. This would codify an IRS policy change from October 2014 prompted by lawsuits from the Institute for Justice and would prevent the agency from backtracking;
• Allow property owners to challenge a seizure at a prompt, post-seizure hearing. Previously, property owners targeted for structuring had to wait months or even years to present their case to a judge.....

"'The Clyde-Hirsch-Sowers RESPECT Act is an important first step to address one type of forfeiture abuse by one federal agency,' [Institute for Justice Senior Attorney Darpana] Sheth noted. 'But civil forfeitures by other agencies continue unabated. With today’s vote revealing a broad consensus, Congress should seize the opportunity to pass comprehensive reform of federal forfeiture laws and protect the constitutional rights of all Americans'....

"Forfeiture reform is the rare political issue that transcends party lines. The national platforms for both the Democratic and Republican Parties have endorsed forfeiture reform, as have the editorial boards for over 135 different newspapers. In February, the U.S. Supreme Court unanimously ruled that state civil forfeiture cases are bound by the Eighth Amendment’s ban on 'excessive fines.' And in the past five years, 33 states and the District of Columbia have enacted forfeiture reforms."

Read more: https://ij.org/press-release/congress-passes-bill-to-protect-small-business-owners-from-irs-seizures/

'via Blog this'

Forfeiture doesn't fight crime or reduce drug use, study finds

Study Shows Asset Forfeiture Doesn't Fight Crime Or Reduce Drug Use - Tim Cushing, Techdirt:

 June 14, 2019 - "Many law enforcement officials may actually believe the [bs] they spill in defense of taking property from people without convicting them of crimes. .... Fortunately, those opposed to the abusive practice will have even more facts to work with, thanks to a new study [PDF] by Dr. Brian D. Kelly of the Institute for Justice [IJ]....

More equitable sharing funds do not translate into more crimes solved [Dr. Kelly writes]. This suggests that despite claims forfeiture turns criminals’ cash into more resources for law enforcement, the additional revenue is not improving overall police effectiveness in crime fighting. More equitable sharing funds also do not mean less drug use, even though proponents argue forfeiture helps rid the streets of drugs by financially crippling drug dealers and cartels....

"That ... forfeiture allows agencies to purchase the tech and tools they need to fight crime successfully – is disproven by the lack of results..... Using law enforcement data, the IJ can't find any link between asset forfeiture and law enforcement efficiency.....

"[T]hat forfeiture cripples drug dealers and cartels – also has no factual basis.... Using the National Survey on Drug Use and Health (NSDUH) carried out by the Substance Abuse and Mental Health Services Administration (SAMHSA), the IJ found no correlation between asset forfeiture and reductions in drug use, suggesting drugs are still just as easy to obtain....

[Of [t]The four NSDUH drug use measures I used were (1) use of any illicit drug in the previous year, (2) marijuana use in the previous year, (3) nonmedical use of prescription pain relievers in the previous year and (4) cocaine use in the previous year. For none of these illicit drug use measures did I find increases in equitable sharing proceeds led to subsequent reductions in use. In short, to the extent forfeiture advocates hope increasing enforcement through forfeiture will reduce drug use, this does not appear to be happening....

"What the report did find is something unexpected: the more financially-stressed an area is, the more likely it is law enforcement will make it worse. Forfeitures increase as unemployment increases, suggesting financially-strapped agencies are stepping up forfeiture efforts to make up for budget shortfalls.

In every case, I found that higher unemployment predicted more equitable sharing activity..... For equitable sharing overall ...  a 1 percentage point increase in unemployment was associated with an 8.5 percentage point increase in the value of forfeited assets and a 9.5 percentage point increase in the number of assets seized....

"The study confirms what's always been suspected: asset forfeiture directly enriches law enforcement agencies but provides zero benefit to the communities the agencies serve."

Read more: https://www.techdirt.com/articles/20190613/05204642392/study-shows-asset-forfeiture-doesnt-fight-crime-reduce-drug-use.shtml

Albuquerque civil forfeiture struck down on appeal

Cops Can't Ignore New Mexico's Ban On Civil Forfeiture, Court Rules - Nick Sibilla, Forbes:

December 19, 2018 - "The city of Albuquerque cannot confiscate cars without a criminal conviction and must comply with a New Mexico state law that abolished civil forfeiture, the New Mexico Court of Appeals ruled this month. Under a vehicle seizure ordinance intended to combat drunk driving, Albuquerque seized hundreds of cars from innocent owners and freely admitted that “about half of the vehicles” taken “are not owned by the offender that we confiscate it from.” Confiscations were so lucrative, program revenue frequently exceeded expenses, giving police and prosecutors their own slush fund worth millions of dollars.

"Writing for a unanimous court, Judge Stephen French ruled that Albuquerque’s forfeiture program was 'wholly contrary to the language and spirit' of New Mexico’s reform, which preempted the city's ordinance 'in its entirety.' This decision joins a landmark ruling from late July that declared Albuquerque’s forfeiture program unconstitutional.

“'When we came into office, I halted vehicle forfeitures' ... Albuquerque Mayor Tim Keller said in a statement. 'During this time, our police department has ramped up other effective DWI prevention efforts to combat drunk driving and make our city safer.'

"Back in 2015, state lawmakers unanimously passed the New Mexico Forfeiture Act (NMFA) after several New Mexico law enforcement officials were caught on camera making outrageous comments about civil forfeiture. This landmark law abolished the practice throughout the state.... But several cities, including Albuquerque, Santa Fe, and Las Cruces, refused to comply. These municipalities continued to seize cars under their existing ordinances, which lacked the protections now guaranteed by state law....

"From fiscal 2009 to 2016, Albuquerque collected $11.8 million in revenue from its forfeiture program, with $3.7 million spent on salaries and benefits for the DWI Seizure Unit. Forfeiture revenue even funded the paychecks of the city attorneys who prosecuted forfeiture cases...

"To justify its noncompliance, Albuquerque argued that municipalities could 'opt-in' to the NMFA.... But Judge French ... cited the NMFA’s purposes, which explicitly stated that the law was enacted to 'ensure that only criminal forfeiture is allowed in this state.' The continued existence of Albuquerque’s civil forfeiture program 'subverts the NMFA’s clearly stated purpose'....

"In the wake of the decision, Santa Fe suspended its own DWI vehicle forfeiture program last week, which was the second largest in the state. Since the NMFA went into effect in 2015, Santa Fe seized nearly 1,600 vehicles, auctioning off 362 of them."

Read more: https://www.forbes.com/sites/nicksibilla/2018/12/19/cops-cant-ignore-new-mexicos-ban-on-civil-forfeiture-court-rules/
'via Blog this'

Seattle suit against warrantless rental inspections

Mandatory Warrantless Rental Inspections Inspire Seattle Lawsuit - Hit & Run : Reason.com - Scott Shackford:

December 5, 2018 - "In an alleged effort to root out slumlords, some cities treat renters as though they don't have any rights, forcing residents to allow government officials in for mandatory warrantless 'inspections' to make sure homes are up to code. The lawyers at the Institute for Justice, a national public interest law firm, have ... filed a class-action complaint against the city of Seattle that attempts to put a stop to its inspection program.

"According to their lawsuit, Seattle launched an inspection program in 2015 that requires landlords to register rental properties with the city. The city then randomly chooses 10 percent of the rental properties to inspect each year. This includes inhabited apartments and houses.....

"In July, according to the lawsuit, a group of renters sharing a home wrote city officials telling them that they do not consent to a search of their property. The owner of the home also wrote to let the city know that she was respecting her tenants' wishes. The city responded that if the landlord refused to let the inspectors in, she faced penalties of $150 a day for the first 10 days, and then $500 a day afterward. Seattle did not even respond to the letter from the tenants.

"The Institute for Justice is now representing both tenants and landlords in these cases to try to stop unwarranted inspections under the city's law, arguing that it violates the privacy provisions of the Washington Constitution....

"The Institute for Justice wants the city to have to show probable cause that there are code violations within somebody's home before it can demand access. The group is asking for Seattle's inspection system to be declared unconstitutional and for an injunction to be put in place stopping warrantless searches without a tenant's consent.

"This suit has been filed under Washington's Constitution rather than under the Fourth Amendment to the U.S. Constitution because the state has additional privacy protections that are a little broader.... It was actually under Washington's Constitution in 2016 that another group of property-rights-protecting lawyers, the Pacific Legal Foundation, stopped Seattle from snooping through people's trash to make sure they were separating out their food waste."

Read more: https://reason.com/blog/2018/12/05/mandatory-warrantless-rental-inspections
'via Blog this'

71% vote to keep Bolick on AZ Supreme Court

Clint Bolick, Arizona’s Libertarian Supreme Court Justice, Wins Judicial Retention Election - Hit & Run : Reason.com - Damon Root:

November 7, 2018 - "The Arizona electorate has voted overwhelmingly in favor of letting a libertarian jurist keep his seat on the state's highest court. As the Arizona Republic reports, state Supreme Court Justice Clint Bolick handily won his judicial retention election yesterday by a lopsided margin of 71 percent to 29 percent.

"Bolick, a pioneering libertarian lawyer and co-founder of the Institute for Justice, was appointed to the Arizona Supreme Court in 2016 by Republican Gov. Doug Ducey. Under the terms of the Arizona constitution, a state Supreme Court justice must stand in a judicial retention election two years after being appointed to the bench, and then stand again every six years after that.

"It's worth noting that Bolick prevailed in yesterday's vote despite the best efforts of the liberal National Education Association, which funded anti-Bolick activities in an attempt at payback over Bolick's vote in a case that the Arizona Capitol Times has described as 'a ruling that knocked a tax hike for education off the ballot.' Unfortunately for these liberal activists, they have now lost soundly in both the courtroom and in the court of public opinion.

"Bolick has already amassed an impressive record on the Arizona Supreme Court in the past two years and will no doubt continue to build upon it in the years to come."

Read more: https://reason.com/blog/2018/11/07/clint-bolick-arizonas-libertarian-suprem
'via Blog this'

Philadelphia police agree to end policing for profit

Philadelphia Grants Reparations to Victims of Police Civil Asset Forfeiture - CityLab - Brentin Mock:

September 18, 2018 - "Philadelphia ... has agreed to considerably scale back its policies on when and how police can seize private property from civilians. Up until now, Philadelphia police could confiscate a person’s cash, car, or house — evicting people with little notice — if there was suspicion that the person might be associated with a crime.

"Called civil asset forfeiture and dubbed by opponents as 'policing for profit', the practice was a mechanism for padding police coffers and salaries with the funds generated from these confiscations. Meanwhile, the person whose assets were taken would have to prove they were innocent of whatever crime they were suspected of to begin a cumbersome process for reclaiming their property. In one case, Norys Hernandez almost lost her home to police after they arrested her nephew on a drug violation that she was unaware of.

"Under a new consent decree agreement announced Tuesday, police and prosecutors can only seize people’s assets under a very limited set of circumstances — mainly if they can prove that it is evidence for a major criminal case — but those seized assets cannot be used to pay for police salaries or expenses. Also under the new agreement, the victims of past civil asset forfeiture abuse are entitled to reparations.

"The consent decree is the result of a lawsuit filed four years ago by the criminal justice reform organization Institute for Justice against the city.... Philadelphia was taking advantage of Pennsylvania’s law that allowed law enforcement agencies to keep 100 percent of proceeds and property seized from criminal suspects, even without a conviction. A new state law went into effect last summer ... but it falls far short of the kind of reforms that the city of Philadelphia just agreed to, which include:

• "Police now have to provide a detailed receipt of the property seized to the person they seized it from. The receipt must include instructions on how that person can retrieve their property.
• Court forfeiture proceedings papers must be filed within 90 days of a person’s assets being seized or else the assets must be returned. A person can file for immediate return of their property if they depend on it to live or work — a car, for instance, for those who work for Uber or Lyft as their primary job.
• Whereas before prosecutors controlled court forfeiture hearings, now that control belongs to judges. Prosecutors can no longer threaten taking a person’s property for not making repeated returns to court, and property owners can file for a continuance if they can’t make a hearing.
• Instead of using seized assets to pay for police salaries or new equipment, funds will now be given to community-based drug rehab programs.

"A $3 million fund has been set up to help people recoup what police took from them, and also to compensate them for being wronged. People who submit a qualifying claim in time will receive at least $90 for having their rights violated. All cash and property will be returned to those who never ended up convicted of a crime."

Read more: https://www.citylab.com/equity/2018/09/policing-for-profit-in-philadelphia-finally-comes-to-an-end/570622/
'via Blog this'

Civil forfeiture unconstitutional, federal judge rules

Judge Rules Albuquerque Civil Forfeiture Law Unconstitutional, Upholds Innocent Until Proven Guilty - Forbes - Nick Sibilla, Institute for Justice:

August 1, 2018 - "In a landmark decision, a federal court ruled that Albuquerque’s civil forfeiture program 'violates procedural due process' because it forced hundreds of property owners to prove their own innocence.... Judge James Browning also found that the city’s 'forfeiture officials have an unconstitutional institutional incentive to prosecute forfeiture cases'.…

"Back in 2014, the Institute for Justice and The New York Times exposed a vehicle forfeiture conference where New Mexico law enforcement officials made a series of startling statements, including calling civil forfeiture a 'gold mine' that offered 'little goodies.' Spurred in part by those Kinsley gaffes, lawmakers unanimously approved legislation to abolish civil forfeiture throughout the state. When the law took effect in July 2015, New Mexico became the second state (following North Carolina) to only allow criminal forfeiture, which requires a criminal conviction to forfeit property. Yet Albuquerque refused to comply with the new state law, and continued to seize cars under its municipal forfeiture ordinance....

"Arlene [Harjo] had to fight to save her car from civil forfeiture, almost a year after New Mexico had abolished the practice.... Unlike criminal cases, where defendants are presumed innocent and the government must bear the burden of proof, under Albuquerque’s civil forfeiture ordinance, Arlene had to prove her innocence....

"Arlene joined with the Institute for Justice and sued the city in August 2016 to win back her car. Just a few months after she filed her lawsuit, Albuquerque returned her car [but] her challenge continued, culminating in her legal victory on Saturday....

"Judge Browning declared that the city’s forfeiture program was unconstitutional for two main reasons. First ... Albuquerque’s forfeiture program 'violates due process by depriving car owners of their property unless they prove their innocence,' which creates an 'unconstitutional risk of an erroneous deprivation.' He cited the U.S. Supreme Court’s decision in Nelson v. Colorado, which invalidated a Colorado law that required criminal defendants whose convictions had been overturned to prove their innocence in order to recover court costs and fees.....

"Second ... the city has 'an unconstitutional institutional incentive to prosecute forfeiture cases because, in practice, the forfeiture program sets its own budget and can spend, without meaningful oversight, all of the excess funds it raises from previous years'....

"As the U.S. Supreme Court ruled almost 40 years ago in Marshall v. Jerrico, 'A scheme injecting a personal interest, financial or otherwise, into the enforcement process may ... in some contexts, raise serious constitutional questions'....  Directly quoting from the Marshall decision, Browning concluded that there is a ‘realistic possibility’ that forfeiture officials’ judgment ‘will be distorted by the prospect of institutional gain'."

Read more: http://gdspoliticalanimal.blogspot.com/2018/08/civil-forfeiture-unconstitutional-nm.html
'via Blog this'

SCOTUS to hear 'excessive' civil forfeiture case

Supreme Court Will Decide If Civil Forfeiture Is Unconstitutional, Violates The Eighth Amendment - Nick Civilla, Forbes:

June 19, 2018 - "For the first time in over 20 years, the U.S. Supreme Court will have the opportunity to review the constitutionality of civil forfeiture laws, which allow the government to confiscate cash, cars, and even homes. On Monday, the court granted a cert petition from Tyson Timbs, who was forced to forfeit his $40,000 Land Rover in civil court to the State of Indiana, after he pled guilty to selling less than $200 worth of drugs.....

"Determined to keep his truck, Tyson argued that forfeiting the Land Rover would violate the Eighth Amendment’s ban on 'excessive fines.' A trial judge agreed, and rejected the forfeiture as 'grossly disproportional.' Under Indiana law, a felony conviction could trigger a maximum fine of $10,000 — less than a quarter of what Tyson’s Land Rover was worth. That decision was upheld by an appellate court.

"But in November, the Indiana Supreme Court reversed that decision, and instead ruled that the Constitution’s Excessive Fines Clause provided no protection to Hoosiers ... 'because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment'.... With this decision, the Indiana Supreme Court found itself at odds with 14 other state high courts and two federal appellate circuit courts, which had all ruled that the Excessive Fines Clause does, in fact, apply to the states....

"In January, Tyson and the Institute for Justice, a public interest law firm, filed a cert petition urging the U.S. Supreme Court to take the case and overturn the Indiana Supreme Court’s ruling. Their efforts earned support from all across the political spectrum, with the Southern Poverty Law Center, the Cato Institute, the U.S. Chamber of Commerce, and the National Association for Criminal Defense Lawyers, all filing briefs in support of Tyson and IJ’s petition.

"With the petition now granted, the U.S. Supreme Court will decide once and for all whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment."

Read more: https://www.forbes.com/sites/nicksibilla/2018/06/19/supreme-court-will-decide-if-civil-forfeiture-is-unconstitutional-violates-the-eighth-amendment/#238403b71653
'via Blog this'

Albuquerque to comply with NM forfeiture ban

Three Years After New Mexico Banned Civil Forfeiture, Albuquerque Finally Ends It - Hit & Run : Reason.com:

April 12, 2018 - "Albuquerque resident Arlene Harjo's case started out like thousands of others: a seized car, claims of unfairness, and indifference from city officials. But two years later, ... Albuquerque announced this week that it will end the program following a federal judge's recent decision to allow Harjo's lawsuit against the city to proceed. 'Given changes in state law and recent court rulings, it's time to update the city's policy on vehicle seizures,' Albuquerque Mayor Tim Keller said in a statement....

"Under typical civil asset forfeiture laws, police can seize property they claim is connected to criminal activity, whether or not the owner is charged with a crime, and keep some or all of the proceeds..... Bipartisan concern about those issues led New Mexico to essentially ban civil asset forfeiture in 2015. The law, unanimously approved by the legislature and signed by Republican Gov. Susan Martinez, allows forfeiture only when there is an accompanying criminal conviction.

"Albuquerque ignored the reforms, however, arguing that its forfeiture ordinance was not pre-empted by the new law. At the time, the city was seizing about 1,000 cars a year from residents....One of those residents was Harjo, whose car was seized after her son drove it while drunk. In 2016, with help from the Institute for Justice, she filed a federal lawsuit, arguing that the city's lucrative vehicle seizure program conflicted with state law and was ... in violation of her 14th Amendment due process rights....

"Albuquerque returned her car in 2016 in an attempt to render her lawsuit moot and keep its program intact. But in a March 30 opinion, U.S. District Judge James Browning allowed the case to proceed, warning the city that Harjo had raised plausible claims that the city's profit incentive in seizing cars and its hearing process violated her constitutional rights.

"Browning said Albuquerque's ordinance unconstitutionally forced owners to prove themselves innocent. 'The Court concludes that the Forfeiture Ordinance's innocent owner defense violates due process,' he wrote, ... 'and there is a significant risk of erroneous deprivation flowing from placing the burden of proof on innocent owners.' Browning also concluded that New Mexico's reforms pre-empted Albuquerque's ordinance but dismissed that claim to allow state courts to sort the issue out."

"Robert Everett Johnson, an attorney at the Institute for Justice, which is representing Harjo, says the mayor's announcement "is a welcome change in the city's position."

"'For years Albuquerque refused to abide by state law,' he continued. 'Now we have to see if the city council will walk the walk and fully embrace the New Mexico Forfeiture Reform Act, including getting rid of policing for profit altogether. We're going to keep on fighting to vindicate not only Arlene's rights, but the constitutional rights of everyone in Albuquerque and New Mexico.'"

Read more: https://reason.com/blog/2018/04/12/three-years-after-new-mexico-banned-it-a
'via Blog this'

Musician gets back $91K seized via civil forfeiture

Wyoming police took an innocent man's $91,800. After a Vox report, he will get it back. - Vox - German Lopez:

December 1, 2017 - "Phil Parhamovich is getting his $91,800 in cash back — just hours after Vox broke the story of how the Wyoming Highway Patrol seized the money without charging him with a serious crime....

"Parhamovich was stopped in March this year while traveling on the I-80 in Wyoming during a concert tour with his band, the Dirt Brothers. Parhamovich, who has no criminal record, was not accused of or charged with a serious crime; he only got a $25 ticket for improperly wearing his seat belt and a warning for 'lane use.'

"But Wyoming law enforcement officers found and eventually seized the $91,800 in cash, as it was hidden in a speaker cabinet — by getting Parhamovich, under what he claims was duress, to sign away his interest in the money through a waiver. According to Parhamovich, police pushed him to sign the waiver after he said the money was not his, following aggressive questioning that he said made him fear that carrying that much cash is illegal. (It is not.)

"Parhamovich intends to use the money as a down payment to buy a music studio in Madison, Wisconsin, called Smart Studios, where Nirvana and the Smashing Pumpkins recorded songs. Without the cash, Parhamovich was worried that the deal for the studio could fall through after a nine-month lease expired. But now he’s able to move forward with closing the deal.

"Parhamovich and Anya Bidwell, one of his attorneys with the Institute for Justice, showed up at a Friday court hearing not quite sure what to expect. They were met by legislators from Wyoming, who had read Vox’s story and reached out to the Institute for Justice to see what they could do to help. According to Bidwell and one of the state legislators who was present, the judge agreed that if Parhamovich was willing to testify that the money was his, he would order the state to give the money back. When Parhamovich agreed to that, the judge ruled in his favor....

"Parhamovich’s case was unique in that police seemed to bypass civil forfeiture law — including reforms enacted by Wyoming in 2016 — by getting him to sign a waiver that supposedly gave up his interest in the cash. Despite the waiver, the state will now be forced to give Parhamovich his money back....

"While Parhamovich and his attorneys were celebratory following the judge’s decision on Friday, Bidwell offered a cautionary note.

"'Not everybody can find the Institute for Justice, and not everyone can just raise hell about this kind of stuff,' she told me. 'So even though today’s hearing was very successful, it still doesn’t remedy the bigger issue. Civil forfeiture is still a problem. They shouldn’t be able to take anybody’s property without accusing them of a crime.'"

Read more: https://www.vox.com/policy-and-politics/2017/12/1/16726084/phil-parhamovich-cash-wyoming-civil-forfeiture
'via Blog this'

Indiana's civil forfeiture law ruled unconstitutional

Federal Judge Rules Indiana Seizing Cars With Civil Forfeiture Is Unconstitutional - Nick Sibilla, Institute for Justice - Forbes:

August 31, 2017 - "In a major win for private property rights, a federal judge ruled that Indiana can no longer seize vehicles under its controversial civil forfeiture laws, which allow police to confiscate property without filing criminal charges. Judge Jane Magnus-Stinson ruled that Indiana's laws were unconstitutional because they failed to provide a timely hearing for the property owner to contest the seizure.

"The decision comes just days after Hoosier lawmakers held a summer study committee to discuss forfeiture reform, and less than a month after U.S. Attorney General Jeff Sessions announced a new policy to expand police seizures nationwide.

"The case began last September when an officer with the Indianapolis Metropolitan Police Department pulled over Leroy Washington and found a small amount of cannabis. Police charged Washington with dealing marijuana and seized his car.... Washington ... filed a federal class-action lawsuit last November on behalf of other owners whose cars were held by law enforcement in Indianapolis. Between November 2016 and February 2017, those agencies seized at least 169 vehicles, or 11 cars per week on average.

"The lawsuit claimed that Indiana’s forfeiture laws violated the car owners’ right to due process, as guaranteed by the Fifth and Fourteenth Amendments. In Indiana, once property is seized, law enforcement can take up to 180 days to file a forfeiture complaint [and] the property owner cannot challenge the seizure during that months-long hold period. That is because, under state law, seized property is 'not subject to replevin,' a process that would allow the owners to regain wrongfully taken property while awaiting trial....

"As Judge Magnus-Stinson noted, losing one’s car for months on end 'could cause significant hardship'.... In order to prevent 'erroneous deprivation' and to safeguard due process, property owners must be 'provided with some sort of mechanism through which to challenge whether continued deprivation is justifiable.' But Indiana’s forfeiture laws ban replevin and do not allow any other 'opportunity for interim relief'....

"'Allowing for the seizure and retention of vehicles,' she wrote, 'without providing an opportunity for an individual to challenge the pre-forfeiture deprivation [is] unconstitutional.'"

Read more: https://www.forbes.com/sites/instituteforjustice/2017/08/31/federal-judges-rules-indiana-seizing-cars-with-civil-forfeiture-is-unconstitutional/#4b4cfc723da5
'via Blog this'

Civil forfeiture without a conviction banned in CT

Connecticut Banned Civil Forfeiture Without A Criminal Conviction - Nick Sibilla, Institute for Justice - Forbes:

July 11, 2017 - "Connecticut Gov. Dannel Malloy signed HB 7146 on Monday, which curbs the state’s civil forfeiture laws. Not only did the bill earn endorsements from the Yankee Institute for the Public Policy and the state chapter of the ACLU, HB 7146 even passed both the House and the Senate without a single no vote.

"Under the new law, in order to permanently confiscate property with civil forfeiture, the property must be first seized in connection to either a lawful arrest or a lawful search that results in an arrest. If prosecutors do not secure a guilty verdict, a plea bargain or a dismissal from finishing a pretrial diversion program, the government must return the property to its rightful owner.... Connecticut now becomes the 14th state to require a criminal conviction for most or all forfeiture cases.

“'Civil forfeiture is one of the most serious assaults on Americans’ private property rights,' Institute for Justice Senior Legislative Counsel Lee McGrath said. 'The bill is a solid first step to ensure that innocent people do not lose their property to this use of 17th Century admiralty law applied to the 21st Century war on drugs'....

"According to data obtained by the Institute for Justice and the Reason Foundation, police and prosecutors generated more than $17.8 million in forfeiture revenue from 2009 to 2016. Nearly two-thirds of those proceeds came from civil forfeiture cases, where the owner did not have to be convicted....

"Although civil forfeiture is often defended as a way to stop large-scale drug cartels and criminal enterprises, in Connecticut, half of all civil forfeitures were under $570 in 2016. These small amounts suggest that many victims don’t have the means to fight back against a seizure in court. The state’s conviction requirement should protect many innocent Connecticutians."

Read more: https://www.forbes.com/sites/instituteforjustice/2017/07/11/connecticut-just-banned-civil-forfeiture-without-a-criminal-conviction/#16bafd6452e7
'via Blog this'

Sessions expands civil asset forfeiture

Jeff Sessions Backs Civil-Asset Forfeiture to Bipartisan Criticism - The Atlantic:

July 19, 2017 - "Attorney General Jeff Sessions rolled back a series of Obama-era curbs on civil-asset forfeiture on Wednesday, strengthening the federal government’s power to seize cash and property from Americans without first bringing criminal charges against them....

"The directive revives the Justice Department’s Equitable Sharing Program, a controversial process through which state and local police agencies can seize assets, then transfer those seizures to federal control. In doing so, local agencies can skirt some state-level regulations limiting forfeitures. Under the program, the federal government pools the funds derived from the assets and sends 80 percent of them back to the state or local department itself, sometimes evading state laws that say seized assets should go into a state’s general fund....

"A Justice Department inspector general’s report in April found that federal forfeiture programs had taken in almost $28 billion over the past decade, and The Washington Post reported that civil-forfeiture seizures nationwide in 2015 surpassed the collective losses from all burglaries that same year. In its report, the inspector general’s office also raised concerns about how federal agencies take funds, after it found almost half of the Drug Enforcement Agency’s seizures in a random sample weren’t tied to any broader law-enforcement purpose....

"In 2015, Sessions’s predecessor Eric Holder issued a set of modest policy changes that scaled back equitable-sharing proceeds if they were obtained without warrants or criminal charges. Sessions rescinded those policies, but, in a rare nod to critics, imposed some new safeguards on the practice by speeding up notification for owners and requiring more information about the local or state agency’s probable cause for seizing assets....

"Kanya Bennett, a legislative counsel for the ACLU, noted that some polls have shown 80 percent of Americans oppose the practice. 'Civil-asset forfeiture is tantamount to policing for profit, generating millions of dollars annually that the agencies get to keep,' she said in a statement.... 'The only safeguard to protect Americans from civil forfeiture is to eliminate its use altogether,' said Darpana Sheth, a senior attorney at the libertarian nonprofit law firm Institute for Justice, in a statement. 'The Department of Justice’s supposed safeguards amount to little more than window dressing of an otherwise outrageous abuse of power'....

"'This is a troubling decision for the due-process protections afforded to us under the Fourth Amendment as well as the growing consensus we’ve seen nationwide on this issue,' California Representative Darrell Issa, a conservative Republican, said.... 'Instead of revising forfeiture practices in a manner to better protect Americans’ due-process rights, the DOJ seems determined to lose in court before it changes its policies for the better,' concluded Republican Senator Mike Lee of Utah. 'Civil-asset forfeiture is unjust and unconstitutional,' Republican Representative Justin Amash of Michigan tweeted. 'It’s a big-government scheme to take people’s property without due process. End it.'"

Read more: https://www.theatlantic.com/politics/archive/2017/07/sessions-forfeiture-justice-department-civil/534168/
'via Blog this'

California legislature closes forfeiture loophole

Tenth Amendment Center Blog | Now In Effect: California Law Reins in Asset Forfeiture, Takes on Federal Equitable Sharing Program - Mike Maharrey:

January 1, 2017 - "Today, a California law went into effect that not only bolsters restrictions on state officials from seizing property without due process, but also throws a wrench into federal efforts to do the same.

"Sen. Holly Mitchell (D-Los Angeles) introduced Senate Bill 443 (SB443) in 2015. The new law sets additional restrictions to prevent abuses from civil asset forfeiture, a controversial practice that observers such as the Institute for Justice (IJ) have called 'legal plunder.'

"California previously had some of the strongest state-level restrictions on civil asset forfeiture, but law enforcement would often bypass the state restrictions by partnering with a federal asset forfeiture program known as 'equitable sharing'....

"Under these arrangements, state officials would simply hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds — even when state law banned or limited the practice.... Through this loophole, U.S. DOJ paid local and state agencies in California more than $696 million in equitable-sharing proceeds....

"The following language shuts the loophole in most situations:

State or local law enforcement authorities shall not refer or otherwise transfer property seized under state law to a federal agency seeking the adoption by the federal agency of the seized property.

"SB443 makes it clear that state and local law enforcement agencies won’t receive federal equitable sharing money related to the seizure of assets unless it is expressly permitted under state law or if the seizure is over $40,000:

A state or local law enforcement agency participating in a joint investigation with a federal agency shall not receive an equitable share from the federal agency of all or a portion of the forfeited property…unless a defendant is convicted in an underlying or related criminal action of an offense for which the property is subject to forfeiture…

"Boats, vehicles, and homes will still require a conviction regardless of value....

"Supported by a politically diverse group of grassroots organizations, SB443 passed in the state Senate last summer by a resounding 38-1 vote. This year, the full Assembly passed it with a 69-7 vote."

Read more: http://blog.tenthamendmentcenter.com/2017/01/now-in-effect-california-law-reins-in-asset-forfeiture-takes-on-federal-equitable-sharing-program/
'via Blog this'

Police to return student's $11,000 life savings

Victim of Airport Seizure Gets His $11,000 Back With Interest - Hit & Run : Reason.com - Jacob Sullum:

Dec. 1, 2016 - "Charles Clarke, the college student who was robbed of $11,000 in cash by cops at the Cincinnati/Northern Kentucky International Airport two years ago, will get his money back with interest under an agreement he reached with the Justice Department this week. Claiming Clarke's checked suitcase smelled of marijuana, the cops argued that the money in his carry-on bag must have something to do with drugs.... Clarke challenged the forfeiture with help from the Institute for Justice [I.J.]....

"Clarke, who admitted smoking pot but insisted he had never sold it, had saved the money over five years from wages, financial aid, and family gifts. He took it with him for safekeeping while visiting relatives in Cincinnati and was stopped on the way back to his home in Florida by an airport detective and a local police officer who had been deputized by the Drug Enforcement Administration. Their agencies benefit from federal forfeitures through the Justice Department's Equitable Sharing Program.

"To take the money, the cops needed only probable cause to believe it was connected to illegal drug activity in some way; they did not even have to specify how.... Although the cops found no drugs in Clarke's bags or on his person and did not charge him with a crime, the [alleged] pot smell and the large amount of cash were enough to make the money disappear....

"To keep the money, the government theoretically had to show that it more likely than not came from selling drugs or was intended to buy them. But that burden applied only if Clarke had the means to challenge the forfeiture once the government had taken his savings. Innocent owners often find that standing up for their rights costs more than the value of the property they are trying to get back....

"'Charles is very pleased that he will get his life savings back and that the whole ordeal is now behind him,' said I.J. attorney Darpana Sheth. 'Civil forfeiture is wrong. It allows law enforcement to seize and keep property without ever charging someone with a crime. Even worse, it encourages law enforcement to seize as much money and property as possible by allowing agencies to keep the proceeds for themselves. The Institute for Justice will continue to lead the fight to abolish civil forfeiture and end this perverse financial incentive.'"

Read more: http://reason.com/blog/2016/12/01/victim-of-airport-forfeiture-gets-his-11
'via Blog this'