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
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Buy flavored e-liquid, lose your car, MA bill says

Pending Ban on Flavored E-Cigarettes in Massachusetts Authorizes Forfeiture of Vapers’ Cars – Reason.com:

Novewmber 14, 2019 - "The Massachusetts House of Representatives yesterday approved a bill that would ban flavored e-cigarettes, impose a 75 percent excise tax on 'electronic nicotine delivery systems' (including e-liquids as well as devices), and authorize forfeiture of cars driven by vapers caught with 'untaxed' products. The House approved H4183 by a vote of 127 to 31, and the state Senate is expected to consider it next week.

"An 'emergency' ban that Gov. Charlie Baker (R) imposed on all vaping products in September will expire on December 24. This bill permanently bans 'flavored tobacco products,' including menthol cigarettes as well as vaping liquids that taste or smell like anything other than tobacco. It does not apply to hookah bars or marijuana vapes....

"Once their preferred flavors are no longer legally available, some ... vapers may go back to smoking, a far more dangerous habit, while others may buy potentially tainted pods or e-liquids on the black market. Or they might buy flavored e-liquids in states where they are still legal and bring them back to Massachusetts. But vapers who try to find ways around the ban should be aware of the potential penalties.,,,

"The bill says ... a police officer who 'discovers an untaxed electronic nicotine delivery system in the possession of a person who is not a licensed or commissioner-authorized electronic nicotine delivery system distributor' may seize both the product and the 'receptacle' in which it is found, 'including, but not limited to, a motor vehicle, boat or airplane in which the electronic nicotine delivery systems are contained or transported'....

"While both fines and asset forfeiture could be deployed against distributors of newly illicit vaping products, they apply to consumers as well.... [A] vaper is presumed to be in possession of 'an untaxed electronic nicotine delivery system,' which makes his car subject to forfeiture, unless he has receipts that prove otherwise. And in the case of newly illegal vaping products purchased out of state or on the black market, he will have no such proof.

"Under this bill, unapproved vaping products would be treated like illegal drugs, possession of which is enough to justify forfeiture of the vehicles in which they are found. Massachusetts is poised to deprive vapers of the harm-reducing products they used to quit smoking, then steal their cars if they dare to defy that unjust and irrational edict."

Read more: https://reason.com/2019/11/14/pending-ban-on-flavored-e-cigarettes-in-massachusetts-authorizes-forfeiture-of-vapers-cars/
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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

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BC judge returns forfeited $2 million to accused

Court ruling releases $2 million back to accused in B.C.’s biggest money-laundering case | Vancouver Sun - Gordon Hoekstra:

September 13, 2019 - "A B.C. Supreme Court judge has ruled that an interim freeze of assets in B.C.’s biggest money-laundering case was done improperly, and has ordered the release of $2 million in cash to the accused.

"In a ruling released Friday, B.C. Supreme Court associate chief justice Heather Holmes concluded the Civil Forfeiture Office did not provide a fair and complete legal basis to consider the need for an urgent freeze on the cash, a $2-million house, casino chips, gift cards and jewelry. Providing a fair and complete legal basis was particularly important, according to Holmes’ ruling, given that the decision took place in an ex parte hearing, where the defence lawyer was not present.... Holmes agreed to another freeze order on the other assets, but excluded the cash.

"In the civil forfeiture suit, Caixan Qin and her spouse Jian Jun Zhu are accused of running an underground bank in Richmond, called Silver International, that allegedly laundered as much as $220 million a year. The pair have denied any wrongdoing and said that search and seizures violated their Charter rights....

"The ... civil forfeiture case ... was launched immediately after criminal money-laundering charges were stayed against Qin and Zhu in late 2018. The threshold for proving a civil claim is lower than for a criminal conviction, a balance of probabilities rather than beyond a reasonable doubt. Provincial prosecutors were hoping to hit the accused in the pocketbook....

"Holmes noted that the lawyer for the civil forfeiture office allowed no room for opposing views of law, made no apparent effort to put forward the position the defendants’ lawyer would have taken, and also misstated the law on one foundation point that favoured the civil forfeiture office’s position.

“'The court must take the misconduct very seriously, because misleading statements in an ex parte hearing undermine the integrity of the process, and may even obliterate it,' wrote the judge.

"Following the stay in the criminal case, Holmes, who also presided in that case, had ordered the cash be returned to Qin and Zhu.

"The civil forfeiture office has 30 days to appeal the decision."

Read more: https://vancouversun.com/business/local-business/court-ruling-releases-2-million-back-to-accused-in-b-c-s-biggest-money-laundering-case
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Civil asset forfeiture ended in Arkansas

Arkansas Halts Civil Asset Forfeiture and Closes Federal Loophole - Steve Byas, The New American:

July 24, 2019 - "'There shall be no civil judgment under this subchapter and no property shall be forfeited unless the person from whom the property is seized is convicted of a felony offense that [is] related to the property being seized and that permits the forfeiture of the property,' said State Senator Bart Hester (R-Cave Springs), the sponsor of a bill that went into effect July 24 to abolish civil asset forfeiture in practically all cases in the state of Arkansas.

"The vote was unanimous in both houses of the Arkansas Legislature, and Governor Asa Hutchinson signed the bill into law back in March. According to the new law, the state is prohibited from taking a person’s property unless there is a criminal conviction first.

"Previously, the state had already taken action to withdraw from a federal program known as 'equitable sharing' [under which] state and local police, and prosecutors, were able to essentially ignore state restrictions on the practice known as civil asset forfeiture (CAF) by passing cases off to the federal government via what is known as adoption....

"CAF is a legal process by which law-enforcement agencies take assets from persons they suspect of having committed a crime, without necessarily even charging the owners of the property with any crime.... This is contrasted with criminal asset forfeiture, where the accused is afforded all of the constitutional and statutory procedural safeguards available under criminal law, and must be found guilty beyond a reasonable doubt before any property is forfeited.

"Some states, recognizing the inherent injustice involved in civil forfeiture, have passed laws to rein in the practice....  Enter adoption forfeiture, or 'equitable sharing,' the practice by which local law enforcement can circumvent state laws against CAF by 'sharing' part of their seized cash or property with federal authorities.

"The Arkansas Legislature has moved to curtail this effort to circumvent state sovereignty. Under their law, ... No state or local law-enforcement agency may transfer any property seized by the state or a local agency to any federal entity for forfeiture unless the circuit court having jurisdiction ... enters an order, upon petition by the prosecuting attorney, authorizing the transfer.... [T]he transfer shall not be approved unless it reasonably appears that the activity is giving rise to the investigation or the seizure involves more than one state, or if the nature of the investigation or seizure would be better pursued under federal law.

"Unfortunately, a compliant judge could still circumvent state law by, as the Tenth Amendment Center warns, simply becoming a 'rubber stamp' to the requests of law enforcement. The Tenth Amendment Center suggests that Arkansas needs to tighten up this loophole by withdrawing from the federal equitable sharing program completely."

Read more: https://www.thenewamerican.com/usnews/constitution/item/32950-arkansas-halts-civil-asset-forfeiture-and-closes-federal-loophole
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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/

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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

Saskatchewan government expands civil forfeiture

Amendment could strip innocent people of their homes, critics warn | Regina Leader-Post - Arthur White-Crummey:

April 30, 2019 - "A Saskatoon defence lawyer said new civil forfeiture rules passed on Tuesday will line the pockets of his profession at the expense of people trying to hold onto their homes. 'I fully expect this to be a profitable area of practice, unfortunately, on the backs of our citizens, some of whom are going to be completely innocent of any wrongdoing,' Brian Pfefferle said of amendments to Saskatchewan’s Seizure of Criminal Property Act....

"The act governs the civil forfeiture process, laying out when and how the government can seize property allegedly connected to criminal activity. The changes mean that owners of property linked to sexual offences, gang or terrorist activity or impaired driving will have a harder time defending themselves. The burden will now be on them, rather than the Crown, to make their case. If they fail, the province could potentially take their vehicle, or even their home.

"Critics are especially worried that the amendments also apply to property subjected to community safety orders, which are not criminal. In their view, it means a person could lose their house without even being charged — let alone convicted — of an offence. 'Hopefully that doesn’t happen very often, but it’s certainly possible, because there’s no due process in that legislation,' Pfefferle said....

"NDP ... justice critic Nicole Sarauer [said] that perhaps 80 per cent of those facing forfeiture make do without a lawyer, as Legal Aid doesn’t doesn’t work on forfeiture cases. She warned that the changes will further stack the deck against them.... She said she’s seen community safety orders issued against an alleged drug dealer living at home with his mother.... 'For that mother now to have to lose their home because of this situation is quite devastating,' she said.

"Tammy Pryznyk, the ministry’s director of civil forfeiture, ... said her department chooses its cases 'wisely'. Sarauer said it’s dangerous for the legislation to leave that up to the Crown, adding there hasn’t been enough work to study the consequences of the legislation.... The criminal bar was not consulted on the amendments, officials confirmed.

"The money from civil forfeiture goes to support victims of crime, but also to pay for police operations. Pfefferle believes that creates 'bad optics'....

"Even if the safeguards work, Pfefferle thinks clients will be poorer for it. He’s said he’s already seen people spend thousands on legal bills while fighting forfeiture, and warned it will now happen more often. 'It’s going to cause significant costs for arguably innocent people,' he said."

Read more: https://leaderpost.com/news/saskatchewan/civil-forfeiture-changes-could-strip-innocent-people-of-their-homes-critics-warn

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Arkansas house votes to scale back civil forfeiture

Arkansas Legislature Effectively Votes To Abolish Civil Asset Forfeiture - Hit & Run : Reason.com - C.J. Ciaramella:

March 14, 2019 - "The Arkansas legislature unanimously passed a significant asset forfeiture reform bill Wednesday. The new law will require police and prosecutors to obtain a criminal conviction in most cases before they can seize someone's property.

"The bill, S.B. 308, passed the Arkansas Senate by a unanimous vote last month. On Wednesday, the bill similarly sailed through the Arkansas House by a vote of 93-0. If the bill is signed into law by Gov. Asa Hutchinson, Arkansas will join three states — North Carolina, New Mexico and Nebraska — that have severely curtailed or abolished asset forfeiture.

"The new law would require prosecutors to obtain a criminal conviction to forfeit property. There are a list of exceptions, however, including if the property owner is deceased, deported, flees the jurisdiction or fails to challenge the forfeiture, or if the property is abandoned....

"Under civil asset forfeiture laws, police can seize property suspected of being connected to criminal activity, even if the owner is never charged or convicted of a crime. Law enforcement groups say it is a vital tool that disrupts drug trafficking and other organized crime.... However, civil liberties groups argue there are far too few procedural protections for innocent property owners, who may lose their car, their cash, and even their house....

"The proceeds of asset forfeiture are often then split between local prosecutors' offices and police departments. The federal government also partners with state and local police on forfeiture cases, raking in hundreds of millions of dollars a year for the Justice Department's asset forfeiture fund....

"Arkansas law enforcement agencies seized nearly $88 million in cash from 2010-18, about $9.7 million per year, according to data collected by Jeremy Horpedahl, assistant professor of economics at the University of Central Arkansas. That does not include the value for roughly 4,900 vehicles, at least 3,300 weapons and 1,000 other pieces of property confiscated in that span, according to numbers provided by Horpedahl....

"More than half of all U.S. states have passed some form of asset forfeiture reform over the past decade in response to bipartisan concerns."

Read more: https://reason.com/blog/2019/03/14/arkansas-legislature-unanimously-votes-t

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8th Amendment applies to states, SCOTUS rules

Why the Timbs case is about so much more than civil forfeiture | TheHill - Nila Bala:

March 1, 2019 - "[T]he Supreme Court has unanimously ruled that the Eighth Amendment, which bans excessive fines, applies to the states as well as to the federal government. The Supreme Court decided on the case of [an] Indiana man named Tyson Timbs, who was sentenced to home detention and probation for dealing in a controlled substance and for conspiring to commit theft. However, ... the state, under civil forfeiture laws, had also seized his $42,000 Land Rover vehicle, even though the maximum fine allowed in the case was $10,000.

"Civil forfeiture has come under fire by liberals and conservatives alike. Under most laws, an individual does not be charged or convicted for enforcement to seize his assets.... As if that were not enough, the police get to keep the profits they make from selling these assets, creating a perverse incentive for the state to take property without due process....

"The Timbs case, however, is about far more than the injustice of civil forfeiture. It brings attention to a larger problem of unchecked fines and fees that harm public safety and erode government accountability. These fines and fees are levied at every part of the criminal justice system, from charging people for their public defender ... to court costs, probation fees, and sadly even the costs of incarceration itself.

"Perhaps these fines and fees were first created because legislators had assumed that increasing the cost of crime would deter individuals from committing criminal acts. However, excessive fines and fees can actually contribute to crime.... Impoverished individuals often have to choose between paying for basic needs and paying fines and fees. Some cannot afford either of these and are driven to commit further crimes to survive.

"Even if they do not commit additional crimes, they could still end up in jail. Take the case of Tom Barrett, who was assessed more than $1,000 in fines and fees for stealing a $2 can of beer. He ended up selling his blood plasma to try to pay these charges, which continued to accrue interest. Eventually, Barrett was sentenced to a year in a jail because he could not afford to pay. He is not alone. When people cannot pay the fines and fees, they often end up facing heavy sanctions, which paradoxically include more fines and fees, along with drivers license suspensions, loss of the right to vote or, worst of all, incarceration in a de facto debtors prison. While struggling to pay these costs, people can lose their homes, their jobs, and even custody of their children....

"Moreover, the funding for collection activities often comes from the fines and fees themselves...., When police transform from guardians of our community to collection agents, they waste valuable time and resources that are better spent on addressing violent crime. A study found that every 1 percent increase in the share of revenues in a jurisdiction from fines, fees, and forfeitures is associated with a statistically significant 3.7 point decrease in the violent crime clearance rate, which means that fewer violent crimes are solved because police spend far too much time trying to collect fines and fees.

"The Timbs case makes clear that the Eighth Amendment applies to civil forfeiture by states. But symbolically, the Supreme Court ruling stands for so much more by opening the door for us to question our criminal justice system policies assessing fines and fees, which should be used to support the individuals involved and protect our communities. As it stands today, excessive fines, fees, and forfeitures accomplish neither of these goals."

Read more: https://thehill.com/opinion/civil-rights/432250-why-the-timbs-case-is-about-so-much-more-than-civil-forfeiture

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Judge strikes out part of BC forfeiture trial report

Ruling cuts parts of expert report in HA civil forfeiture case | Vancouver Sun:

March 6, 2019 - "A B.C. Supreme Court judge has criticized an 'expert' report about the Hells Angels filed by the Director of Civil Forfeiture as full of biased, unsubstantiated claims about the biker club. Justice Barry Davies ruled that several parts of the report are inadmissible in the director’s long-running civil case against the Hells Angels.

"Davies was also critical of the report’s author, retired Ontario Provincial Police Det. Staff Sgt. Len Isnor, who Davies said relied on his 'long held' conclusion that the Hells Angels Motorcycle Club is a criminal organization.

"Isnor testified in December at a voir dire (a trial within a trial) to determine the admissibility of his report. Davies said that Isnor’s explanations in his testimony 'seeking to distance himself from his long-held and often-stated conclusions were at best disingenuous.'

"The civil forfeiture director is trying to get Hells Angels clubhouses in East Vancouver, Nanaimo and Kelowna forfeited to the government as the instruments of criminal activity. The Hells Angels have counter-sued the government, claiming the Civil Forfeiture Act is unconstitutional. The case has been ongoing since November 2007 when police raided the Nanaimo clubhouse....

"In his ruling, Davies ordered all of Isnor’s references to police investigations of other 'Outlaw Motorcycle Gangs' removed from the report....

“'My first concern arises from Mr. Isnor’s evidence that not only have his opinions remained fixed for many years, but that he has participated as a leader in the design and implementation of courses for law enforcement personnel on how to provide expert evidence ‘that works’ in rendering opinions on the alleged criminality of the Hells Angels Motorcycle Club as an Outlaw Motorcycle Gang,' Davies said....

“'His evidence on this issue also causes me grave concern about his willingness to discharge his duty fairly and impartially,' Davies said. 'I am not, however, prepared to say that Mr. Isnor’s selectivity on that issue or his misplaced defence of it go so far as to require the exclusion of all of his opinions.'

"The trial is scheduled to resume April 1."

Read more: https://vancouversun.com/news/staff-blogs/real-scoop-ruling-cuts-parts-of-expert-report-in-ha-civil-forfeiture-case

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71 SC legislators sponsor civil forfeiture reform

SC legislators announce significant civil forfeiture reform efforts - Nathaniel Cary, Greenville News:

February 13, 2019 - "As a morning Statehouse crowd milled about, ... Rep. Alan Clemmons stepped to a podium ... to announce a bill to reform civil asset forfeiture in South Carolina — a practice which allows law enforcement to seize property from residents, sometimes without charging or convicting them of a crime, and then profit from the proceeds....

"[H]e said the group stands with law enforcement, crime shouldn’t pay, and law enforcement should have the ability to seize property they believe to be illegally obtained. 'We, however, also stand with the presumption of innocent until proven guilty,' said Clemmons, R-Myrtle Beach. 'We also stand for the presumption of the sanctity of property rights.'

"He announced a bill, backed by the conservative American Legislative Exchange Council that Clemmons has previously chaired, to fundamentally change the way civil forfeiture cases are handled in the state. At its heart, he said, the bill would enable a person to not lose their property to police unless they were convicted of a crime.

"Rep. Gilda Cobb-Hunter, ... D-Orangeburg, who is president of the National Black Caucus of State Legislators, ... called it fundamentally an issue of fairness, saying someone who has not been convicted of a crime should not lose their property. She said she knows some small towns count on revenue from forfeiture to furnish police units....

“'I am pleased to stand with this bipartisan group, Democrats as well as Republicans, African-Americans as well as whites, to say we have come together on this issue to say enough is enough in South Carolina. We are going to stand for the citizens of this state.'

"The bill, introduced to the House on Wednesday, will be assigned to the House Judiciary Committee....  71 House members have signed on as co-sponsors. That’s enough votes to pass the bill out of the House....

“'It’s about time,' said Rep. Gary Clary, R-Pickens, a retired judge with 45 years legal experience who has presided over forfeiture cases.... 'I believe in individual rights and individual liberties, and this is one of the most important pieces of legislation that we are going to consider in this session.'

"Clary and others credited The Greenville News and Anderson Independent Mail's TAKEN investigation with creating a climate to address the unfairness civil forfeiture presents to citizens."

Read more: https://www.greenvilleonline.com/story/news/politics/2019/02/13/civil-forfeiture-reform-efforts-south-carolina/2846700002/

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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/
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8th Amendment forfeiture case goes to SCOTUS

Supreme Court could limit the travesty of civil asset forfeiture - Tiana Low, Washington Examiner:

November 28, 2018 - "At long last, the Supreme Court may take action to limit civil forfeiture, if the questioning by various justices in today's case — including Justices Sonia Sotomayor, Brett Kavanaugh, and Neil Gorsuch — is any indication. Although one can only learn so much from the questions justices ask, today's oral arguments strongly indicate that justices will apply the Excessive Fines Clause of the Bill of Rights to cities and states, ending some of the worst abuses of civil asset forfeiture....

"The state of Indiana required Tyson Timbs, a man convicted on minor drug charges, to forfeit his car, a 2012 Land Rover, which he had purchased for $42,000 from the proceeds of a life insurance policy. Indiana law dictates that the maximum fine for the crime, selling heroin to undercover officers, is $10,000, just a quarter of the value of the car.

"Justice Clarence Thomas summed up the awful practice of civil asset forfeiture best when he cited a book entitled Policing for Profit....

"SCOTUS's impending ruling is frankly overdue. As Gorsuch noted in his questioning today, 'Most of the incorporation cases took place in like the 1940s. And here we are in 2018 still litigating incorporation of the Bill of Rights.'

"If the court finally forces the states' hands, it will end the worst excesses of civil asset forfeiture. Over 100 years ago, SCOTUS ruled that excessive fines are those 'so grossly excessive as to amount to a deprivation of property without due process of law'....

"After Indiana's solicitor general tried to argue that the Excessive Fines Clause doesn't apply to the states, 'Gorsuch then told the Indiana SG that he was going to lose, and if he kept arguing the merits, he’d lose even worse,' according to Slate's Mark Joseph Stern."

Read more: https://www.washingtonexaminer.com/opinion/the-supreme-court-could-limit-the-travesty-of-civil-asset-forfeiture
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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/
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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
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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
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Wisconsin governor signs civil forfeiture reform

News - Wisconsin Enacts Sweeping Civil Asset Forfeiture Reform | Heartland Institute - Owen Macaulay:

June 11, 2018 - "Wisconsin Gov. Scott Walker signed a bill  protecting residents’ constitutional rights to property and due process. Senate Bill 61 (S.B. 61), sponsored by state Sen. David Craig (R-Town of Vernon), sets new requirements for law enforcement agencies and prosecutors in using civil asset forfeiture to take ownership of individuals’ seized assets or property.

"In most cases, police or prosecutors now must obtain a criminal conviction before property held by individuals accused of committing a crime can be forfeited. The law went into effect on April 5.

"Lindsey Stroud, state government relations manager for The Heartland Institute ... says many law enforcement agencies have routinely abused the civil asset forfeiture process. 'It’s a problem because, in a lot of these states, if you’re an innocent person, your property can be taken away from you,' Stroud said. 'A lot of these laws allow the law enforcement agencies to retain what they take'....

"Craig says the bill he introduced, now known as Act 211, ... 'requires a criminal conviction prior to forfeiture of property with some limited exceptions, preserving the fundamental notion that one is innocent until proven guilty.... Additionally, the legislation requires that forfeiture be proportional to the offence, that innocent owners are protected, forfeiture actions are properly reported and transparent, and divests the monetary incentives for departments to pursue forfeitures.'

"Stroud says civil asset forfeiture can harm innocent individuals.... 'In one case, a woman went to bail her son out,' Stroud said. 'They took a drug-sniffing dog, sniffed her money, and they seized it. Studies show that 90 percent of bills have traces of drugs on them. She was eventually able to prove she got the money legally'....

"'Frankly, civil asset forfeiture affects every American,' Craig said. “The mere fact that Wisconsin law allowed private property to be forfeited to the government without conviction was a glaring violation of the Constitution.... All citizens should care when their liberties guaranteed by the Bill of Rights are threatened by an overzealous government,' Craig said. 'These abusive policies could someday be used against you, despite no wrongdoing on your part.'"

Read more: https://www.heartland.org/news-opinion/news/wisconsin-enacts-sweeping-civil-asset-forfeiture-reform
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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
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Canadian governments abuse civil forfeiture

National | Abusing civil forfeiture in Canada - Justin Ling:

January 10, 2017 - "Ontario’s civil forfeiture laws have created a system that is broad in scope and power, light on defence and relief....That’s a reality that Margaret and Terry Reilly have learned the hard way over the past decade, as the government has aggressively pursued two of their properties, seizing their buildings and selling them off.....

"The Reillys have found allies in the Canada Constitution Foundation (CCF), who are helping in the legal fight against the forfeiture order.

"The case dates back to 2008, when the couple had two of their rental properties in Orillia seized. As a Crown attorney told the local paper in Orillia, where the Reillys live, the properties had essentially become drug dens.... But the police didn’t pursue charges against the Reillys’ tenants.... Instead, they went after the houses themselves and, in turn, their owners....

"The properties were taken into the possession of Ontario’s Director of Asset Management in 2008, while the two sides battled it out in court, and filed to permanently take control of the properties in 2012 and sell them. The move was, according to the CCF, 'on the grounds that some of the tenants’ rents may have been paid, in part, with the proceeds of their drug
activity'....

“This case is a particularly chilling example,” said Shawna Fattal, a criminal lawyer who represents the Reillys, speaking at the CCF’s [2017] annual Law & Freedom Conference....

"In a 2016 report from the CCF, they gave Ontario an 'F' on its civil forfeiture law. They note that 'the province routinely uses its power to forfeit property in circumstances where there is insufficient evidence to merit criminal charges.' Also, the province 'uses its power to pursue the property of third parties not suspected of any wrongdoing.'"

"Fattal shared the stage with Justin Safayeni, a litigator at Stockwoods with a practice in constitutional matters. 'We have very broad seizure powers, very weak statutory defences...and we have a Crown that is using this legislation is quite aggressively,' Safayeni told the crowd.... he and Fattal agreed that the fight against overbroad forfeiture laws — something endemic to almost every province, according to the CCF — is ultimately a fight that may have to go province-by-province.

 "One big variable will be how the Hell’s Angels fare in British Columbia, where they are currently launching a constitutional challenge to fight the seizure of a clubhouse on the basis that, the Attorney General says, the location could be used for crime in the future."

Read more: http://nationalmagazine.ca/Articles/January-2017/Abusing-civil-forfeiture-in-Canada.aspx
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