Cops, backed by federal law, have been taking stuff from innocent people, and some not-so-innocent people, at alarming rates for more than a decade.
The government's “equitable sharing” civil forfeiture rules encourage federal agents and some local cops to seize goods from folks they believe are criminals. Encouragement comes in the form of language that lets agencies keep what they take. Some departments have been known to proudly advertise that their fancy new vehicles were taken from alleged bad guys.
And unlike the rest of our criminal justice system, these federal rules don't require due process. In fact, the law says if you want your stuff back, you must sue the government to prove it wasn't used in the commission of a crime. The burden of proof is on you.
Local U.S. Rep. Tony Cárdenas, along with New Jersey Rep. Scott Garrett, today proposed new legislation that would change that:
Under criminal law, feds can seize property used in crimes when owners are convicted. But civil asset forfeiture has a lower threshold for seizure: Cops simply have to establish “probable cause” that they believe the stuff was involved in dirty business.
Suspects can be found not guilty and still have their stuff taken. There are horror stories about innocents who have lost cars, boats and cash to suspecting law enforcers who used the letter of the federal law.
There are small-town police agencies known to exploit civil asset forfeiture rules to enrich themselves and leave innocents at the side of the road. Sometimes it's highway robbery. But it's legal.
Local cops often like to use the federal law to take stuff, suggests a representative for Cárdenas, because the threshold for seizure is so lax.
To make a long story short, the so-called FAIR Act, supported by some Democrats and Republicans, would reverse the burden of proof so that, even in civil cases, the government would have to “establish, by clear and convincing evidence, that the property is subject to forfeiture,” according to a summary.
What's more, H.R. 5502, a House companion to Rand Paul's similar legislation in the U.S. Senate, would centralize the destination of the seized property. The U.S. Treasury would ultimately get the proceeds. Local cops and federal agencies could no longer keep what they take under federal civil asset forfeiture.
They'd have to share. Cárdenas' office sums it up:
The FAIR Act would ensure that Americans are innocent until proven guilty by requiring the government to meet a higher legal standard before seizing an individual’s property. This legislation would raise the standard to seize assets from a preponderance of evidence to a higher standard of clear and convincing evidence. In addition, the FAIR Act would eliminate the practice of equitable sharing and eliminate all profit incentives by requiring that all funds seized by the federal government go into the general treasury fund.
Cárdenas says the law could elimate greed-driven seizures based on thin evidence:
Satisfying a profit motive must never be the reason for law enforcement, and it certainly must never be allowed to support the seizure of personal property by those who we trust to protect and defend our nation and our Constitution.
The San Fernando Valley legislator could face some stiff opposition from the law-and-order crowd, but the bipartisan support the proposal has seen so far is promising.