NMA Lobbying in DC, Part 2 – License to Steal: NMA E-Newsletter #465

By Gary Biller, NMA President

I get annoyed by the overuse of certain clichéd buzzwords and catch phrases in our area of advocacy, terms like “big brother,” “nanny state,” and “taxation by citation” for instance. That isn’t to say that they don’t sneak into the NMA vernacular from time to time. In fact, I used the golden oldie “highway robbery” in E-Newsletter #464, NMA Lobbying in DC, Part 1 and dusted off another for the current title.

Sometimes that is the most effective way to get to the crux of the matter. Stealing, robbery, and theft are terms that come immediately to mind when describing the roles the federal and state governments have taken in seizing civilian property, due process and Fourth Amendment protections be damned.

Strengthening civil asset forfeiture laws is one of two key areas from the NMA’s 2017-18 National Legislative Agenda where our Washington lobbying efforts are focused. (Click on the Part 1 link above to learn about the other.) Together with NMA lobbyist Rob Talley, we have crafted a talking points memo – time to put another dollar in our overused cliché collection jar – to persuade lawmakers that the bar for determining reasonable-cause searches and seizures has dropped precipitously low and action needs to be taken.

Data compiled by the Institute for Justice using FBI crime reports show that in 2014, for the first time, the amount of property seized by federal law enforcement and the U.S, Treasury Department not only exceeded a staggering $5 billion – confiscations also surpassed the total of all claimed burglary losses in the United States that same year. The country’s biggest thief is the country itself, taxes excluded.

Part of the problem with tracking state and local asset seizures is that there is no requirement for disclosure and there is a substantial motivation to confiscate property. In 43 states, police and prosecutors can keep anywhere from half to all of the proceeds taken from civil forfeiture – a clear incentive to police for profit.

Motorists have long been primary targets of property seizures. These are some of the findings by The Washington Post in its 2014 “Stop and Seize” investigative report:

  • In the 13 years since September 11, 2001, 61,998 seizures of cash were made by law enforcement from motorists and others without search warrants or indictments. The total haul under the Equitable Sharing Program – much more sinister than its bland-sounding name or ESP acronym – was more than $2.5 billion. That is truly impressive considering that nearly half of the reverse-Robin-Hood property grabs captured $8,800 or less;
  • State and local agencies retained more than $1.7 billion of the ESP proceeds, while their federal counterparts led by the US Department of Justice (DOJ) kept $800 million;
  • Only a small number of the seizures were contested because of the cost burden of mounting a legal action, something the government agencies almost certainly counted on;
  • Of those who did fight in court to get their property, nearly half prevailed but only after prolonged and expensive legal battles;
  • Federal regulations prohibit state and local agencies from using seized cash to supplement their operating budgets but the Post found that several hundred police departments and task forces did add to their revenue streams through forfeiture programs.

The DOJ’s Inspector General noted in a report earlier this year that, “Department investigative components do not require their state and local task force officers to receive training on federal asset seizure and forfeiture laws, and component seizure policies prior to conducting federal seizures.” Basically property owners, charged or not with a criminal offense, are at the mercy of government law enforcement agents, many of whom don’t fully understand civil asset forfeiture regulations.

The NMA is lobbying Congress to enact legislation much like the State of California did in September 2017. The new California law closes a significant part of the equity-sharing loophole by banning state agencies from receiving seized assets unless a defendant is convicted of an underlying or related criminal action. To increase transparency, the state attorney general is required to publish a detailed annual report of the number of value of asset forfeiture cases undertaken by state and local enforcement agencies.

That is reform that must be fought for.

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