One of the biggest affronts to personal liberty in America is a concept called Civil Asset Forfeiture. This is a legal fiction held over from medieval times, believe it or not, where physical property is charged with a crime and thereby seized by law enforcement.
Typically this statute is used in drug cases. Law enforcement declares that an individual’s private properties — cash, cars, homes, boats, land, etc. — have been acquired through extra-legal means. For example, cops will pull over a car, find it full of smuggled marijuana, and declare that the car was bought with drug money, so they keep the car. The property is considered guilty until proven innocent, therefore the owner has the burden of proving that he acquired his property legally.
The maddening thing is that the person whose property is being seized does not even have to be charged with a crime! In the example scenario above, it doesn’t matter if the cops charge the driver with marijuana trafficking or not; the cops get to keep the car. And what if the driver was charged and then found not guilty? Doesn’t matter; he still has to go to court to prove his car is not guilty.
Ostensibly, asset forfeiture is a tool for law enforcement to deter crime and fund anti-crime operations. Who wouldn’t want the drug dealer’s yacht to be sold at public auction to fund the purchase of, oh, let’s say, Kevlar body armor for cops?
The problem is that it’s not just nefarious drug dealers gettting swept up in forfeiture. Innocent people often get caught up, too, and end up going through the wringer trying to get their property back:
(Reason)When Willie Jones, a Nashville landscaper, paid cash for an airline ticket, city police suspected him of being a drug dealer. They searched him, found no drugs, but seized the $9,000 he was planning to bring on his flight to Houston to buy shrubs for his business. It took Jones two years and a federal lawsuit to get his money back.
In 1998, the U.S. Attorney’s Office in Houston seized a Red Carpet Motel, located in a high-crime area of the city. While there were no allegations that the hotel owners participated in any crimes, the prosecutor claimed that the motel deserved to be seized and forfeited because management had failed to implement all of the “security measures” dictated by law enforcement officials, such as raising room rates. After several months of bad publicity, the U.S. Attorney finally returned the motel to its owners, who were never compensated for the loss of business or legal expenses.
In 1993, Chicago police, acting on a tip from a burglary suspect, searched the family-owned Congress Pizzeria looking for stolen property. They found none. But they did find $506,231 in cash, which they promptly seized from owner Anthony Lombardo. The government later argued that it should be allowed to keep Lombardo’s money because he must have been involved in narcotics trafficking since most people don’t have that kind of cash lying around. It was Lombardo’s burden to prove otherwise. In 1997, a federal appeals court issued a stinging criticism of the government’s conduct in this case and ordered the money returned.
What forfeiture does is motivate cops to go after citizens based on the value of potential forfeiture, not based on protecting the public good. It’s policing for profit. Why would the department spend time investigating the rape and assault cases that reap no forfeitures when there are low-level drug dealers whose seized cars and cash could fund a new rec room for the police station? Forfeiture leads to corrupt cops and abused citizens. (You can learn even more about it at Forfeiture Endangers American Rights — www.fear.org)
Oregonians, being the sensible, liberty-loving people they are, decided in 2000 that such wholesale property forfeiture was antithetical to the American principles of “innocent until proven guilty” and personal property rights. They placed Measure 3, The Oregon Property Protection Act of 2000, on the ballot, which severely curtailed the practice of forfeiture:
Amends constitution. Current law does not require conviction before property forfeiture. Measure prohibits property forfeiture unless owner or interest-holder has been convicted of crime involving property. Forfeited property’s value must be proportional to crime. Contraband, unclaimed property may be forfeited without conviction. Forfeited property’s sale must be conducted in commercially reasonable manner. Prohibits applying sale proceeds to law enforcement. Sets priorities for distribution: foreclosed liens, security interests, contracts; forfeiture costs; state drug treatment. Restricts transferring proceedings to federal government. Requires reporting, penalty. Other provisions.
The voters passed Measure 3 by a 2-to-1 margin. Now an Oregonian’s property cannot be taken from him unless he is convicted of a crime. The value of the forfeit must be proportional to the crime — meaning that there will be no more forfeited luxury homes or boats or cars based on the finding of a single cannabis seed. Illegal items (contraband) and abandoned property can still be seized, but now it must be sold at public auction. Profits no longer go directly into law enforcement coffers, but instead to pay off liens and fund drug treatment programs.
After five years, though, the police and their backers have gotten desperate. The meth epidemic has exploded in Oregon (we have the highest per-capita use in the nation), especially in our vast, undermanned rural areas. Many of these drug task forces were directly funded by asset forfeiture. According to counsel for the Oregon Narcotics Enforcement Association, 35% of the narcotics interdiction teams in Oregon have been disbanded since the passage of Measure 3. One such team, the unfortunately-acronymed LINT — Lincoln [County] Interagency Narcotics Team — describes their opposition to the constitutional amendment:
One of the changes made by Measure 3 has the direct effect of letting drug dealers keep most of their drug profits, even after they’ve been convicted of dealing drugs. LINT thinks that is bad public policy, and also believes that voters would never have approved that change had they not been denied their right to vote on that issue separately.
Measure 3 also prohibits the use of forfeiture proceeds for law enforcement purposes. Like the Oregon Legislature, LINT thinks it is appropriate for drug dealers to pay for a portion of the cost of drug law enforcement.
Of course, much of that is nonsense. Once convicted, a drug dealer’s profits can be seized; it’s just that the money isn’t flowing directly to LINT like they’d prefer. And while it sounds appealing to have drug dealers pay for law enforcement costs, if the price of that appeal is the abuse of innocent people’s property rights and the misdirection of police resources toward profit-seeking activities, I’d rather that the taxpayers pay for law enforcement costs.
LINT is involved in a lawsuit — LINT v. [former Oregon Governor] Kitzhaber — that would invalidate the Measure 3 constitutional amendment. It is based on the fact that Oregon’s constitution requires that every issue presented to the voters as a constitutional amendment undergoes a “separate vote”; in other words, each measure can only introduce one issue to be voted on. This is to protect us from potential amendments like, say, “The Full Funding of Body Armor for Oregon National Guardsmen and Puppy Boiling Act of 2006”; we can’t be dragged into voting for boiling puppies just so we can support the troops, it would have to be two separate measures.
LINT argues that Measure 3 contained so many different items that never received a “separate vote” that it should be found unconstitutional. Our side argues that all of the items in Measure 3 are merely ancillary functions of the overall measure aimed at reforming forfeiture. The Oregon Court of Appeals sided with LINT and declared Measure 3 unconstitutional. The case is now before the Oregon Supreme Court with a decision expected this week.
While the potential invalidation of Measure 3 looms in the background, the state legislature is now embroiled in arguments over House Bill 3457.
(Oregonian) Oregon’s law enforcement community counters that Measure 3 has crippled the funding of anti-drug efforts in the state and that passage of HB3457 is essential if they are going to bring the state’s meth problem under control.
Rep. Andy Olson, R-Albany, …a 29-year Oregon State Police veteran, said he is sponsoring HB3457 because he wants to restore some of the tools police lost with Measure 3. At the same time, Olson said, he wants to ensure that there are adequate protections for innocent property owners.
HB3457 would allow law enforcement agencies to seize — and if a judge approves — to sell personal property that officers strongly believe were obtained through illegal means. The property could be sold before a conviction or held by law enforcement until the criminal case is resolved.
Does anyone else see a problem with the phrase “officers strongly believe were obtained through illegal means”? How strong is your belief, officer, that the 2005 Corvette with the marijuana roach in the ashtray was illegally obtained as compared to a beat-up 1973 Datsun B210?
Furthermore, it appears that the cops can still seize, and with a judge’s OK, sell your property even if you’re not arrested or charged with a crime. This completely contradicts the will of the people as expressed in Measure 3 — a person should have to be proven guilty before his property can be taken. The Medical Cannabis Resource Center expressed it this way:
Measure 3, which passed in 2000 with 67% of the vote, requires a criminal conviction before asset forfeiture can occur. Under H.B. 3457, the burden of proof to seize property is “clear and convincing” evidence, which is much less than the “beyond a reasonable doubt” burden needed to convict a person of a crime. This change directly contradicts the will of Oregonians who said by a two-to-one margin that forfeiture should require a conviction.
As you may be aware, the bills’ main proponent, Rep. Andy Olson, represents not only the losing minority opinion among Oregon voters, but further proudly represents those out of control narcotic squads whose profit-driven drug prosecutions and property confiscations were reigned in by a concerned electorate. While Olson has categorized the majority of Oregon voters as ignorant dupes by virtue of their wise decision to pass Measure 3, I suggest that the contrary is true. I suggest that Olson is ignorant of the true minds of his own constituents.
The interesting thing about HB 3457 is that it brings together some strange political bedfellows. Liberals oppose the bill on criminal procedure grounds — we’re innocent until proven guilty — while conservatives oppose the bill on property rights grounds. The Oregonian notes the strange coalition:
It’s rare for a Eugene Democrat and one of the Oregon Legislature’s most conservative Republicans to testify in opposition to the same bill. But that’s what happened this week on House Bill 3457, which would allow police to seize and sell property of people suspected of drug dealing or other crimes.
Sen. Floyd Prozanski, D-Eugene, and Sen. Gary George, R-Newberg, say the bill strikes at the heart of Measure 3, a constitutional amendment passed in 2000 that forbids law enforcement agencies from keeping someone’s property unless they are convicted of a crime.
Measure 3 brought together a coalition of conservatives, liberals, civil libertarians and property rights advocates who supported it. And HB3457 has reunited the unusual allies in opposition to the bill.
“Individuals in this state believe before the government takes possession of personal private property there should be a conviction,” Prozanski told the Senate Rules Committee during a public hearing Monday.
George said HB3457 violates one of the nation’s most basic tenets that a person is “presumed innocent” until convicted.
I’ll keep you posted on the results of the LINT v. Kitzhaber and HB3457. Both have the potential to get cops hooked again on their favorite narcotic: seized drug profits.
