Civil asset forfeiture is the legal procedure for seizing your assets without the tedious requirement of convicting you, the hapless property owner, of a criminal offence.
If it were anyone but government officials doing the stealing, this would be called theft. Because it’s government, their lawyers call it a ‘victimless prosecution’ where the property, not the property owner, is put on trial.
It doesn’t have to make sense. It’s government policy.
Thankfully, Utah is taking new steps to prevent state law enforcement agencies from profiting from this highly abusive process.
On January 19, 2021, Utah Senator Todd Weiler introduced Senate Bill 98 to slam the door shut on efforts to circumvent limits on state civil forfeiture passed in 2000.
SB98 opts Utah out of the federal ‘equity sharing’ program that state police agencies were using to circumvent “Initiative B” – a 2000 initiative designed to limit the ability of government to steal property from innocent people.
When Utah voters put “Initiative B” on the ballot two decades ago, Utah law enforcement officials fought tooth and nail to stop the measure that would derail their gravy train. Despite their opposition, or perhaps in spite it, voters overwhelmingly supported “Initiative B”, which passed by 69%.
According to the Libertas Institute, after the 2000 restriction, “Law enforcement officials immediately sought to undermine the law and re-introduce the ability to obtain a part of the resulting proceeds from the confiscated property.”
In 2013, law enforcement crafted legislation that gutted several private property and due process protections in forfeiture law and then stood by silently—and knowingly—while the legislature was misled into believing that the lengthy change to forfeiture law was only technical and superficial, as opposed to substantive.
Our policy analysis, written a few months later, highlighted what law enforcement had done. To correct this gross error and restore these deceptive changes, we proposed legislation designed to restore these changes.
SB98, when passed, will:
- Make clear, as the Court ruled in Savely, that state courts have jurisdiction over seized property so that the property cannot be transferred to the federal government (where there are fewer legal protections for the property owner).
- Clean up and clarify Utah forfeiture law in response to the Court’s criticism that the existing statute was “not a model of clarity.”
- Specify that if someone disclaims ownership of property (i.e. a bag of cash found by police during a roadside stop), the disclaimer of the property must be knowing and voluntary. (This is important because by disclaiming an ownership interest in the property, the person would lose the ability to contest its forfeiture by the government.)
- Require information about the forfeiture process to be provided to the person from whom the property is taken, including information about how to assert a claim of ownership to contest the forfeiture proceedings.
- Allow transfer of property to a government agency outside of Utah only under certain narrow conditions, such as if the property is not money and it is evidence in a crime being investigated by the other law enforcement agency.
It’s refreshing to see a jurisdiction anywhere in North America taking private property rights seriously precisely because it is so rare.
For those familiar with the Bruce Montague case, you may remember the Ontario Provincial Government attempted to steal the Montague family home using civil forfeiture under the Civil Remedies Act.
For reasons they never explained, the provincial government abandoned the seizure attempt of the Montague family home. Bruce and Donna still live there today.
In 2015, the Institute for Justice published the second edition of their landmark report, Policing for Profit: The Abuse of Civil Asset Forfeiture, which describes civil forfeiture as a threat to the “constitutional rights of all Americans”.
From the 2015 report:
Using civil forfeiture, the government can take your home, business, cash, car or other property on the mere suspicion that it is somehow connected to criminal activity—and without ever convicting or even charging you with a crime.
Most people unfamiliar with this process would find it hard to believe that such a power exists in a country that is supposed to recognize and hold dear rights to private property and due process of law.