Nebraska Ends 'Civil' Police Forfeiture Process, Will Require Convictions

Joins nine other states and D.C. in restrictions.

Credit: Photographerlondon | Dreamstime.com

Good news for Nebraska citizens (or citizens passing through Nebraska) who are fans of things like due process and property rights: The governor has signed a law that reforms the state's asset forfeiture laws to require convictions.

I noted last week that Nebraska's legislature had passed LB 1106 and sent it to the governor. LB 1106 reforms the state's asset forfeiture laws—the process by which prosecutors and police are able to seize and keep cash and property from people suspected of crimes—to require actual conviction. Like many states (and the federal government), Nebraska has a system of "civil" asset forfeiture, which meant that police and prosecutors could attempt to seize somebody's property on the mere basis of suspicion of criminal activity. Conviction—indeed even a criminal charge—wasn't always necessary. This often makes the forfeiture a civil process that puts the burden of proof on the citizen to show that the property was innocent of criminal involvement. LB 1106 ends that civil process. Police and prosecutors must convict a person of a crime and then pursue criminal asset forfeiture.

The law also puts tougher rules on participation with the Department of Justice's equitable sharing program. This program allows law enforcement agencies to bypass state restrictions and controls by partnering with federal law enforcement on busts. This program has allowed police departments across the country to completely ignore state-level efforts to protect citizens from abusive forfeiture techniques.

Nebraska's new laws don't completely prohibit participation with the federal program but does set requirements. It forbids state and local law enforcement agencies from participating in the federal program unless the assets involved are worth more than $25,000, unless a federal agent is physically there taking the property, or unless the suspect (or the suspect's property) is subject to federal prosecution. That $25,000 threshold is the important restriction. Despite acting as though asset forfeiture is being used by police to bust up the operations of drug crime lords, the majority of forfeitures are of much smaller amounts of cash or property of much lower value.

The property-protecting lawyers cheered on Nebraska Gov. Pete Ricketts signing the bill into law today:

"Civil forfeiture is one of the most serious assaults on due process and private property rights in America today. Today's decision to abolish civil forfeiture will ensure that only convicted criminals—and not innocent Nebraskans—lose their property to forfeiture."

"In light of the U.S. Justice Department's misguided decision to revive its controversial 'equitable sharing' program, it is encouraging to see the governor sign a bill that bans transferring seized property in joint task forces or by adoption  to federal law enforcement, unless it includes cash or property worth more than $25,000. For too long, local and state law enforcement have used equitable sharing to bypass Nebraska state law because the federal governments offers substantially higher payouts to law enforcement than what law enforcement receives under state law and is allowed by the Nebraska Constitution.

Comments

[Playa Manhattan.]

This sounds a lot like an unfunded mandate.

[Jerryskids]

This sounds a lot like if the Nebraska lege passes a law forbidding cops from seizing cash and assets from people travelling through Nebraska, they're interfering with interstate commerce. Or something. Give me a few more beers until I can start thinking like a lawyer and I'm sure I can explain it better.

[kinnath]

Every now and then, I see a story on H&R that doesn't make me sad.

One state down, 49 to go.

[Scott S.]

39, actually.

[DEATFBIRSECIA]

So you're saying that there are currently 11 states which require conviction prior to CF?

[kinnath]

huzzah

[crufus]

I guess this means that police in Nebraska will have to invoke the FYTY exception to this law, like police in New Mexico:

http://ij.org/case/new-mexico-forfeiture/
"..But cities across New Mexico are refusing to follow the law. In Albuquerque, police and prosecutors continue to use civil forfeiture and have even announced plans to purchase a new, bigger parking lot to hold all the cars they expect to seize?a parking lot that will be paid for through civil forfeiture..."

[DEATFBIRSECIA]

So was this bill passed without any enforcement mechanisms? Seems kind of pointless, doesn't it?

Ahhhhh, I get it. It was supposed to be toothless. Nevermind.

[crufus]

The bill's sponsors in NM are suing in court to enforce the law, but the count has not ruled yet. My guess is that Albuquerque will lose, there will be appeals and Albuquerque will continue to steal property until they are forced to shutdown.

Since Albuquerque city and police have no power under the law to seize property, they will probably be facing criminal and civil penalties, and they're doubling down. Looks like a case for Saul Goodman.

http://ij.org/press-release/n-.....challenge/

[JayWye]

somebody should torch that parking lot once it's full of cars.

[JoWaDat889]

Sometimes man you jsut have to roll with it.

http://www.Web-Privacy.tk

[Suthenboy]

"Like many states (and the federal government), Nebraska has a system of "civil" asset forfeiture, which meant that police and prosecutors could attempt to seize somebody's property on the mere basis of suspicion of criminal activity. Conviction?indeed even a criminal charge?wasn't always necessary. This often makes the forfeiture a civil process that puts the burden of proof on the citizen to show that the property was innocent of criminal involvement."

A process wildly at odds with this: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Let's just wait and see how this pans out. If prohibiting state sponsored theft in the supreme law of the land doesnt stop it, I am skeptical that this law will.

[croaker]

The solution is simple: Start prosecuting cops who engage in "civil forfeiture" as the thieves they are. Including use of a firearm the commission of a felony.

[Michael Ejercito]

Does not civil asset forfeiture date back to colonial times?

[RoyMo]

So did slavery.

But on a more measured note, the reason we have the bill of rights is because of what happened in colonial times.

[kbolino]

Does not civil asset forfeiture date back to colonial times?

Yes, and its use was one of the grievances the colonists had against the British. It was also used by the Federal government in the early years of the republic for much the same reasons as the British had done.

However, three things are notable about civil asset forfeiture in its original incarnation:

1. It was (mostly?) used against ships sailing on the high seas
2. It was (mostly?) used to enforce customs violations
3. Even then, it was used infrequently

The justification was that because the ship (and especially its owner) could easily escape the reach of authorities on land by sailing out to sea, seizing it at the port was the only effective way to enforce the customs law.

Civil asset forfeiture in its modern incarnation has none of those characteristics, most importantly not the justification. Moreover, the drug laws that it is typically used to enforce are not, generally speaking, revenue laws. Even if we suppose the money was indeed obtained illicitly, and that the nominal possessor has no right to keep it, by what grounds does the government have to receive it?

[kbolino]

Addendum: It looks like asset forfeiture got an uptick in usage around the time of (alcohol) Prohibition, which is hardly surprising given the reason it's so heavily used now is drug prohibition.

[VartAndelay]

If agents of the state can steal your property at any time, what do we really own?

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