Perspectives: Utah law enforcement can take your property; new law erodes personal rights in asset forfeitures

OPINION – One particularly disturbing aspect of the approaching police state is the practice of civil asset forfeiture. This is when law enforcement is empowered to seize a person’s property — most often cash, cars, or homes — without due process or having to prove it is connected to a crime.

In my Dec. 26 Perspectives column, I wrote an open letter to law enforcement arguing that we are headed for a police state and showed how the state is using laws and law enforcement to consolidate its power over people. The feedback to my letter has been plentiful. Surprisingly, the vast majority of it has been positive. Perhaps the blinders are finally coming off.

So let’s consider the state’s practice of empowering law enforcement to take a person’s property without due process or showing that the property is connected in some way to a crime alleged or committed.

The person from whom this property has been confiscated is now obligated to secure legal representation and fight a civil action in court to prove that the property was obtained legally. This is exactly the opposite of how justice is supposed to work.

When someone is accosted by armed individuals and forced to relinquish their property we should call this by its proper name: armed robbery. When the individuals doing the taking are clothed in the authority of the state, we’re supposed to believe such actions somehow become honorable.

It’s one of the most dangerous lies that we choose to believe.

True believers in the state and its symbols of power often try to justify such seizures on the basis that an arbitrarily “large” amount of cash is evidence of wrongdoing. In their minds, only drug dealers or their associates would have so little faith in the banking system.

But innocent people, who have wronged no one, can still find themselves stripped of their lawfully owned private property. Getting their property back takes a great deal of time and money.

This has become a particularly noticeable problem in states where law enforcement agencies could benefit from the assets they seized. When the focus of police and prosecutors shifts from justice to profit, legal theft becomes the norm. Naturally, this strains the public’s trust in law enforcement.

In 2000, voters in Utah overwhelmingly approved Initiative B, the Utah Property Protection Act of 2000, seeking to curtail the temptation of “policing for profit.” As Forbes reported on Dec. 23, Initiative B also properly placed the burden of proof on the state and strengthened defenses for property owners to protect them from unjust confiscations.

The initiative was strongly opposed by police chiefs and prosecutors but in the wake of its passage, forfeitures dropped significantly in Utah.

Then in 2004, under pressure from law enforcement officials, state lawmakers created a loophole that essentially overturned Initiative B with the passage of SB 175. The final bill that passed, with the Orwellian title, “Protection of Private Lawfully Obtained Property,” revised several statutes, thereby enabling local law enforcement and prosecutors to partner with federal agencies in order to share revenues generated from asset seizures.

Initiative B also required a strict court order to facilitate any transfer of such assets to the feds.

Where Initiative B required all forfeiture proceeds to be funneled into the Uniform School Fund, the 2004 SB 175 allowed agencies to keep seized property and send the proceeds to the Commission on Criminal and Juvenile Justice. From there, the local agencies could receive the proceeds indirectly.

Statewide Initiative B was not enacted to shield criminals from the effects of their wrongdoing; it was to protect innocent citizens from the predation of authorities who might mistake their powers for a license to steal.

Now a more recent bill HB 384, entitled Property Disposition Amendments and passed in Utah’s 2013 General Session, has further rolled back the people’s desire to be protected from unreasonable seizures. Thanks to the sharp eyes of analysts at Libertas Institute, it has been revealed that this year’s Property Disposition Amendments legislation has finished the job of destroying Initiative B by some clever linguistic changes.

Libertas Institute’s full report on civil asset forfeiture is worth reading.

The 2013 HB 384 allows officers to give a suspect the option of signing away any claim to the seized property in exchange for being released. This shifts the focus away from the alleged crime and to simply obtaining more funding.

The bill also changed the time limits in which the government needs to file a complaint describing the case against the property and eliminated the penalty for noncompliance. Likewise the consequence for a prosecutor failing to file a complaint was also eliminated.

The new law also now allows attorneys fees to be awarded to the prosecutor should a person unsuccessfully sue for the return of his or her property. This places another considerable obstacle in the way of someone trying to get back their property.

Remember, we are not talking about individuals who have been charged, tried, and found guilty of committing a crime. Their property has been taken based on a mere suspicion that has not been proven.

The Institute for Justice has some excellent thoughts on how states can be tough on crime without destroying property rights in the process. Utah lawmakers and law enforcement officials need to reconsider what their approach is doing.

How can respect for the law endure when the law itself has become an instrument of official plunder?

Resources

Statewide Initiative B – Utah Property Protection Act 2000

Utah General Session 2004 – S.B. 175 Protection of Private Lawfully Obtained Property

  • See how senators voted here | See how representatives voted here

Utah General Session 2013 – H.B. 384 Property Disposition Amendments

  • See how senators voted here (Except for six absent or not voting, all state senators voted for this bill) | See how representatives voted here (except for three absent or not voting, all state representatives voted for this bill)

Ed. note: The foregoing links include the specific initiative and enacted bills discussed in this column, the list is not exhaustive on the subject or representative of all amendments to the subject law.

Related posts

 

Bryan Hyde is a news commentator and co-host of the Perspectives talk show on Fox News 1450 AM 93.1 FM. The opinions stated in this article are his and not representative of St. George News.

Email: bryanh@stgnews.com

Twitter: @youcancallmebry

Copyright St. George News, SaintGeorgeUtah.com LLC, 2013, all rights reserved.

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31 Comments

  • Giuseppe December 30, 2013 at 10:34 am

    Oh boy here you go again. Abide by the laws and you have nothing to fear. If you don’t like the laws change them. If you don’t like the law makers run for office. I hear you consistently complaining about the “system”, “the laws” or “the man” and you offer nothing to solve what you consider a problem.

    What is the solution Bryan? Or are you just content enough to try and “stir the pot”?

    • Craig December 30, 2013 at 2:06 pm

      I assume that you have not heard of the numerous cases where police have confiscated property because they can in spite of it being quite obvious that the persons had done no illegal acts.
      Instead of “policing for profit” why would it not be better that police do their jobs and appeal to the citizens for the materials they need?
      As it is there seems to be cops in competition to support their ‘gang’ with who can fetch in the most loot.

      • Silence Dogood December 30, 2013 at 8:08 pm

        Craig,

        Which cases specifically? I haven’t heard of them.

    • ladybugavenger December 30, 2013 at 6:32 pm

      If I had not been a person that stood against government corruption, I too may be just like Giuseppe. I do follow the laws for the most part( i didn’t use my signal yesterday and i went a couple miles over the speed limit-oops) I did not fight against corruption because I was breaking the law, I fought corruption because they were breaking the law. And what I found in Los Angeles County(a county of 10,000,000 people) is no different than in any other county, state, or city government in the US just a larger scale. The Board of Supervisors is in control of the county and its entities. If it senses that a person is trying to uncover a truth about the corruption they use the county entities to come against a person. And in my case my family. This also includes Sheriffs, which are used to intimidate. If the board needs to, they will change policy and procedure and make them retroactive, they will use the bought of court system and judges to rule in their favor. They will, as in the case of Richard Fine, incarcerate you. They will use whatever force they have to make you the bad guy. Amongst the employees, they will find a target and that person will be the fall guy and get charged with corruption in order to make it appear they are interested in keeping integrity. Run for office and change the laws? good intentions, not gonna happen. No matter how much a person wants to make it better, they can’t. They will get sucked in to the corruption or be the fall guy. The answer is standing up, fighting against it. But there are too many people like Giuseppe that think its something to do with “just follow the law…” I

    • ladybugavenger December 30, 2013 at 6:34 pm

      If I had not been a person that stood against government corruption, I too may be just like Giuseppe. I do follow the laws for the most part( i didn’t use my signal yesterday and i went a couple miles over the speed limit-oops) I did not fight against corruption because I was breaking the law, I fought corruption because they were breaking the law. And what I found in Los Angeles County(a county of 10,000,000 people) is no different than in any other county, state, or city government in the US just a larger scale. The Board of Supervisors is in control of the county and its entities. If it senses that a person is trying to uncover a truth about the corruption they use the county entities to come against a person. And in my case my family. This also includes Sheriffs, which are used to intimidate. If the board needs to, they will change policy and procedure and make them retroactive, they will use the bought of court system and judges to rule in their favor. They will use whatever force they have to make you the bad guy. Amongst the employees, they will find a target and that person will be the fall guy and get charged with corruption in order to make it appear they are interested in keeping integrity. Run for office and change the laws? good intentions, not gonna happen. No matter how much a person wants to make it better, they can’t. They will get sucked in to the corruption or be the fall guy. The answer is standing up, fighting against it. But there are too many people like Giuseppe that think its something to do with “just follow the law…” I

  • DoubleTap December 30, 2013 at 11:17 am

    Giuseppe “is just content enough” being a sheep. Really boring….

    • Ess derk December 30, 2013 at 10:21 pm

      Let me guess doubletap you’re the state police that will doing the shearing? POLICE STATE!!! Nice job Bryan! Keep it up. Great information on all the corruption. It’s not illegal to carry any amount of money! It is illegal for someone to rob someone of said money. So why would anyone think it’s ok for someone with a badge to rob the people? Bub- they’re all corrupt.

    • Ess derk December 30, 2013 at 10:26 pm

      Will you be participating in the shearing doubletap? POLICE STATE! Why would anyone say it’s alright for someone to rob another? It is NOT illegal to carry as much cash as you want! There isn’t a limit! This is flat out ARMED ROBBERY! Nice job Bryan! Keep on exposing the corruption!

  • bUB December 30, 2013 at 11:39 am

    corrupt congress, corrupt courts, corrupt campaign system, law enforcement, prisons, nsa spying… really people are bad whenever they can get away with it. Where to begin…

    • bUB December 30, 2013 at 11:44 am

      I suppose voting the same good ol’ boys into office time and time again and expecting change doesn’t really work does it?

  • Skip Wiarda December 30, 2013 at 11:41 am

    “The 2013 HB 384 allows officers to give a suspect the option of signing away any claim to the seized property in exchange for being released.”

    Uh …. didn’t that used to be called a “bribe?”

  • Anna December 30, 2013 at 11:50 am

    I love this article, but too many Americans have their head buried in the sand and wont care until it happens to them. Wake up Americans and read http://www.infowars.com for the true news.

    They say if you put a frog in boiling water, it will hop out right away to escape the danger

    But, if you put a frog in a kettle that is filled with water that is cool and pleasant,
    and then you gradually heat the kettle until it starts boiling,
    the frog will not become aware of the threat until it is too late.

  • Silence Dogood December 30, 2013 at 11:53 am

    Brian,

    How do you propose the “government” take property that was purchased through illegal proceeds? Should drug dealers and thieves be allowed to keep property they buy with money they got from peddling poison or theft? I don’t think they should.

    The citizens of the United States are protected from seizure of property by the government by the Constitution. More specifically the 4th Amendment. We both know the burden of proof is probable cause. So in a nut shell, it’s the governments burden to provide enough evidence that it’s more probable than not that the property to be seized was procured with funds that were obtained illegally. Drug dealers, and thieves should not get a pass in our state to keep their gains. The “people” should take their stuff and auction it off with the funds going to the public’s use.

    • Bryan Hyde Bryan Hyde December 30, 2013 at 12:14 pm

      Due process. That’s how property that was obtained through illegal means should be taken and either returned to the rightful owner or liquidated with the proceeds benefiting the entire public, not just those who seized it.
      .
      This means that the state must be able to to prove its case and obtain a conviction, not simply suspect that something is fishy. Yes, it requires real police work and actual evidence. But it keeps the innocent from being fleeced in the name of protecting us from the druggies.

    • Jacob December 31, 2013 at 7:31 am

      Benjamin Franklin you are not! The United States constitution rough drafts where written on hemp paper. It was considered “unamerican” not to grow hemp/ cannabis. So looks like the police are communist mixed with fascist and possibly you? The police are supposed to “protect and serve” not rape and pillage. If “drugs” where legal there wouldn’t be so much violence. See what prohibition did? Al Capone ring a bell? Portugal has decriminalized so much the use has gone down! It’s economics 101 police take supply away prices go up! People commit crimes to get their addiction fed. Instead of putting them in jail and wasting tax dollars why don’t they get rehab? Portugal has made it work and their stats. Are way better than U.S. It will work if we’d try. Police should be using Eco friendly vehicles and quit wasting tax dollars on catching drugs riding around in V-8’s to violate peoples guaranteed rights! They should be focused on murder, rape and robbery. Not violating their oath to the constitution.

  • ladybugavenger December 30, 2013 at 12:50 pm

    I agree with you! Had I not fought through government corruption in Los Angeles County, I may be blind like Giuseppe. But I see it. I obey the laws for the most part Giuseppe ( except that blinker I didn’t use yesterday, and the couple miles over the speed limit-oops) That’s not the issue Giuseppe. This issue is when the ones in power, the ones that make the laws, the ones that enforce the laws are the ones breaking the laws., And the LA County Supervisors when they feel they are caught, they simply change the policy, the procedure, use law enforcement against you, and then they will resort to their paid off Judges in the court system, or in my case all of the above. and i’m sure LA County government practices are no different than any other county. I fought my fight!!! Have you? (that’s a rhetorical question)

  • Silence Dogood December 30, 2013 at 1:40 pm

    Bryan,

    Due process means that a person is given the opportunity for a trial. A civil action is all that is required for a seizure of property. A conviction of a crime requires a much higher burden of proof. That burden is beyond a reasonable doubt.

    Asking local police officers to prove a person is dealing drugs shouldn’t be that hard, right? How about proving someone is dealing drugs from another state? What if the person who is dealing drugs pays someone to haul the money west to pay off a drug debt? Is that person being paid to transport the money a drug dealer? Proving the person transporting the money guilty of a crime, especially someone from another state, is difficult.

    I would argue that auctioning criminals belongings off is benefiting the entire public. Our tax dollars fund public services. Using criminal forfeiture laws to help fund public services does help us. The funds are used to equip, and train our police officers. I think we would both agree that a well trained, well equipped police force benefits the public more than a poorly trained, poorly equipped force.

    • Bryan Hyde Bryan Hyde December 30, 2013 at 4:03 pm

      Actually, due process of law is one of the key limitations of government power that protects our lives, liberty, and property. This is why it is spelled out in the 5th Amendment of the Bill of Rights.
      .
      The concept goes all the way back to 1215 with the signing of the Magna Carta where the King was forced to admit that his powers over the people were not absolute. Whether part of a civil or criminal proceeding, the intent of due process is very clear: the state may not arbitrarily deprive a person of life, liberty or property without proving its case.
      .
      Jacob Hornberger does a terrific job of explaining this: http://www.lewrockwell.com/2005/03/jacob-hornberger/due-process-of-law/

  • JAR December 30, 2013 at 1:48 pm

    Bryan my man, Your last comment makes total sense. In fact, the entire article deserves a that A boy.

  • ladybugavenger December 30, 2013 at 3:03 pm

    If I had not stood up and fought against government corruption in LA County, I too may be blind like Giuseppe. I follow the law (except not using my blinker once, yesterday and going a couple miles over the speed limit- oops) but that is not the point. The point is when people in power, and, making the law, and enforcing the law are the ones breaking the law- there is lawlessness. I did not fight against LA County and its entities because I was breaking the law but because they were. What I learned is: the Board of Supervisors, the ones that run the county, if they feel someone is getting close to uncovering the truth they will come after you, using their entities including the Sheriff department to intimidate you, they will change policy and procedures and retroactive them accordingly, they will use their corrupt court system and paid off judges to rule against you. They will even imprison you, as in the case of Richard Fine. They will come after your family and tear your family apart. Its not about running for office and changing the laws….once a person is elected, even with best intentions they get sucked in to this corruption. Every once in a while, someone will be a target and take the fall for the public to believe they fight corruption. Its just a game to them. And I believe no State, no County, no City, is any different and its getting worse. People need to stand up, but there are too many people like Giuseppe.

  • mater December 30, 2013 at 4:04 pm

    Giuseppe BAAAA
    eat some ginkgo then read Bryan’s opionion again maybe you’ll understand but i doght it.

  • Silence Dogood December 30, 2013 at 5:38 pm

    Glad to see that we agree. The state must prove it’s case. A civil case is the preponderance of the evidence or 51%. Or a person can give away their property, and I think we both would agree that anyone should be able to give away something if they wish.

    Demonizing the police for legislators actions is silly. That’s like blaming guns for gun violence or McDonalds for making someone eat too much. The police gather evidence and present it to a prosecutor, who decides if there is enough evidence for criminal charges. The prosecutor presents the evidence to a court, who decides guilt. There are several checks and balances in place to stop the government from taking legally obtained property from citizens of this great country.

    I would agree that our government is out of control. Congress and our President have been out of control for many years. I don’t think demonizing the police is the way to solve the bureaucratic problems in our local, state, or federal government.

    • Bryan Hyde Bryan Hyde December 30, 2013 at 8:59 pm

      Pointing out that police officials and prosecutors have fought to overturn the will of the voters by gutting Initiative B isn’t demonizing them. Past abuses led voters to limit the power of police to take property without due process. Was that demonizing them, or ensuring that they serve the interests of the people and not just the state?

  • Adrian December 30, 2013 at 8:02 pm

    I was ranting about the asset forfeiture laws in the 1980s. It didn’t do any good then, either. The laws go way back and, bogglingly so, the courts keep upholding them. And law enforcement uses them for revenue.

    Salinas PD (California) just bought a $600K armored personnel carrier. They need all the money they can get.

    • Roy J January 1, 2014 at 5:09 pm

      Good point, Adrian. It’s frustrating to see our state representatives emasculate laws this way, but it is nothing new for our empire state bureaucracy.

  • Reggie December 30, 2013 at 8:39 pm

    To me this is a very sensitive topic a few years back my wife was driving her car out in Ivins she was pulled over for not using her blinker when asked for her insurance she gave him our card he went backed and checked it and it showed on his system that we had none. He told her he was impounding the car made her wait in the dark on the side of the road for me to come and get her. At the time she was seven months pregnant with our fifth child. On my way there I called my insurance agent she told me my coverage was active and in good standing the police was wrong we never got one dime back of the impound fee or the fee to restate our registration even with our letter from my agent in their eyes we were guilty. We all must be very careful on how much power we give the government. Because some times in there eyes the innocent might look guilty and it don’t matter what you say or do they do not like to loose face or admit they were wrong!

  • Danny December 30, 2013 at 10:01 pm

    Right on Reggie. I’ve seen similar scenarios to yours play out many times.

  • informed December 30, 2013 at 11:15 pm

    In ivins, you learn to keep your head down and say yes sir to all police, they follow you for no reason, and have a huge power trip. Even if you’ve done no wrong, they are always there waiting to find something, even if the there is nothing. I don’t feel safer knowing they are there, I just hope to stay out of their radar, because they WILL make up a story to justify their actions and make themselves look more important. And I know I am not the only one who feels this way or have been harassed for no other reason than just passing by them.

  • Meh December 31, 2013 at 12:05 am

    It doesn’t matter what laws are created if you don’t like it and are willing to fight to the death to oppose them, then by all means you better fight. If you are unwilling to fight then give up and save yourself the trouble. The majority of people are unwilling to stand up for themselves as to not be separated from the masses.

  • anticriminals December 31, 2013 at 6:27 pm

    Confiscation of the property of all emigrants and rebels is the fourth listed element of communism and is standard operating procedure of a police state. Everyone is obviously a bad slave and deserves to have their property taken/ stolen, due process is over-rated. The other nine elements of communism are in effect in this country as well and no one seems to be protesting them. What’s your beef? Be good slaves ( I prefer to use the N-word) as you are all thought of as being, and treated as such in the courts and by the cops.

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