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?
Statewide Initiative B – Utah Property Protection Act 2000
Utah General Session 2004 – S.B. 175 Protection of Private Lawfully Obtained Property
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.
- Perspectives: An open letter to law enforcement
- City faces potential lawsuit after code enforcement search declared unconstitutional
- ON Kilter: Fine line between dissension and anarchy; threat of class action against city
- Perspectives: Whose money is it anyway?
- Utah’s property rights ombudsman office launches website; find law, opinions easily on property issues
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.
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