Center for Property Rights

C⁠i⁠v⁠i⁠l forfe⁠i⁠⁠t⁠ure laws — an assaul⁠t⁠ on proper⁠t⁠y r⁠i⁠gh⁠t⁠s ⁠i⁠n Flor⁠i⁠da

By: The James Madison Institute / 2016

Naples Daily News
Civil forfeiture laws — an assault on property rights in Florida
By: Daniel Peterson

Guest commentary

Did you know your property could be seized by law enforcement officials based on the suspicion you have committed a crime?

In fact, in 2014, law enforcement seized more property than burglars did. Yes, you read that correctly. This is a little-known, but shocking fact from the Institute for Justice of which Floridians should be aware.

The reason? Under the current policy of civil forfeiture, law enforcement officials can stop you, seize your property and assume ownership of it without making a charge or arrest.

Once proven innocent, it is up to the owner of the seized property to pursue having that property returned. This may involve hiring an attorney and going through lengthy, expensive legal proceedings. For this reason, many owners either accept a settlement offer for less than the value of their seized property or simply walk away without claiming their rightfully owned property.

Civil forfeiture was initially used in the U.S. to enforce duties and excise taxes. In the 1980s, law enforcement agencies began to use it to supplement their resources. Vehicles, boats, cash, jewelry and other forms of property have been seized and, in some cases, kept and used by the agency for its operations or to purchase equipment. Other times, it has been sold for profit or given to a favored charity.

It is not difficult to see how corruption could propagate due to the potential profit motive through seizure. In many cases, the seizure of cash was particularly attractive.

Justin Pearson of the Institute for Justice wrote about one well-publicized example of civil asset forfeiture in Volusia County on Florida's central east coast that took place during the 1990s:

The Volusia County sheriff recognized that drugs entered the county on one side of Interstate 95, with the proceeds returning in the other direction. Rather than attempt to stop the drugs, which the sheriff obviously could not sell or apply to his budget, the sheriff instead focused his resources on trying to intercept the money going back out. The sheriff specifically targeted minorities, and the only evidence required for seizure was the mere fact that the driver had cash in (his) possession.

Documentation proving the legitimacy of the money was irrelevant, as discovered by Navy reservist Bobby Jones, who provided pay stubs for his $3,989, but watched in horror as his money was seized anyway. More than 75 percent of Volusia County's seizures resulted in zero arrests.

Many states have reformed their civil forfeiture laws to remove potential profit motives. For example, the North Carolina Constitution requires all seized funds to be applied to public schools.

However, a more important question remains: Regardless of where the seized property ends up, is it right to take property based on suspicion and without an arrest being made?

Addressing this concern, several states have banned civil forfeiture or now require a criminal conviction. These kinds of reforms would serve citizens' property rights and build confidence in law enforcement.

A Senate bill dealing with this issue, sponsored by Sen. Jeff Brandes and co-sponsored by incoming Senate President-designate Joe Negron, passed through its final committee stop on Monday. The House counterpart (sponsored by Reps. Larry Metz and Matt Caldwell), which also prohibits seizure without arrest and clarifies what should happen to seized property, passed out of its final committee stop last week. The bills will now be heard on the floor of the House and Senate as early as next week.

Brad Cates, former director (1985-89) of the U.S. Justice Department's Asset Forfeiture Office, wrote an op-ed in The Wall Street Journal recognizing that civil asset forfeiture is now policing for profit.

During the Reagan administration, I helped establish these programs because I believed they would quickly channel seized criminals' profits into the fight against organized crime and drug cartels. Yet over time, we have created a new bad incentive: policing for profit, out of the reach of the proper legislative budget process. … Three decades ago I helped create our civil asset forfeiture system; now it is time to end it.

John Adams, one of our nation's Founding Fathers proclaimed, Property must be secured or liberty cannot exist.

This legislation is an important step in the right direction for protecting Floridians' liberty and their property rights. The time is now to move forward on reform.