Center for Property Rights

Res⁠t⁠or⁠i⁠ng Balance ⁠t⁠o Asse⁠t⁠ Se⁠i⁠zures

By: Guest Author / 2016

Florida is a governor’s signature away from having one of the weakest civil asset forfeiture laws in the country to one of the strongest.

Civil asset forfeiture is the practice by law enforcement of seizing property (cash, cars, boats, homes, etc.) suspected of being involved in criminal activity. And they can keep it even if the owner is never charged with a crime, let alone convicted. Law enforcement agencies auction off the seized property and keep most or all of the proceeds for their own use, such as for purchasing equipment.

That has created a perverse incentive for law enforcement to aggressively pursue civil forfeiture — what critics have dubbed “policing for profit.” According to a 2015 report by the Institute for Justice, a non-profit libertarian public interest law firm, in 1986 the Department of Justice’s Assets Forfeiture Fund took in $93.7 million in revenue from federal forfeitures. By 2014, annual deposits had reached $4.5 billion — a 4,667 percent increase.

State seizures also increased at similarly frenzied paces. Volusia County in particular became a notorious national example in the 1990s when then-Sheriff Bob Vogel and his deputies seized more than $6.5 million in cash from cars stopped along Interstate 95. In three-fourths of the cases, no charges were filed.

Seizing assets with such gusto can lead to abuses of individuals’ property and due process rights. Property owners can contest the seizures, but the government’s burden of proof often is lower than in criminal cases. According to the American Civil Liberties Union, many people can’t afford to hire a lawyer to contest the seizures, and for those who can the fight often costs more than the value of the property seized.

In response to growing public awareness the DOJ last year placed limitations on a program that encourages states to share seized assets with the feds. And in Florida this year, Sen. Jeff Brandes, R-St. Petersburg, finally convinced his fellow lawmakers — and law enforcement agencies — to support significant reform of the state’s forfeiture laws, which the Institute for Justice previously had graded a D-plus.

Brandes’ bill passed unanimously in the Senate, as did its companion in the House, after drawing broad approval from the likes of the Florida Sheriff’s Association, the Florida Association of Police Chiefs, Americans for Forfeiture Reform, the Florida ACLU, the Florida Association of Criminal Defense Lawyers, the Institute for Justice, the James Madison Institute and the Americans for Tax Reform.

The biggest change would require an arrest before property could be seized in most cases, which would eliminate the kind of abuses perpetrated by the Volusia County Sheriff’s Office in the 1990s. Another key provision of the bill would require the state to prove “beyond a reasonable doubt” that property was involved in criminal wrongdoing. That’s the highest legal burden, and a marked shift from the current standard, which is “clear and convincing” (several states apply even lower standards −“preponderance of the evidence” or “probable cause”). Those two reforms alone substantially improve due process.

The bill also requires police to obtain a warrant within 10 days of taking property, whereas under current law the seizure is never evaluated unless the defendant challenges it. The bill also requires law enforcement to report how much and what kind of property is seized. Currently, no reporting is required, which is astonishing.

Finally, to deter frivolous seizures, the bill requires police to pay a $1,000 filing fee and give the property owner $1,500 if a judge finds the state did not have probable cause to seize the property. In addition, the victim of a frivolous seizure can get up to $2,000 in attorney fees.

Gov. Rick Scott should not hesitate to sign into law a bill that restores much-needed balance between law enforcement and property rights.