Mimesis Law
27 May 2020

Nebraska Police Forfeit Their Right to Seize Citizen’s Assets

Apr. 22, 2016 (Mimesis Law) — On April 20th, 2016, Nebraska’s Governor, Pete Ricketts, signed a bill ending most civil forfeitures within the boundaries of the state. From now on, if the government wants to secure a citizen’s property, it will first have to secure a criminal conviction, alongside North Carolina, Montana and New Mexico.

And Nebraska has decided to be a little smarter than North Carolina has been in barring civil forfeiture, because it also limits local police’s access to the Department of Justice’s recently revivified “equitable sharing” program.

Under that program, the Department of Justice encourages local law enforcement to ignore local laws in exchange for a large cut of whatever assets they can seize. Not only does this allow local law enforcement to ignore state voters’ decision on whether to forfeit assets, it also prevents local voters from deciding how the money seized is spent.

North Carolina, for instance, requires all forfeitures go towards education. But none of the millions seized through federal asset sharing has to go towards school books and hot lunches when it could instead be invested in Bearcats and roadside strip searches.  And because any assets that might be forfeited after a criminal conviction are often already gone by the time of trial (because the feds have already hoovered them up), the end result is that schools get considerably less money than they would if the federal government were not helping local law enforcement bypass the process.

Under Nebraska’s bill, law enforcement can only share assets with the federal government if:

(1) The money or property seized exceeds twenty-five thousand dollars in currency or value;

(2) The money or property is physically seized by a federal agent who is employed by the federal government; or

(3) The person from whom the money or property was seized is the subject of a federal prosecution or the facts and circumstances surrounding the money or property seized are the subject of a federal prosecution.

Exception number one might not sound like much of a protection. But in fact, most civil forfeitures are for relatively small amounts of cash or relatively inexpensive vehicles. As a result, 78% of Nebraska’s forfeitures were below $25,000.00. Of course, that still leaves 22% of forfeitures up for grabs, but the money limitation is a significant one.

Exception two also provides reasonable protection. Assuming that the language as written requires that the person seizing the property be a full-time federal agent (rather than a part-time “joint task force” or “borrowed” member of a local police), it might be quite rare that a local police force in Nebraska has access to a federal agent for a quick cash grab.

Now, that might be a big assumption. If people working jointly with the federal government are allowed in under this exception, then local police forces will likely find ways to put more officers on such task forces. But let’s live in hope for a moment and hope that having “DEA” written in crayon on your badge isn’t enough.

The third exception is the most ambiguous. I have no idea what it means to be “the subject of a federal prosecution.” Does that mean you’ve been arrested or indicted for a federal crime, or is mere suspicion enough? This could be a significant problem if being surveilled as part of a drug investigation, for instance, counts. Then, the DEA could simply direct local law enforcement to perform “whisper stops,” pretextual stops theoretically premised on a traffic offense, but really based on covert federal surveillance.

Obviously, the reform would not do much good if local police officers could claim to have “secret intelligence” from the DEA to justify stopping a motorist or seizing assets, thus making the motorist the “subject of a federal prosecution.” But, under a more rigorous (and defensible) reading of the law, this shouldn’t be possible. Hopefully, courts will read this exception to require at least an arrest on federal charges.

Nebraska’s decision is part of an exciting change of opinion across the United States. People hate civil forfeiture. When people learn how easy it is for the government to take their possessions, and then put the onus on them to prove that they were lawfully obtained, they start asking for change.

And while police departments argue that civil forfeiture is a public safety issue, granting them the funds to “fight crime,” the fact of the matter is that it distorts police priorities. Departments don’t hesitate when given the choice between seizing cash or drugs, because only the money is useful. Taking police off the teat of civil forfeiture might force them to start focusing on other, less profitable crimes, like burglary and theft, that often go unsolved.

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