A central function of government is to protect us from getting our stuff stolen. Far too often, government agents instead engage in legalized theft. By some estimates for some years, government seizes more wealth than burglars do. Thankfully, a new bill would substantially limit the problem in Colorado.
The Institute for Justice describes the general problem: “Unlike criminal forfeiture, which takes property from convicted criminals, under civil forfeiture, property owners do not have to be convicted of a crime, or even charged with one, to permanently lose their cash, cars, businesses or even their homes.”
Thankfully, the legislature has made some effort to curb abuses. A 2017 Legislative Council report summarizes: “Generally, Colorado law requires a conviction prior to a forfeiture judgment by the court, so a district court will suspend civil forfeiture proceedings related to a case until a criminal conviction is obtained.”
Limiting government theft
Big problems remain. Sometimes federal agencies federalize state and local law enforcement agents in order to evade Colorado’s due-process requirements. And often fighting the government to keep one’s own property is overly burdensome.
With respect to the federal problem, at least the legislature has tried to require transparency. The Institute for Justice reported in 2017: “Colorado Gov. John Hickenlooper signed HB 17-1313, a bill that bolsters transparency for civil forfeiture and closes a federal loophole that has generated millions in forfeiture revenue for law enforcement.”
IJ continued: “Between 2000 and 2013, Colorado agencies received more than $47 million through the U.S. Department of Justice’s equitable sharing program. By comparison, that is nearly four times more than what was forfeited under state law during the same period.”
Let us pause here to note the absolute insanity of referring to legalized theft by multiple agencies as “equitable sharing.”
The 2017 bill also limits local participation in federal asset forfeiture to relatively big cases. The bill states: “A seizing agency or participant in any joint task force or other multijurisdictional collaboration shall accept payment or distribution from a federal agency of all or a portion of any forfeiture proceeds resulting from adoption or a joint task force or other multijurisdictional collaboration only if the aggregate net equity value of the property and currency seized in a case is in excess of fifty thousand dollars and a forfeiture proceeding is commenced by the federal government and relates to a filed criminal case.”
Last year, the legislature passed a short reform bill beefing up the reporting requirements. The summary says, “The act requires that a report related to a seizure and forfeiture include the estimated value and equity of the property and information on the outcome of the forfeiture proceeding.” Colorado has various other safeguards as well, including relatively good burden-of-proof rules.
More work to be done
This year, the legislature has another opportunity to limit legalized theft in Colorado. House Bill 24-1023, sponsored by Republicans Ken DeGraaf and Mark Baisley, would add a number of important safeguards.
The bill requires the government usually to file “a civil complaint against the property within ninety days after the seizure of the property.” Notice the strange language here about the government complaining about property rather than the person allegedly misusing the property or improperly gaining it. That is the fundamental absurdity on which civil asset forfeiture is based, the pretext by which government engages in legalized theft in defiance of the Bill of Rights. At least the bill tightens up the process.
The bill affirms that government must establish “by a preponderance of the evidence that the seized property is an instrumentality of, or proceeds derived directly from, the crime for which the owner is convicted.”
The bill strongly encourages, although does not absolutely require, that “the court that has jurisdiction in the associated criminal matter must have jurisdiction in the civil forfeiture action.” Still, the bill makes that the default.
Notably, the bill also sets up a fund to pay for legal representation in civil forfeiture cases for people who cannot afford a lawyer. This will help to restrain government agents from bullying people out of the property. In general, the bill seeks to make it easier for someone facing a civil forfeiture complaint to defend against it.
An important part of the bill deals explicitly with relations between local and federal law enforcement. The bill absolutely prohibits state and local law enforcement agencies from seizing property on their own under state law, then involving the feds for purposes of laundering the proceeds of civil asset forfeiture through the federal system. This is very good!
The bill also continues to limit civil asset forfeiture resulting from collaborations between state or local and federal agencies. The bill says that state and local agencies may collect proceeds from forfeiture only in federalized cases involving more than $50,000 in U.S. currency. Although the cutoff is somewhat arbitrary, the goal here is to cut down on the number of cases in which state and local agencies invite federal involvement for purposes of divvying up the loot. State and local agencies should have the incentive to resolve state and local matters within Colorado and according to Colorado law.
When the federal government steals
The federal problem needs to be fixed at the federal level. As the bill affirms, “Nothing in” it “prohibits the federal government, acting alone, from seizing property and seeking forfeiture of property under federal law.”
The bill does ask the Colorado Attorney General to “consult with the United States Attorney for the District of Colorado and establish guidelines for joint task forces and multijurisdictional collaboration” that are “consistent with state law to avoid, when possible, the circumvention of state forfeiture law.”
This sounds to me like asking federal agents “pretty please” not to engage in legalized theft with Colorado agents within Colorado, “when possible.” But there’s only so much Colorado legislators can do to stem federal corruption. I’m sure the United States Congress, as healthy and functional as it now is, will get straight to work on fixing that broader problem (sorry, I didn’t mean to make you spit out your coffee).
IJ’s Lee McGrath tells me that the ideal solution is to “end civil forfeiture and replace it with criminal forfeiture.” There’s currently a bill in Nebraska (916) to do just that. Other states including New Mexico already have made the change. The bill in Colorado, although it keeps civil forfeiture, adds substantial safeguards.
The principle in the relevant context is simple: If the government cannot prove you committed some crime directly related to some property, government agents should not be able to take and keep your stuff. Period. Any lesser standard excuses legalized theft.
Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.
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