In January, the U.S. Justice Department curtailed the ability of state and local law enforcement agencies to piggyback on federal law as cover for seizing billions in cash and property from people who are never formally charged with wrongdoing.
Nevada lawmakers now have an opportunity to build upon that federal reform. Legislation introduced in Carson City would protect Nevadans from the danger of subjugating the presumption of innocence to policies that let state and local police agencies seize and keep money, cars, homes or other property without a warrant or criminal charge.
Under the legal doctrine of civil forfeiture, police may seize valuables they merely suspect could be linked to criminal activity — in essence, the property itself is deemed “guilty.” The property owner need never be arrested or even charged with a crime. And while the state bears the burden of proof in a criminal proceeding, that burden is reversed in a civil forfeiture case. Innocent owners who opt to fight must undertake the expensive and cumbersome task of demonstrating that they acquired the property legally.
In addition, these laws — which proliferated in the 1980s as part of the drug war — often permit law enforcement agencies to keep a large portion of the value of their confiscated booty. As part of the Justice Department’s “equitable sharing” program, the target of January’s reform, the federal government would “adopt” local seizures, allowing state and local law enforcement to pocket most of the proceeds from the property while cutting in the feds on the rest — in some cases, skirting stricter state laws in the process.
Not only did this cozy arrangement encourage abuse, it provided an incentive for departments to pursue forfeiture revenues at the expense of other priorities. The Washington Post reported last September that “298 departments and 210 task forces have seized the equivalent of 20 percent or more of their annual budgets since 2008.” The Post also found that in the 13 years since the 9/11 attacks, state and local police agencies across the country grabbed almost $2.5 billion in cash from drivers and others who were never charged, with half the seizures less than $8,800.
Nevada has seen its share of such cases.
In September 2013, Tan Nguyen was pulled over on Interstate 80 outside Winnemucca in for going 78 mph in a 75 mph zone. The traffic stop advanced beyond routine when the Humboldt County sheriff’s deputy thought Mr. Nguyen appeared fidgety and decided to go through the vehicle. The search turned up a briefcase containing $50,000 in cash, which the deputy confiscated. Mr. Nguyen was never arrested or indicted for any crime. The deputy found nothing illegal in the car — and, in fact, didn’t even cite him for speeding.
After expropriating the $50,000, the deputy told Mr. Nguyen to hit the road unless he also wanted his car impounded. He complied. A day later, the sheriff’s office released a video of the deputy with the money, proclaiming that the windfall would “benefit Humboldt County with training and equipment.”
Mr. Nguyen eventually got his $50,000 back after he filed suit, as did a handful of other motorists with similar horror stories on that remote stretch of I-80. But to ensure that such injustices aren’t repeated, Republican state Sens. Don Gustavson of Sparks and James Settelmeyer of Minden have sponsored Senate Bill 138, a model for other states seeking to ensure that innocent citizens don’t become victims of forfeiture abuses.
Despite the recent changes limiting the Justice Department’s “equitable sharing” arrangement, law enforcement officials remain free to seize and forfeit property under their own state laws, which vary widely.
In the 2010 report “Policing for Profit,” the Institute for Justice ranked states on how well they protected property owners from the overzealous application of forfeiture statutes. Only three states mustered a B grade. Nevada received a D+.
SB138, however, would move Nevada to the head of the class.
Not only does the legislation demand that any forfeiture be accompanied by a criminal conviction, plea bargain or other agreement, it switches the burden of proof to prosecutors to justify forfeiture from co-owners or associates of the accused.
The law would also remove the profit incentive by directing forfeiture proceeds to the state general fund. Finally, SB138 would impose transparency by mandating that Nevada police agencies provide annual reports to the state on their seizure activities.
Many law enforcement officials defend the current forfeiture laws as an effective and valuable tool in the fight against crime. But the Bill of Rights wasn’t enshrined in the Constitution for the purpose of empowering the government over its citizens — quite the opposite. Laws that allow police to seize cash, jewelry, homes and other valuables solely on the hunch of illegal conduct mock the principles that enrich and define a free society — such as liberty, justice and property rights — if not paired with meaningful judicial review in which the state must prove both the suspect’s guilt and a link between crime and the property.
Nevada lawmakers have many high-priority proposals to consider before the session’s scheduled end on June 1. Senate Bill 138 should be among them.
Las Vegas resident John Kerr is a communications fellow with the Institute for Justice, a public-interest law firm based in Arlington, Va. He is the former editorial page editor of the Review-Journal.