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Tuesday, March 3, 2009

Stop Forfeiture Abuse

It's just wrong if the police can take your property when you have not been convicted of any crime, especially if the police can spend the money on themselves.

That's why, in 2002, a broad coalition passed Bill 1404 to reform asset forfeiture. You can read all about it in my series of articles:

Forfeiture Reform Bill Delayed
Asset Forfeiture Reform Passes First Vote
Asset Forfeiture Reform Advances
1404 Passes Senate Committee
1404 Set to Become Law

Unfortunately, a new bill -- sponsored by Democrats, no less, who belong to a party supposed to care about civil liberties -- threatens to undo the 2002 reforms.

The Colorado Springs Gazette editorializes:

The Colorado House Judiciary Committee will consider Thursday what has to be the most outrageous bill proposed in this session of the Colorado General Assembly, and perhaps in the last several years. House Bill 1238 would more than undo a law that received widespread bipartisan support in 2002, which prevents law enforcement from keeping the assets and proceeds from forfeitures, even when a suspect has been acquitted in court.

Loose translation: The new bill would allow law enforcement to take your home, your car, and your grandmother's jewelry on the mere suspicion you committed a crime, and they could keep it regardless of an acquittal by a jury of your peers or a dismissal of the criminal case by prosecutors. It's a bill that says, in essence, you're guilty if accused.


Writing for the Independence Institute, Mike Krause summarizes the bill as "an invitation to misgovernment." (Unfortunately, as Krause pointed out last month, "In 2007, the Democrat controlled legislature (with plenty of Republican support) approved HB 1275 which designates the Colorado National Guard as a law enforcement agency for the purpose of 'sharing in the federal asset forfeiture program' as part of the Guard's counter drug operation in Colorado. ... [The bill] blurs what should be a clear line between soldier and cop, sets a hugely dangerous precedent of military involvement in civilian law enforcement and increases the federal government's influence into the practices and priorities of state and local agencies and takes the disastrous war on drugs to a new level in Colorado.")

The Colorado Criminal Justice Reform Coalition -- a leader in the 2002 reforms -- also issued an action alert:

WHAT HB 09-1238 WOULD DO:

1. Erodes reasonable protections for property owners by
a. repealing the requirement that someone be convicted of a criminal offense before their property can be forfeited. (in a civil forfeiture action, a property owner does not have 5th Amendment protection against self-incrimination nor the right to counsel)
b. allowing for forfeiture even if the owner didn’t know that the property was used in violation of the law under the theory that he/she “reasonably should have known.”
c. repealing the requirement that the plaintiff prove that the property being forfeited was instrumental in the commission of an offense.

2. Reintroduces the profit motive to law enforcement and no longer requires forfeiture proceeds to be allocated through an accountable budgeting entity (like City Council or County Commissions) but rather allows law enforcement and prosecutors to keep a majority of the proceeds directly.

3. Removes any transparency and accountability by repealing all forfeiture reporting requirements and repeals the prohibition on transfer of forfeiture cases out of state court when local or state law enforcement were the seizing agency, with limited exceptions. ...

Current law ensures that forfeiture actions are fair and that property owners have due process without undermining law enforcement’s ability to use forfeiture as a legitimate tool. Current law also brings the revenue generated from asset forfeiture into an appropriate budget process and provides accountability while removing any appearance of impropriety. HB 09-1238 repeals these fundamental principals of fairness and due process. It also creates an unacceptable profit motive for law enforcement.


What good is the Democratic Party if it doesn't even stand up for basic civil rights? (Republican Shawn Mitchell played a pivotal role in passing the 2002 reforms, and Republican Bill Owens signed the bill.) Whether or not this bill makes it through a Democratic legislature will reveal a great deal about the soul of the Democratic Party.

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1 Comments:

Anonymous Anonymous said...

Colorado Asset Forfeiture Alert! Pending Bill HB09-1238

HB 09-1238 is a dangerous Asset Forfeiture Bill. The real estate industry might want to get more involved to stop this legislation,

No Conviction Would Be Necessary for police to forfeit property in certain Civil Asset Forfeitures. If this un-American bill is passed, it might be better to rent, not own Colorado real estate or businesses vulnerable to police forfeiture.

After you read HB 09-1238, you might come to the conclusion that Colorado business brokers and real estate agents should by law, disclose to property buyers the horrendous civil asset forfeiture provisions of HB09-1238 should this bill pass. Even if alerting real estate buyers means discouraging investors.

It is foreseeable “HB 09-1238 police forfeitures” without needing a conviction—could drive down property values in poorer communities where crime is higher; especially rental property.

Neighborhood schools and other government services dependent on already declining property taxes could be adversely affected.

What about rich neighborhoods? Colorado is famous for its rich resorts like Aspen where countless homes and condominiums are rented to vacationers. After HB09-1238 is passed, what are the odds of some Aspen rentals being rented to lawbreakers unbeknownst to their owners? Under HB09-1238 it appears vacation homeowners could be subject to civil asset forfeiture, lose his or her property if a court determined they had reason to know of certain lawbreaking activities at their home, e.g., don’t bring your teenagers to the Colorado vacation house—they might get into trouble—again. No one need be convicted of a crime for a vacation owner’s property to be civilly forfeited.

Even someone not intelligent should be able to determine that after a number of publicized “HB09-1238 forfeitures” less and less people will want to own rental and vacation property in Colorado; especially buyers of vacation homes who intended renting their property.

“HB09-1238 civil forfeitures” has the potential of driving down property values and collected real estate taxes. Some of the same county governments that supported this kind of asset forfeiture might have to layoff government workers, but probably not police, as police can help themselves through more asset forfeiture.

For Colorado Civil Asset Forfeiture Bill HB09-1238 go to http://statebillinfo.com/sbi/index.cfm?fuseaction=Bills.View&session=09&...

Some highlights of pending Forfeiture Bill HB09-1238:

Colorado police would need only claim a property or business was involved in a Class 1 public nuisance (5.1) (b) to seize the building and land.

Pending HB09-1238 effectively states, No Conviction Would Be Necessary” for police to forfeit property in many forfeitures...

Under HB09-1238 “Class 1 public nuisance” property owners appear to start out civilly guilty having to prove they did not “REASONABLY KNOW” of a public nuisance act or had notice of acts on their property creating a public nuisance.

Amazingly HB09-1238 would force property and business owners to defend their property by proving what he or she knew or did not know? It appears if an owner had one percent reason to know something they might lose one-hundred-percent of their property to civil asset forfeiture.

Shockingly HB09-1238 would Repeal—a court—staying a Civil Asset Forfeiture proceeding until a criminal trial related to the owner’s seized property was finished. Defendants could have difficulty defending their property in a civil asset forfeiture proceeding if any statement they make in a criminal trial might be used against them in a civil asset forfeiture proceeding or visa versa to take their property, i.e., trapped by collateral-estoppel evidence.

Owners found not guilty in a criminal trial under HB09-1238 might subsequently lose their property to Asset Forfeiture in a Civil Asset Forfeiture proceeding, not because an owner broke a law, but because he or she knew something regardless of criminal intent.

HB09-1238 would Repeal: In the event criminal charges arising from the same activity giving rise to the forfeiture proceedings are filed against any individual claiming an interest in the property subject to the forfeiture proceeding, the trial and discovery phases of the forfeiture proceeding shall be stayed by the court until the disposition of the criminal charges. A stay shall not be maintained during an appeal or 18 post-conviction proceeding challenging a criminal conviction…

HB09-1238
Would Repeal: That a conviction must be obtained in the same jurisdiction as the jurisdiction in which the forfeiture action is brought; That in specified circumstances a forfeiture action may proceed and judgment may be entered without a criminal conviction of the owner...

Would Repeal: That all forfeiture actions shall proceed in state district court if the property was seized by a local or state law enforcement agency as a result of an ongoing state criminal investigation...

Would Repeal: Allows a court to order any property subject to forfeiture to be sold by a sheriff in the manner provided for sales on execution. States how the proceeds of the sale shall be applied, including providing funding for mental health treatment and a victim notification network...

See Complete Asset Forfeiture Bill HB09-1238 Forfeiture At: http://statebillinfo.com/sbi/index.cfm?fuseaction=Bills.View&session=09&...

March 22, 2009 5:17 PM  

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