A new report published by the Libertas Institute, a free market think tank, reveals how a little-known new law greatly weakened legal protections for property owners facing civil forfeiture in Utah. Unlike criminal forfeiture, with civil forfeiture, someone does not have to be convicted of or even charged with a crime to permanently lose their property.
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Sponsors of the bill, HB 384, presented their amendments as a mere “re-codification” of the state’s forfeiture law. While some of the changes to Utah’s forfeiture laws might appear minor, they have significant consequences.
Take the state’s new statute on attorney’s fees. Previously, state law provided that “the court shall award a prevailing party reasonable attorneys’ fees and other costs of litigation reasonably incurred by the owner.” So if an owner won a civil forfeiture case, the government would have to pay for his or her legal expenses.
But HB 384 replaced “shall” with “may.” Before, the government was obligated to pay attorney’s fees when it lost a civil forfeiture case; now it’s optional. Even worse, the bill added a new cap on the amount of attorney’s fees: They “may not exceed 20 percent of the value of the property.”
In numerous civil forfeiture cases, the cost of litigation can be far more than the property that was originally seized. But fully compensating innocent owners for the attorneys’ fees they incur to recover their property is vital to stopping unjust forfeitures.
“Limiting the recovery of attorneys’ fees to 20 of the value of the property means that many innocent owners will not risk taking the government to court to get their property back,” remarked Institute for Justice Attorney and forfeiture expert Larry Salzman.
The bill also undermined an important safeguard against property seizures. Before HB 384, state law required prosecutors to meet a strict deadline for filing court papers seeking to keep the seized property. If they didn’t, the forfeiture could not proceed and the law provided that any prosecutor who missed the deadline “shall promptly return the property to its owner.”
But here again, “shall” was replaced with “may.” Now an innocent owner’s property can potentially be held indefinitely by the government, even when prosecutors miss key filing deadlines.
Utah’s stealth attack on due process and property rights is particularly distressing given that Utah once had one of the country’s better laws on civil forfeiture. Back in 2000, Initiative B, a citizen ballot initiative to reform the state’s forfeiture laws, passed with almost 70 percent of the vote.
The initiative sharply curtailed the financial incentive for police to conduct forfeitures and then pocket the proceeds, also known as “policing for profit.” Initiative B also placed the burden of proof on the government and provided defenses for innocent owners to protect them from unjust forfeitures.
But law enforcement would not go quietly. Prosecutors in three of Utah’s largest counties (Weber, Salt Lake and Davis) refused to abide by the initiative, keeping almost a quarter of a million dollars in forfeiture funds, even though they were required by law to transfer those funds to a state education fund. After the Institute for Justice threatened to sue in 2003, the prosecutors backed down and complied with Initiative B.
Without the incentive to police for profit, “since the passage of the initiative, forfeitures have all but stopped,” the Deseret News reported in 2003. Tellingly, this was also evinced by one of the prosecutors who initially refused to respect the will of the voters. After agreeing to abide by Initiative B, Salt Lake County District Attorney David Yocum remarked “Doing forfeitures is [now] way down the line in my priorities.”
But that victory was short-lived. In 2004, after heavy lobbying from representatives of law enforcement, the Utah legislature voted in favor of SB 175 and rolled back several reforms enacted by Initiative B. SB 175 was the first time in decades a citizen ballot initiative had been overturned by state lawmakers.
The 2004 law reversed one of the most important reforms implemented by Initiative B. Under a program called equitable sharing, police and prosecutors are allowed to bypass state laws on civil forfeiture by partnering with federal agencies. Local law enforcement can even receive up to 80 percent of the proceeds forfeited. In fiscal year (FY) 2012, the feds paid out almost $700 million in equitable sharing funds.
To prevent cops from doing an end run on Utah state law, Initiative B banned transferring seized property to federal agencies, unless there was a court order that met stringent criteria. The initiative also protected property rights and due process by declaring that these property transfers would not be approved “if such transfer would circumvent the protections of the Utah Constitution” or Initiative B.
SB 175 weakened this ban. The results were troubling. According to “Policing for Profit,” a nationwide survey of civil forfeiture laws published by the Institute for Justice, equitable sharing collapsed when Initiative B was in effect. The year before it passed in FY 2000, Utah received $226,524 from the federal Asset Forfeiture Fund (AFF). In FY 2002, that number plunged to $3,357. The very next year, it was $0.
But after SB 175 rolled back Initiative B in 2004, equitable sharing proceeds soared. In FY 2008, the most recently available year, Utah police received over $1.5 million.
Yet the 2013 bill, HB 384, went even further and eliminated the court order entirely. Not only that, the bill completely erased the language that ban transfers to federal agencies if it would go against the Utah Constitution.
Clearly, HB 384 undermines civil liberties. Yet it’s surprising just how little attention it received in the state legislature. When the bill was up for debate on the senate and house floors, there was scant discussion of its effect. In fact, when the bill was on the floor, it received less than four minutes of attention in each chamber. Without any opposition, the bill sailed through, unanimously passing both houses of the state legislature back in March.
In sharp contrast was the debate over SB 175. For starters, there was actually a debate. SB 175 was a contested fight, pitting property-rights activists against law enforcement, and generating plenty of media coverage. In the end, the votes on SB 175 were far from unanimous: The state Senate voted 16-9 in favor, while the state House voted 46-27 to revive policing for profit.
Given this egregious lack of deliberation over HB 384, Connor Boyack, president of the Libertas Institute, argues legislators “unknowingly gutted” forfeiture reform. “It’s extremely likely that no legislator took the time to read all of this text, especially since they were told that it was just re-codifying existing law,” he remarked in an interview.
Yet Boyack is determined. With the legislature back in session on January 27, Libertas is encouraging lawmakers to roll back this rollback. Indeed, Boyack was recently profiled by Radley Balko in The Huffington Post as part of “a fascinating movement for police reform—in Utah of all places.”
Policing for profit undermines civil liberties and property rights. The Utah Legislature should respect the will of the voters and reform civil forfeiture.