Pubdate: Sun, 22 Mar 2015
Source: Las Vegas Review-Journal (NV)
Copyright: 2015 Las Vegas Review-Journal
Contact: http://www.reviewjournal.com/about/print/press/letterstoeditor.html
Website: http://www.lvrj.com/
Details: http://www.mapinc.org/media/233
Author: John Kerr
Note: 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.

IT'S TIME TO END POLICING FOR PROFIT

Civil Forfeiture Puts Burden of Proof on Suspects, Not State

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.
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MAP posted-by: Jay Bergstrom