TALLAHASSEE, Fla. (April 4, 2016) – Florida Gov. Rick Scott signed a bill into law Friday that reforms the state’s asset forfeiture laws, but a federal loophole effectively renders even the modest improvements in state law potentially meaningless.

Sen. Jeffrey Brandes (R) sponsored Senate Bill 1044 (SB1044). As introduced, the legislation would have require criminal prosecution and conviction of the property owner before finalizing asset forfeiture.

The new law doesn’t go that far.

After amendments were passed in the committee hearing process, it only requires an arrest before seizing most assets. Theoretically, the state can still proceed with forfeiture even if prosecutors never charge the owner of the property with a crime.

The new law does provide some additional protection to property owners. Any law enforcement agency initiating a seizure will have to pay a $1,000 filing fee and post a $1,500 bond. An arrest won’t be required for cash seizures. Under the new law, prosecutors will have to prove beyond a reasonable doubt that that property was linked to a crime in order to make forfeiture permanent.

The House and Senate both unanimously passed SB1044 and law enforcement was generally supportive – after amendments were made – a sure sign reforms didn’t go as far as needed.The new law will go into effect in July.

While the new law does not completely reform Florida’s asset forfeiture laws, and leaves plenty of opportunities for law enforcement to take property belonging to innocent people, it does represent modest improvement over the status quo and a solid step forward. Unfortunately, a loophole in the law makes these reforms totally ineffective in practice and needs to be closed.

FEDERAL LOOPHOLE

State and local law enforcement in Florida can easily bypass the more stringent state law by turning cases over to the federal government. This will allow forfeiture to proceed under federal law that doesn’t even require an arrest.

This very scenario plays out frequently in states with strong asset forfeiture laws like California. Police simply avoid such restrictions by turning cases involving seized assets over to the feds. In return, state and local agencies get up to 80 percent of the proceeds from forfeited assets back through the Federal “Equitable Sharing Program.”

To make its forfeiture reforms effective, the Florida legislature will need to pass a law closing this loophole. This can be done with simple language.

A law enforcement agency or prosecuting authority may not enter into an agreement to transfer or refer seized property to a federal agency directly, indirectly, by adoption, through an intergovernmental joint taskforce or by other means for the purposes of forfeiture litigation and instead must refer the seized property to appropriate local or state prosecuting authorities for forfeiture litigation under this chapter unless the seized property includes U.S. currency in excess of $50,000.

In late December 2015, many advocates of asset forfeiture reform cheered when the U.S. Department of Justice suspended payments through the Equitable Sharing Program. This removed the “policing for profit” motive to pass off cases to the feds. But the celebration was short-lived. The DOJ recently announced it was restarting the Equitable Sharing Program.

As the Tenth Amendment Center previously reported the federal government has inserted itself into the California’s asset forfeiture debate. The feds clearly want the policy to continue.

Why?

We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.

Florida’s efforts to reform forfeiture laws are commendable, but until the legislature addresses the federal loophole, they are nothing more than symbolic gestures from a practical standpoint.


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