JEFFERSON CITY, Mo. (March 20, 2019) – A bill introduced in the Missouri Senate would close a loophole allowing state and local police to circumvent stringent state asset forfeiture laws by passing cases off to the feds.

Sen. Ed Emry (R-Lamar) introduced Senate Bill 494 (SB494) on Feb. 28. The legislation would prohibit Missouri law enforcement agencies or prosecutors from entering into agreements to transfer seized property to a federal agency by way of adoption or other means for the purpose of the property’s forfeiture under federal law. The bill is a companion to House Bill 444 (HB444) which unanimously passed the Special Committee on Criminal Justice last month.

The proposed law would also require any Missouri law enforcement agency participating in a joint task force with federal agencies to transfer responsibility for the seized property to a state prosecutor for forfeiture under state law.

Additionally, if a federal agency refuses to participate in this way, the law enforcement agency would be fully “prohibited from accepting payment of any kind or distribution of forfeiture proceeds from the federal agency” under a process known as “equitable sharing.”

NECESSARY

While some people believe the Supreme Court “ended asset forfeiture,” the recent opinion in Timbs v. Indiana ended nothing. Without further action, civil asset forfeiture remains. Additionally, as law professor Ilya Somin noted, the Court left an important issue unresolved. What exactly counts as an “excessive” in the civil forfeiture context?

“That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal.”

Going forward, opponents of civil asset forfeiture could wait and see how lower federal courts will address this “over the next few years,” or they can do what a number of states have already taken steps to do, end the practice on a state level, and opt out of the federal equitable sharing program as well.

IN EFFECT

Missouri has some of the best state-level forfeiture restrictions in the country, according to the Institute for Justice. The state requires a criminal conviction before prosecutors can proceed with forfeiture, and law enforcement agencies don’t get a cut of the proceeds. But federal asset forfeiture standards are much lower. As a result, state and local police often pass cases to the feds to avoid the more stringent state laws.

The situation in California was similar until recently. The Golden State state also has some of the strongest state-level restrictions on civil asset forfeiture in the country, but until the state closed the loophole, law enforcement agencies would often bypass the state restrictions by partnering with a federal asset forfeiture program known as “equitable sharing.”

This federal program allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. Closing this loophole is particularly important in light of a policy directive issued in July 2017 by then-Attorney General Jeff Sessions for the Department of Justice (DOJ).

Under these arrangements, state officials can simply hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds—even when state law banned or limited the practice. According to a report by the Institute for Justice, Policing for Profit, California ranked dead last of all states in the country between 2000 and 2013 as the worst offender. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. During the 2016 legislative session, the state closed the loophole.

Like California, Missouri was also among the states with the highest level of federal forfeiture between 2000 and 2013, raking in $126 million in Department of Justice equitable sharing proceeds in that time.

Passage of SB494 would close the loophole and significantly increase protections for Missouri property owners.

As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. 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.

WHAT’S NEXT

SB494 was referred to the Senate Judiciary and Civil and Criminal Jurisprudence Committee where it must pass by a majority vote before moving forward in the legislative process.

Mike Maharrey

The 10th Amendment

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