JEFFERSON CITY, Mo. (March 11, 2021) – On Tuesday, a Missouri House committee held a hearing on a bill that would close a loophole allowing state and local police to circumvent stringent state asset forfeiture laws by passing cases off to the federal government.

Rep. Tony Lovasco (R-O’Fallon) filed House Bill 750 (HB750) on Jan. 7. The proposed law 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 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 prohibits the transfer of the property to the state, the law enforcement agency would be fully “prohibited from accepting payment of any kind or distribution of forfeiture proceeds from the federal agency.

In effect, HB750 would withdraw Missouri from the federal program known as equitable sharing. This 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) that remains in effect today.

On March 9, the House Special Committee on Criminal Justice held a public hearing on HB750, an important first step in the legislative process.

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 “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 the federal government through the equitable sharing asset forfeiture program.

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 as the worst offender of all states in the country between 2000 and 2013. 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 during that time.

Passage of HB750 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

The Special Committee on Criminal Justice must pass HB750 by a majority vote before it can move forward in the legislative process.

Mike Maharrey