JEFFERSON CITY, Mo. (March 31, 2022) – Today, a second Missouri House unanimously committee passed a bill that would close a federal asset forfeiture loophole in most situations.

Rep. Tony Lovasco (R-O’Fallon) filed House Bill 1613 (HB1613) on Dec. 1. The proposed law would prohibit Missouri law enforcement agencies or prosecutors from transferring property seized under state law to a federal agency by way of adoption or other means for the purpose of the property’s forfeiture under federal law.

HB1613 would additionally require state agents deputized as federal agents while operating with a federal task force to transfer any seized property to the state prosecuting authority for forfeiture under state law unless the seizure includes U.S. currency that exceeds $50,000.

Very few forfeitures include more than $50,000 in cash.

In effect, HB1613 would withdraw Missouri from the federal program known as equitable sharing in most situations. 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 31, the House Rules – Legislative Oversight Committee unanimously passed HB1613.

NECESSARY

While some people believe the Supreme Court “ended asset forfeiture,” the Supreme Court 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. 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 HB1613 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

HB1613 will now move to the House floor for further consideration.

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