CONCORD, N.H. (March 7, 2022) – On Friday, a New Hampshire House committee approved a bill that would take the first step toward closing a loophole allowing state and local police to circumvent more stringent state asset forfeiture laws by passing cases off to the feds.

A coalition of seven Republicans introduced House Bill 1101 (HB1101) on Jan. 5. The proposed law would ban police from transferring property seized under state law to a federal agency for federal forfeiture. Asset forfeiture cases would have to be adjudicated under the more stringent forfeiture process. But the legislation would allow state and local law enforcement agencies to pass forfeiture cases to the feds if they participate on a federal task force.

“Paragraph I shall only apply to a seizure by a state or local law enforcement agency pursuant to its own authority under state law and without involvement of the federal government in the seizure. Nothing in paragraph I shall be construed to limit state and local law enforcement agencies from participating in a joint task force with the federal government.”

On March 4, the House Judiciary Committee voted HB1101 “ought to pass” by a 17-4 vote.

THE FEDERAL LOOPHOLE

A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. The DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.

Law enforcement agencies can circumvent more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.

California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. 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. The state closed the loophole in 2016.

According to the Institute for Justice, federal equitable sharing revenues in New Hampshire dwarf state asset forfeiture revenues by a factor of 10. That means state agencies are transferring most cases to the feds.

The passage of HB1101 would prohibit police from transferring at least some cases to federal authority. But property seized by a joint task force could still be transferred to the feds to take advantage of the less stringent federal forfeiture process and equitable sharing.

We don’t really have any way of knowing how many cases the federal government adopts through task forces and how many cases are investigated solely by the state and then sent to the feds after the fact. And as an attorney with the Institute for Justice put it, “what it means to be on a joint task force can be murky.”

An IJ lawyer testified in support of the bill. He said even incremental steps are important. He also said it provides an opportunity to educate legislators who “face tremendous difficulties learning a subject well enough to overcome their deference to law enforcement.”

NECESSARY

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

WHAT’S NEXT

HB1101 will now move to the full House for further consideration.