Raising the bar on civil asset forfeiture


In my experience, civil asset forfeiture is a bit like hockey. People who care about the subject aren’t just in half-way, they know it cold. Recent action by the Newport Beach City Council should not only raise interest for those readers who have advocated for individual liberty and far greater due process protection, but also create interest for those who have never given the issue any thought.

But, first, a brief primer on the ills of most civil asset forfeiture laws.

Few issues bring together the Heritage Foundation and the ACLU, but the pernicious side effects of nobly-intended civil asset forfeiture laws have done just that. Congressman Darrell Issa explained last year in an op-ed that many jurisdictions have a low bar for seizing private property, stating that “civil asset forfeiture allows police to seize property as long as they believe that the assets in question were somehow connected to criminal activity.”

Various police chiefs around the country have described their departments’ reliance on seized assets, including one police chief from Columbia, Mo., who stated in a public hearing that seized assets were “pennies from heaven” and that seized assets get his department “a toy or something you need.” The New York Times has reported that even the IRS has seized control of personal bank accounts without ever charging or convicting the owner. The federal government has yet to adopt substantive reforms, but California recently took a half-step in the right direction.

Senate Bill 443 modified state law to require a conviction before state or local police can seize property worth less than $40,000, increased the government’s burden of proof from the civil “clear and convincing” standard to the criminal “beyond a reasonable doubt” standard, and plugged a loophole in state law that allowed agencies to partner with the federal government to operate under more lax rules.

The Orange County Register’s Editorial Board celebrated California’s half-step toward greater due process protection. The board correctly questioned, though, why we maintain a system where a law enforcement agency can act as judge and jury over any seized assets without a burden of proof that binds an actual judge or jury.

On March 14, 2017, the Newport Beach City Council unanimously overhauled its civil asset forfeiture and seizure policy to address those concerns. The new policy respects and exceeds the due process protections in place at the state and federal levels.

Newport Beach now “recognizes the taking of property due to alleged criminal wrongdoing is entitled to the same legal protection as the taking of a person into custody for alleged criminal wrongdoing.” Consistent with the Fifth Amendment to the United States Constitution, the city of Newport Beach “requires due process of law before a person be deprived of ‘life, liberty or property.’”

Furthermore, Newport Beach will not accept any seized or forfeited assets — no matter the value or type — unless due process has been afforded and unless all applicable federal, state and local laws, rules and regulations have been followed.

This ought to be the minimum standard for all cities, states and even our federal government. Congressman Issa’s op-ed last year noted that “the federal government needs to set a framework for smart reform.” Agreed. But cities throughout this country can and should act on their own to do the right thing rather than wait for congressional action.

In a time when police departments need good press — and most have certainly earned it — government leaders ought to be stepping forward and applauding those departments that have been holding themselves to higher standards. Especially those departments whose actions have not led to the egregious abuses newspapers highlight.

I am proud to count the Newport Beach Police Department among those departments whose policies match these higher expectations. I thank Police Chief Jon Lewis and his staff for working with the Newport Beach City Council to craft a policy that recognizes this higher due process standard. And by raising our standards to truly comport with due process and the rights of our citizens, I hope we can encourage others to raise the bar, and provide the protection that we all deserve.

Will O’Neill is a Newport Beach City Council member.



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