With asset forfeiture bill, Colorado legislators aim to steal your property

March 10, 12:19 PMCivil Liberties ExaminerJ.D. Tuccille

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Colorado Rep. Joe Rice is co-sponsor, with
Sen. Brandon Shaffer, of legislation that
would let officials take money and property
without proving a crime was committed.

In 2002, after years of government officials accusing people of crimes, then using the unproven allegations to steal their money, cars and valuables, often without even bringing charges against the original owners, the process of asset forfeiture was reformed in Colorado. The very sensible reform required officials to win convictions in court first, then take any property involved in crimes later. Now two lawmakers, Rep. Joe Rice and Sen. Brandon Shaffer, want to go back to the old way of doing things, short-circuiting due process and making residents of the state potential victims of highway robbery by the officials who are supposed to protect them.
 

The old procedure, still in place in many of the United States, was civil asset forfeiture. Based on medieval theories of law that allowed officials to bring charges against money and objects, civil asset forfeiture provided an easy means for officials to take cash, vehicles and even homes that they wanted without compensating the owners and without meeting the high standards of proof required in criminal courts. They were able to put seized assets to their own uses, which turned legalized theft into a lucrative revenue stream for many agencies. Not surprisingly, civil asset forfeiture became an abusive enterprise.

So it was reformed in 2002 by a law that required that assets be seized only from owners who had been convicted in court of crimes involving those assets: "No judgment of forfeiture of property in any forfeiture proceeding shall be entered unless and until an owner of the property is convicted of an offense listed in section 16-13-503." District attorneys were also required to report on their use of asset forfeiture so that the practice could be monitored for abuses.

No judgment of forfeiture of property in any forfeiture proceeding shall be entered unless and until an owner of the property is convicted of an offense listed in section 16-13-503.

But requiring that prosecutors actually prove their cases before they go on looting sprees is apparently too much for Rep. Joe Rice and Sen. Brandon Shaffer. They have introduced HB 1238 (PDF), which repeals the requirement for criminal convictions before money and valuables are seized by government officials. It also eliminates the reporting requirement , allowing asset forfeiture to proceed out of public view.

It really is a recipe for highway robbery.

That's not hyperbole. If you want to know what civil asset forfeiture looks like in the absence of criminal convictions and public scrutiny, look to Tenaha, Texas. In a years-long series of abuses now gaining national attention, local law enforcement has been -- no exaggeration -- using asset forfeiture to rob travelers. The San Antonio Express-News reports:

A two-decade-old state law that grants authorities the power to seize property used in crimes is wielded by some agencies against people who never are charged with — much less convicted of — criminal activity. ...

Linda Dorman, an Akron, Ohio, great-grandmother had $4,000 in cash taken from her by local authorities when she was stopped while driving through town after visiting Houston in April 2007. Court records make no mention that anything illegal was found in her van. She’s still hoping for the return of what she calls “her life savings.”

At least 140 people were robbed just between 2006 and 2008, according to the newspaper. There, as in the old days in Colorado, local officials get to keep what they take. And since the thieves wear uniforms, anybody who protests gets threatened with jail until they sign a waiver surrendering their possessions. Talk about your perverse incentives. 

That's the situation that Rice and Shaffer want to inflict on Colorado. The legislative duo explicitly propose to strip protections from the law so that uniformed predators of the sort that plague the roads around Tenaha, Texas, can mug the people of Denver, Durango and Littleton.

The Colorado lawmakers can't plead ignorance, since the protections they want to gut were put in place just seven years ago to address headline-grabbing abuses, and the festering situation in Texas is an object lesson in what asset forfeiture means in the absence of those protections.

Oddly enough, Texas lawmakers are considering legal changes of their own. Sen. John Whitmire, chairman of the Criminal Justice Committee, has introduced a bill tightening restrictions on the use of asset forfeiture, and ultimately wants to require convictions before assets can be seized.

That, of course, is the requirement that Rice and Shaffer want to abolish.

email J.D.: civilliberties (at) tuccille.com