Minnesota Bill Would Reform Asset Forfeiture Process, Opt Out of Federal Program

MINNEAPOLIS, Minn. (July 21, 2020) – A bill introduced in the Minnesota House would make some reforms to the state’s asset forfeiture process and close a federal loophole that allows police to bypass strict state asset forfeiture laws.

Rep. John Lesch (D-St. Paul) introduced House Bill 18 (HF18) on July 13. The legislation would establish a process to protect innocent owners from having property seized if somebody else used it in a crime. It would also place some limits vehicles and other property subject to forfeiture.

In addition to the reforms, HF18 would establish robust reporting requirements for each forfeiture conducted in the state. By increasing transparency, the legislation would allow Minnesotans to see the reality of asset forfeiture. As the saying goes, sunlight is the best antiseptic. Transparency often creates the momentum needed to drive future change.

HF18 would also opt Minnesota out of a federal asset forfeiture program. 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).

FEDERAL LOOPHOLE

“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 new 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 often bypass 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.

Until recently, 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.

HF18 would opt Minnesota out of the federal equitable sharing program with the following language.

“The appropriate agency shall not directly or indirectly transfer property subject to forfeiture under sections 18 609.531 to 609.5318 to a federal agency if the transfer would circumvent state law.”

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.

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 an “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

HF18 was referred to the Committee on Judiciary Finance and Civil Law Division where it must pass by a majority vote before moving forward in the legislative process.