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Update on Law of Asset Forfeitures: Federal and Texas – Are You Any Safer?

As the general public becomes more and more aware, and more and more shocked, over police forfeiture actions – where private property is taken by law enforcement regardless of whether or not the owner has been involved in a crime, much less convicted, there’s been talk about changing forfeiture laws at both the federal and state level. Which is good.

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Why Forfeiture Grabs by Police Is So Shocking

It’s amazing for many folk to learn that after property is seized by law enforcement (despite no one being convicted of a crime or even charged) that the property is then used by prosecutors and police for their own purposes. That’s right: they go look around the forfeited stuff and use it for whatever they see fit: drive the car, spend the cash, whatever. Amazing, but true.

Even more amazing: the number of police departments and county law enforcement agencies that looked to forfeiture proceeds on an annual basis as part of their budget revenue stream. Grabbing property through forfeiture has become a revenue stream that many, many police organizations depend upon to make ends meet. Wow, right?

For details, check out this video “Policing for Profit” by the Institute for Justice:

Media coverage shining a light on the forfeiture scandal finally got some righteous indignation brewing and changes are hopefully on their way to fix this injustice. So, what’s the latest regarding asset forfeitures by police in Texas and around the United States?

1. What About the County Forfeiture Property Personally Used by Dallas District Attorney?

Here in Dallas, we’re still not sure what all happened with Dallas County forfeiture accounts. As Dallas District Attorney, Craig Watkins has some explaining to do — but that investigation is ongoing. The last media reports on the Watkins forfeiture story are that the federal authorities have ordered the Porsche Boxster that Watkins’ office purchased with forfeiture money, not be auctioned.

For more on the Dallas District Attorney Forfeiture Case, see “Dallas D.A. Forfeiture Funds: The Temptation of All That Stuff and the Craig Watkins Scandal.

 

2. Federal Forfeiture Changes Announced by Attorney General

A. January 2015

Earlier this year, in January 2015, then-Attorney General Eric Holder announced that there would be changes made regarding how federal forfeiture laws would be followed. It sounded good, but looking more closely at what was really happening here the announcement might not prove to be substantively important.

Key here: the Attorney General announcement involved how federal forfeiture laws would be enforced, but there are also state forfeiture laws available to local police and state law enforcement which are not impacted by his order since the federal government doesn’t control state law here (yet).

See, “Holder’s New Limits on Asset Forfeiture: Big Deal.

From the January 2015 Order issued by AG Holder, federal agencies were immediately stopped from “adopting” property that had been seized by state or local law enforcement unless that forfeiture property “directly related” to public safety concerns.

What are these public safety concerns?

Well, it means that they can still “adopt” seized property like guns, rifles, bullets, firearms, ammunition, bombs, explosives, and anything connected with child pornography (hard drives, laptops, and the like). The January 2015 prohibition from “adopting” property means that the feds cannot “adopt” things like cash, jewelry, cars, SUVs, or other things of value.

From the press release issued at the time: “The new policy will ensure that adoption is employed only to protect public safety, and does not extend to seizures where state and local jurisdictions can more appropriately act under their own laws.”

B. March 2015

In March 2015, Eric Holder made another announcement. Federal agencies would immediately be barred from seizing via forfeiture laws any bank accounts unless there were documented support that the bank accounts were connected to criminal activity with evidence of large illegal transactions moving through that account.

This Department of Justice order means that federal agents (think the FBI and the IRS) cannot seize money willy nilly from accounts because of suspected “structuring” like they had been doing, and which had been revealed in media exposes like the stories of Mom and Pop outfits having their bank accounts targeted by IRS structuring forfeiture grabs.

 

3. Proposed Changes to State of Texas Forfeiture Laws: Will Pending Bills Become Law?

The Texas Legislature has also been considering changes to state forfeiture laws. Several bills were introduced this session to deal with all this zany forfeiture property grabbing by law enforcement around the state. However, it’s a long way from a bill being written and introduced by a lawmaker and that bill actually becoming law.

Lots of proposed bills dealing with aspects of reforming state forfeiture practices were written and introduced. These include:

  1. HB 2116 was introduced as a proposed law that would restrict how the prosecutors and the police around Texas could spend forfeiture property and seized funds. It would also require written reports regarding what was spent and how it was spent to be published by the police department online.
  2. HB1012 if passed would force prosecutors to prove the assets are connected to criminal activity by a “clear and convincing” standard of proof. That’s very high. Much higher than what they must meet now in their burden of proof which is a much lower “preponderance of the evidence” threshold.
  3. HB 530 if it becomes law will authorize forfeiture assets to be used for college scholarships to children of peace officers killed in the line of duty. It also would require reporting on the total amount of forfeited property in Texas on a yearly basis.

The time is ticking on the current legislative session. Whether or not there will be ANY substantive changes made to state forfeiture laws remains to be seen. Prosecutors and police, for instance, are really unhappy with the idea of reporting what they grabbed and how they used it — and their lobbying influence is being felt in Austin.

So, will Civil Forfeiture Wrongs and misuse of private citizen’s assets and grabbing of bank accounts be stopped and corrected here in Texas or the rest of the United States?

Not yet.

There’s still a big danger of your assets being taken by the authorities without you being charged or convicted of a crime. The sad truth is that you still need to be ready to defend yourself after it’s happened.

For more see our web resources and Michael Lowe’s Case Results including:

 


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