Commentary: How cops prey on private property

Public funding of law enforcement agencies and the courts is meant to promote a fair and publicly accountable justice system. Yet more than 50 law enforcement agencies in Virginia are undermining public trust as they rake in big bucks from the seizure and forfeiture of private property.

Officially known as “civil asset forfeiture,” federal law allows local and state police officers to seize your cash, car or other private property on the mere suspicion that it is somehow connected to criminal activity – and without ever convicting or even charging you with a crime. The property is then turned over to the federal Department of Justice (DOJ) for proceedings under lax federal civil forfeiture laws – not under often more stringent state forfeiture laws. This stacks the deck against private property owners.

In addition, federal “equitable sharing” rules allow Virginia law enforcement agencies to keep up to 80 percent of the proceeds recovered from the forfeited property.

This federal gravy train is too tempting for some police departments to resist. Virginia state and local law enforcement agencies fattened their budgets in 2016 by more than $6.7 million through this practice, including the Fairfax County Police Department, $265,105; City of Alexandria Police Department, $590,637; Loudoun County Sheriff’s Office, $505,444; Town of Vienna Police Department, $2,404; and the Arlington County Police Department, $304,128.

Almost one-half of all forfeited funds, more than $3 million, went to the Shenandoah County Sheriff’s Office, while the Virginia Department of State Police pocketed $312,050.

A substantial portion of these amounts are taken from completely innocent Virginia residents who cannot afford the legal representation needed to get their money and property back. The poor are hit the hardest.

Formally adopted municipal budgets are important administrative vehicles allowing locally elected officials to maintain control over their police departments. The federal “equitable sharing” program undercuts this control mechanism by setting up a backdoor funding scheme not regulated by Virginia civil and criminal asset forfeited laws.

And, by giving police officers a huge financial incentive to aggressively target forfeitable assets, rather than pursue justice, the feds invite property rights abuse.

What to do? According to the Institute for Justice, a Washington-based public-interest law firm, Virginia lawmakers should follow the lead set by New Mexico and end asset forfeiture property seizures.

The 2015 New Mexico Forfeiture Act requires property seized by local and state law enforcement agencies, with few exceptions, to be adjudicated in, and under, New Mexico laws. Here is how it works.

First, the state of New Mexico acquires provisional title to all property seized by state or local law enforcement agencies at the time the property is used or acquired in connection with an offense that subjects the property to forfeiture. Provisional title authorizes the state to hold and protect the property.

Second, New Mexico law enforcement agencies are not permitted to directly or indirectly transfer seized property to a federal law enforcement authority or other federal agency unless the value of the property exceeds $50,000 or the alleged crime is interstate in nature or sufficiently complex to justify transfer.

Third, a person’s property is subject to forfeiture only after he or she is convicted, by clear and convincing evidence, in a state criminal court, of an offense to which forfeiture applies.

Fourth, law enforcement agencies cannot retain forfeited property. Forfeited currency and proceeds of the sale of forfeited property must be deposited in the state’s general fund.

Placing similar restrictions on Virginia law enforcement agencies would rebuild trust. Property owners in Virginia would no longer wonder if their law enforcement officials are following even-handed, due-process procedures, or padding their agency’s budgets at the citizens’ expense.

Dr. Ronald Fraser writes on public policy issues for the DKT Liberty Project, a Washington-based civil liberties organization. Email: fraserr@starpower.net