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House Bill 202

House Bill 202

Phil Haunschild
February 28, 2017

Bill description: This bill amends the procedures for seizure of civil assets by law enforcement.

Rating: +5

Analyst’s Note: This bill was amended March 16 in the Senate. These amendments made minor changes in the wording throughout and specifically clarified what information must be submitted by both state and local law enforcement agencies.

Does it in any way restrict public access to information related to government activity or otherwise compromise government transparency or accountability? Conversely, does it increase public access to information related to government activity or increase government transparency or accountability? 

This bill would increase government accountability by establishing reporting requirements for any agencies which have seized assets. 37-2744(j) includes a list of information to become part of the public record in the Controller's Office. This list would include “(1) Name of the law enforcement agency that seized the property; (2) Date of seizure; (3) Type and description of property seized, including make, model, year, and serial number, if applicable; (4) Crime for which the suspect was charged (include whether state or federal law); (5) Criminal case number; (6) Outcome of suspect's case; (7) If forfeiture was not processed under state law, the reason for the federal transfer: adoption or joint task force; (8) Forfeiture case number; (9) Date of forfeiture decision; (10) Whether there was a forfeiture settlement agreement; (11) Date and outcome of property disposition: returned to owner, partially returned to owner, sold, destroyed, or retained by law enforcement; qand (12) Value of the property forfeited based on the value realized, if sold, or a reasonable good faith estimate of the value, if possible.” This would keep law enforcement accountable by ensuring the public knows what is happening with these cases. (+1)

This bill also states the “mere presence or possession of United States currency, without other indicia of criminal activity, is insufficient probable cause for seizure” (Page 2, Lines 47-48). This holds the law enforcement accountable to prove the currency was involved in and not incidentally related to a committed crime. The same would apply to all easily liquidated  assets, such as bonds, stocks, or securities. They would have to be (1) “found in close proximity” and (2) “been used or intended for use in connection with” the illegal activity, not one or the other.  (+1)

Does it directly or indirectly create or increase any taxes, fees, or other assessments? Conversely, does it eliminate or reduce any taxes, fees, or other assessments? 

Currently, if something seized by law enforcement was owned in part or whole by someone unrelated to the relevant crime, they have the right to have the property returned. The court, however, may charge the individual with whatever costs were incurred by the law enforcement agency making the seizure. For example, the court could charge a car dealership the costs to impound, tow and store a vehicle leased to someone who uses it in a crime in order to have the vehicle returned. This bill rescinds the court’s authority to assess these fees. (+1)

Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for non- violent crimes? Conversely, does it eliminate or decrease penalties for victimles scrimes or non-restorative penalties for non-violent crimes? 

This bill would also reduce the number of crimes for which assets can be seized. Subsection 372744(a)(4) “All conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, delivery, receipt, possession or concealment for the purpose of distribution or receipt of” illegal substances would still be subject to forfeiture. This bill would substitute manufacturing for “possession or concealment, for the purpose of distribution or receipt.” Agencies might argue over whether substances were intended for distribution. Evidence of manufacturing is not as easily misinterpreted. Surely, fewer individuals incorrectly identified engaging in distribution would lose their assets. (+1)

This bill allows individuals who need their property returned - such as a taxi driver who has lost his cab - to petition to the court, with stipulations. Property may not be used for any criminal activity. Petitioners must leave security with the agency. The property may not have evidentiary value. This language would buffer individuals from actions that could cost them their employment or in other ways significantly hurt the citizen. (+1)

Update: This bill was updated 3/17 to reflect the amendments from 3/16.

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