Washington Committee Passes Bill to Reform Asset Forfeiture Laws; First Step to Address Federal Loophole

By Michael Maharrey

Last week, a Washington state House committee passed a bill that would improve the state’s asset forfeiture laws and set the stage to close a loophole that allows state and local police to circumvent more strict state forfeiture laws by passing cases off to the feds.

Rep. Matt Shea (R-Spokane Valley) and Rep. Roger Goodman (D-Kirkland) introduced House Bill 2718 (HB2718) on Jan. 12. The legislation would take several steps to reform Washington’s asset forfeiture laws. While the state could still seize assets without a criminal conviction, HB2718 would increase protection for property owners and place the burden of proof squarely on prosecutors. HB2718 would make several changes to current asset forfeiture law, explicitly providing that the burden of proof is on the seizing agency; allowing prevailing claimants to recover attorneys’ fees, expenses, and damages for loss of use of property; requiring that, when ordered to return property, the seizing agency return it in the same or substantially similar condition as when seized; and making all seizing agencies subject to detailed reporting requirements.

The House Justice Committee approved HB2718 by a 12-1 vote.

The reporting requirements include provisions relating to federal asset forfeiture. This would set the stage to close a loophole that allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. This is particularly important in light of a new policy directive issued last July by Attorney General Jeff Sessions for the Department of Justice (DOJ).

FEDERAL LOOPHOLE

A federal program known as “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.

Including federal forfeitures in the reporting requirements will shed light on equitable sharing and potentially generate the awareness necessary to pressure policymakers into closing the loophole. This could be done by passing legislation prohibiting state and local police from passing cases off to the feds in most situations. We recommend the following language.

  1.  A law enforcement agency or prosecuting authority may not enter into an agreement to transfer or refer seized property to a federal agency directly, indirectly, by adoption, through an intergovernmental joint taskforce or by other means for the purposes of forfeiture litigation and instead must refer the seized property to appropriate local or state prosecuting authorities for forfeiture litigation under this chapter unless the seized property includes U.S. currency in excess of $100,000.
  2. This paragraph preempts laws by township, municipal, county and other governments in the state which regulate civil and criminal forfeiture.

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.

While HB2718 only makes modest reforms and does not directly address equitable sharing, we view it as a solid foundational step.

WHAT’S NEXT

HB2718 now moves to the House Appropriations Committee where it must pass by a majority vote before moving forward in the legislative process.

Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center, where this article first appeared. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE

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2 Comments on "Washington Committee Passes Bill to Reform Asset Forfeiture Laws; First Step to Address Federal Loophole"

  1. Lunarcus Moonbatticus | January 29, 2018 at 10:36 pm | Reply

    Kim Dotcom recently had his ‘seized’ furniture returned to him; it was all moldy, trashed, and a total loss post-seizure. Kim was told that it would be stored in an environmentally-controlled room; it wasn’t!
    Kim is now suing the U.S. Government for the massive monetary loss of his furniture and electronic gear!
    Get out of the states that have this legalized theft of personal and private property!
    Washington State is going to be destroyed anyway by the Cascadia Faultline earthquake and accompanying tsunami, and by Mt. Ranier, plus economic & political turmoil that is right around the corner…!
    & the Southern States are just as bad;
    Bubba the Deputy; “Is that your airboat, Boy?”
    Illegally-Detained ‘Citizen’; “Yes sir, it is…”
    Bubba the Deputy; ‘Not anymore; this here’s now the property of the State of Georgabama with a Commonwealth Shared Asset with Louisiatexas!”
    Illegally-Detained ‘Citizen’; ‘But sir, what you are doing is illegal under the U.S. Constitution!”
    Bubba the Deputy; “You’re under arrest! (BZZZST- sound of taser). Stop resisting!!!”
    Illegally-Arrested ‘Citizen’; STOP!!! I’m not resisting…”
    Bubba the Deputy; “Stop Resisting!!!! (POP) (sound of Deputy’s 9MM Glock)
    Illegally arrested ‘Citizen’…. (dead on the roadside resisting the illegal theft of his property by the state, which needs a severe purge!!!!!!!!!!!!!!!!!!!!

    • Deputies are now known to wait on the interstates into and out of Las Vegas, stopping and seizing winnings from suckers claiming that it must be “drug proceeds”. The money is almost NEVER returned and can take up to 5-years to litigate…if you can find a court to take it.

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