Civil Administrative Forfeiture law had been on the books since the ’80s. It allowed law enforcement agencies to seize property with a value of up to $20,000 in the event that there was a violation of the Uniformed Controlled Substance Act. Last year, HB 1034, which would have extended the repealer on the policy died in committee.
This year HB 1104 is attempting to bring the process back from the grave but it’s receiving criticism.
“There’s a lot of misleading information being put out there by people opposing the bill. They’re saying there is no due process and your property can be taken from you without actually committing a crime. That’s not how it works,” said Dept. of Public Safety Commissioner Marshall Fisher.
Fisher said, while individuals don’t have to be convicted of a crime to have assets seized, every one of these seizures has to be linked to a direct violation of the Controlled Substance Act.
“The phrase ‘ordinary people’ has been used by opponents to this bill; To characterize people that are trafficking narcotics or have a nexus to their property and the controlled substance act are not ordinary people,” said Lora Hunter, a General Counsel for Department of Public Safety.
Rep. Mark Baker who authored HB 1104 this year, says the language in this bill is verbatim from HB 812 Section 5, which was passed during the 2017 Legislative Session after a task force was assembled in 2016 to research forfeiture procedure.
HB 812 passed in the House by a vote of 118-3 and in the Senate 51-1.
So why the backlash?
About a week ago the Mississippi Center for Public Policy released an Op-Ed, rejecting the resurrection of the law. They claim that the law encourages a “guilty until proven innocent stance.” They believe that property should not be able to be seized by the state, regardless of value, until a criminal charge and conviction are found. They also believe that the safeguards currently in place on civil forfeitures are not strong enough.
“If you asked most Mississippians whether the state should be able to confiscate cash and property from a person who was never charged with, much less convicted of a crime, the answer would be a resounding ‘no,’ “said MCPP in the article.
“We are talking about assets being taken away from drug dealers,” said Fisher. “Those opposing this bill are making it look law enforcement are targeting ordinary people. That’s not the purpose of the bill.”
Under Administrative Forfeiture, law enforcement is permitted to seize assets only in the event that there is a direct correlation to a violation of the Uniformed Controlled Substance Act.
According to Baker, and legislation, once the property is seized the officer then has 72 hours to file with a local magistrate. At that time the magistrate will decide whether or not that property was seized with probable cause. If they find a cause, they can issue a warrant for the seizure, giving custody of the property to the state, and move forward with the legal process. Meaning, this is not a decision left up to a single officer or agency.
Once the property is seized, a warrant is granted, and it has gone through the forfeiture process a few things can then happen to the property. In the event that the property did not belong to the suspect, it will be returned to its owner. Another possibility, it is evaluated and auctioned off. The proceeds are then divided up into a forfeiture asset fund, twenty percent to MBN and eighty percent to the seizing agency, for forfeitures among state agencies. There are a different set of rules in the event a federal agency is involved.
“Innocent third parties are not affected. For a car being seized, all they have to do is show their registration, proof of ownership like a title or lean and they’ll be able to get it back, period,” said Fisher.
Those dollars obtained through civil forfeitures go to providing law enforcement with vital equipment like bulletproof vests, body cameras, and vehicles.
MCPP said when reviewing the database created to keep a record of seizures, it included forty-seven seizures in which the average value was just under $3,000. They said, “the data indicates that, far from being used exclusively to take large quantities of drugs and cash from drug mules and cartel affiliates, trivial personal valuables are often taken under administrative forfeiture.” Those items included things like apple watches and individual iPhones.
However, attorneys for DPS don’t believe the database was even given a chance to do its job. Hunter said the database was only up and running for less than two months (around 6 weeks) when the repealer occurred and its use was ended.
“That that wasn’t an adequate amount of time for it to what it was created to do,” Hunter said.
In the event the bill doesn’t pass, Fisher said it will actually cost law enforcement money. If agencies are not permitted to seize under Administrative Seizure, as a civil forfeiture, then items that are taken after an individual is arrested will have to be processed as a criminal forfeiture and it’s not free.
“For instance, if a handgun is seized when someone is arrested and the guy is a convicted felon, they have to forfeit that weapon, we can’t give it back. Well, it has to go through the forfeiture process and some handguns aren’t worth $200,” said Fisher. “We can still do it through the criminal forfeiture process but that’s going to cost us money.”
Going through a criminal forfeiture process costs an initial fee of $161 after that are publication fees and then court costs in order to get the property awarded to the state.
DPS is hoping that the legislature will reinstate the law in order to give the database a chance to work before taking away a tool that has been beneficial for law enforcement.
The bill has been referred to the House Judiciary A committee and is expected to see action before the week is up.