Under current law, law enforcement and government agencies can seize private property - including cash, cars and houses - merely on the "suspicion" that it was involved in the commission of a crime, without any criminal charge or conviction required.
“You’re not innocent until you’re proven guilty under civil forfeiture,” Sen. Paul said at a press conference on Capitol Hill Tuesday. “You’re guilty until you’re proven innocent.”
Earlier this month, Attorney General Eric Holder announced new rules that prohibit federal agencies from "adopting" assets not related to public safety that are seized under federal civil asset forfeiture laws.
Paul spoke about legislation he is sponsoring in Congress called the Fifth Amendment Integrity Restoration (FAIR) Act, which would require the federal government to “establish, by clear and convincing evidence, that there was a substantial connection between the property and the offense.”
The bill would also require the government to prove that the owner “knowingly consented or was willfully blind to the use of the property by another in connection with the offense.”
The government would also be required to hold a hearing to demonstrate probable cause within 14 days of forfeiture, rather than holding property indefinitely as is the case now.
Paul was joined at the press conference by other House sponsors of the bill, including Rep. Tim Walberg (R-MI), Rep. Scott Garrett (R-NJ), Rep. Tony Cardenas (D-CA), and Rep. Keith Ellison (D-MN).
Rep. Tom McClintock (R-CA) and Senators King and Mike Lee (R-UT) are also co-sponsors on the legislation, but were not present at Tuesday’s press conference.
Civil asset forfeiture begins when a law enforcement agent seizes property during an encounter with someone and alleges that the property was in some way connected to a crime. However, even if the property owners are not convicted or even charged, they may still have difficulty reclaiming their property.
Citing an incident that took place in his own state, Rep. Walberg told reporters that people like Terry and Sandy Dehko are the type of victims the bill aims to protect.
The Dehkos own a grocery store in Fraser, Michigan, and make frequent cash deposits in their bank account. Federal law requires banks to report all cash transactions above $10,000, and makes it illegal to "structure" deposits in order to avoid the reporting requirement.
In 2010, the IRS reviewed the Dehkos' banking practices. It conducted a money-laundering review of their family-run store in 2012, and afterwards approved their activity. But less than a year later, the IRS obtained a warrant to empty the Dehkos' bank account of nearly $40,000.
The Dehkos were not charged or convicted of any crime, but the IRS refused to return their money for nearly a year.
In the midst of litigation ten months later, the IRS finally filed motions to voluntarily return the money, according to the Institute for Justice (IFJ), which represented the Dehkos in their lawsuit against the government. A federal judge dismissed the case last June.
In 2010, IFR published “Policing for Profit: The Abuse of Civil Asset Forfeiture,” which documented how a legal loophole called "equitable sharing" allows law enforcement agencies to keep the property they seize.
“There is tremendous injustice being done to people,” Rep Ellison said at the press conference. “Our Constitution says that if the government wants to take your stuff, there must be due process.”
Rep. Garrett quoted a Washington Post article that estimates that law enforcement agencies have engaged in more than 60,000 baseless civil asset forfeitures on U.S. highways since 2001. Those incidents all involved individuals who were never accused of a crime. The value of the property seized totaled $2.5 billion.
“It’s about our civil liberties,” Rep. Cardenas added. “It’s about being innocent until you’re proven guilty. Billions have been taken from American citizens without any due process.”
Another provision of the FAIR Act would require the Justice Department to differentiate between criminal forfeitures and civil forfeitures in its annual reporting to Congress. Criminal forfeitures require a conviction; however, civil forfeitures do not.
Similar bills were introduced by Sen. Paul and Rep. Walberg in 2014 as well, but did not reach the floor of either chamber for a vote.
“I will refrain from the urge to comment on why it didn’t make it... last year,” Rep. Walberg said, referring to the former Democrat-controlled Senate. “I think there is an interest in working on civil liberty issues in this Congress.”