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Published on Friday, February 2, 2018

Bill changes how law enforcement may seize property in civil asset forfeiture cases

When authorized by statute, a law enforcement agency may take possession of property for the purpose of forfeiting a person's right to own or possess that property. Generally, civil asset forfeiture is permitted when the property itself is illegal, was used to facilitate a crime, is an actual proceed of a crime, or was purchased from proceeds traceable to criminal activity. Civil asset forfeiture is permitted under a variety of statutes, including in the case of drug crimes, crimes committed with a firearm, and human sex trafficking and sexual exploitation crimes.

HB 2718 creates a new chapter with respect to civil asset forfeiture proceedings. The bill makes changes to a variety of civil asset forfeiture statutes, including:

  • Explicitly providing that the burden of proof is on the seizing agency;
  • Allowing prevailing claimants to recover attorneys' fees;
  • 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.

A substitute version passed out of the policy committee and is scheduled for a hearing in House Appropriations Committee on Saturday, February 3. The cutoff date for that committee is Tuesday, February 6.

The substitute retains the underlying bill with the following changes and additions:

  • The felony forfeiture statute is included in the substitute and is amended in a manner consistent with the amendments to the other forfeiture statutes, making the entirety of the new chapter governing forfeiture proceedings applicable to seizures under this statute as well.
  • The requirement that the State Auditor annually perform a financial audit under generally accepted government auditing standards and submit the report to the State Treasurer is stricken.
  • The provisions regarding reporting by seizing agencies are amended.
  • The provision that would allow prevailing claimants to recover damages and expenses for loss of use of the property is stricken.

AWC has concerns with this bill and is monitoring it. Please contact Logan Bahr with any questions or concerns.