Florida Bills Would Curb “Policing for Profit” via Asset Forfeiture, But Federal Loophole Remains

TALLAHASSEE, Fla. (Dec. 23, 2015) – Bills filed in the Florida legislature for the 2016 legislative session would reform the state’s asset forfeiture laws, making it more difficult for police to seize property. But a loophole in the legislation would allow law enforcement to work with the feds to skirt the more stringent state law.

Sen. Jeffrey Brandes (R) filed Senate Bill 1044 (SB1044) on Dec. 3. Rep. Matthew Caldwell (R) filed an identical companion bill (HB883) the same day. The legislation would require criminal prosecution and conviction of the property owner before finalizing asset forfeiture. As it stands now, Florida law enforcement officers can seize assets they suspect were involved in criminal activity without even making an arrest.

The Institute for Justice gave Florida’s asset forfeiture laws a D grade. According to the organization, the current laws create incentives for law enforcement to “police for profit.”

“Law enforcement in Florida still receives 85 percent of the funds generated from civil forfeiture.  As a result, Florida law enforcement makes substantial use of civil forfeiture at the state level, just as it does through equitable sharing.  In a mere three-year period (2001-2003), the state took in more than $100 million in forfeiture, and Florida law enforcement received anywhere from $16 million to $48 million per year in the 2000s through equitable sharing.”

The proposed legislation does not address the “policing for profit” incentives under the current law, but would make it much more difficult for police to ultimately seize assets.

FEDERAL LOOPHOLE

As drafted, SB1044 and HB883 leave a gaping loophole that would virtually render the reforms totally ineffective in practice. The legislation needs to include amendment language to stop state and local law enforcement from turning cases over to the federal government, thereby circumventing any restrictions placed on asset forfeiture at the state level.

This very scenario plays out frequently in states with strong asset forfeiture laws like California. Police simply avoid such restrictions by turning cases involving seized assets over to the feds. In return, state and local agencies get up to 80 percent of the proceeds from forfeited assets back through the Federal “Equitable Sharing Program.”

Simple language can close this loophole.

“A law enforcement agency or prosecuting authority may not directly or indirectly transfer seized property to any federal law enforcement authority or other federal agency unless the value of the seized property exceeds $50,000, excluding the potential value of the sale of contraband.”

As previously reported by the Tenth Amendment Center, the federal government has inserted itself into the California’s asset forfeiture debate. 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 deplorable “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.

STATES PUSH BACK

States are rapidly taking notice and passing reforms to halt this abusive practice. New Mexico enacted a law this year prohibiting the confiscation of property from suspects of a crime until after they are convicted. Montana passed a significant but less comprehensive reform plan tackling asset forfeiture this year as well.

NEXT

SB1044 and HB883 are awaiting committee assignments.