The Senate took up and unanimously approved changes to the state’s civil forfeiture provisions Friday. The proposal raises the threshold for law enforcement to seize someone’s assets.
For Sen. Jeff Brandes (R-St. Petersburg) the problems with civil asset forfeiture are pretty obvious.
“Under current law government can seize assets without actually making an arrest of a person, and I think people are just generally shocked by that fact,” he says. “How can the government take something from a Floridian—from a citizen—without charging them with a crime?”
The so-called War on Drugs provides the pretext for many asset seizures, but the legal justifications require a bit of fancy footwork. Rather than arresting a person, the law enforcement agency arrests the person’s property. This gives the agency two advantages. First, it undermines criminal activity by taking away the proceeds of breaking the law—things like money, jewelry, and cars. Second, because the seized asset is property, the case plays out in civil court where there’s no guarantee of counsel.
“This is a tool that was designed to go after drug lords,” Brandes explains, “and what happens when the airplane comes with cocaine—full of cocaine comes and lands in a swamp, right?”
But the provisions have come under fire in recent years because they’ve been used for much smaller seizures. And it’s not always clear how much agencies are seizing or where the funds are going.
“One of the things that the OPPAGA report—our office of analytics for the Legislature—determined was that there was no transparency,” Brandes says. “Nobody, most of the law enforcement agencies that they reviewed didn’t know where the money was going, couldn’t clearly show how it was spent, there was no standardization, some were not even sure who had to sign off on final forfeiture actions. So it was really a glaring error on just keeping the books on civil forfeiture.”
This is the second year Brandes is working on changes and he’s been pushing a simple formula: no seizure without an arrest and no forfeiture without a criminal conviction.
Law enforcement officials say this would gut an important tool, and they’ve pushed back on criticisms. But now it appears they’ve found some common ground.
“You know there’s an adage that you don’t need to be sick to get better,” Pinellas County Sheriff Bob Gualtieri says.
He chairs the Florida Sheriff Association’s legislative committee. Under the compromise measure seizures will, for the most part, require an arrest. But rather than requiring a criminal conviction to take ownership of seized property the case will stay in civil court, and the agency will have to meet a higher burden of proof—the same one required in criminal cases.
“Under the new law it raises the bar just up a little bit more,” Gualteiri says, “and instead of proving by clear and convincing evidence, we have to prove beyond a reasonable doubt that this is proceeds of crime or something used in committing crime.”
“So I don’t think it’s any big deal,” he says, “and I think that as long as we do what we’re supposed to do and make good cases we can meet that burden and there’s no issue.”
Brandes’ measure increases the amount of forfeiture funds earmarked for charity from fifteen to twenty five percent. It also incorporates transparency provisions from a measure offered by Sen. Aaron Bean (R-Fernandina Beach). Those portions require written procedures, annual reporting, and the approval of the agency head before a forfeiture case begins.