Bill advanced that would restrict property seizure

Lawmakers gave first-round approval to a bill April 4 that would place restrictions on the state’s civil forfeiture law, which allows law enforcement to seize property associated with suspected criminal activity without necessarily filing criminal charges.

LB1106, introduced by Bellevue Sen. Tommy Garrett, would allow law enforcement agencies to dispense seized currency and property only after securing a criminal conviction. Persons not charged with a crime or later acquitted of a crime would be able to recoup their property under the bill.

Garrett said the current practice of treating forfeiture as a separate criminal proceeding was determined to constitute double jeopardy.

“Civil forfeiture can be a valuable tool for law enforcement but should only be used when crimes are committed,” he said. “[LB1106] would ensure the burden of proof lies with law enforcement and not with citizens.”

A Judiciary Committee amendment, adopted 27-9, incorporated into the bill provisions of Garrett’s LB1108 requiring law enforcement agencies to file quarterly reports detailing their seizure of property. Written reports must include the date, type, monetary value and location of each property seizure. If property is seized during a traffic stop, the agency must document the race or ethnicity of the person forfeiting the property and whether they were arrested or issued a citation.

Omaha Sen. Ernie Chambers supported the amended bill. He said current laws create a financial incentive for police to take property from people who may or may not have committed a crime.

“The original [civil forfeiture] laws were designed to take away the fruits of crime,” he said. “What has happened is local law enforcement agencies use this money to purchase things the city or the county should put in their budgets.”

LB1106 as amended also would allow law enforcement agencies to partner with a federal agency to conduct forfeiture litigation only if the amount of the seized property is valued at more than $50,000. The state would be responsible for all cases involving less than $50,000 in seized property.

Lincoln Sen. Patty Pansing Brooks also supported the bill. Currently, the revenue generated by seized property is split evenly between the county in which it is litigated and the state’s public schools, she said. When an agency partners with the federal government, however, 80 percent of the money goes back to the agency and 20 percent stays with the federal government.

“We’re always talking about [finding more money to fund schools] because property taxes are too high,” she said. “We’re eliminating and diverting dollars through this circumvention of the law. It doesn’t make any sense.”

Sen. Colby Coash of Lincoln said the committee amendment was substantially different from the original bill that was supported by key stakeholders. There could be smaller interstate cases of property seizure in which Nebraska would want to partner with the federal government but would be unable to under the amendment, he said.

Thirty days after a criminal charge is filed, a defendant could request a hearing to determine if the seized property was used in the commission of a crime. A person with a legal interest in seized property but who was unaware that the property was used in the commission of a crime also could file a motion for a hearing.

The court would hold a hearing within 30 days and the prosecuting attorney would be required to prove by clear and convincing evidence the amount of property subject to forfeiture used in the commission of a crime.

The bill also would add the manufacture, distribution and possession of illegal drugs and child pornography to the crimes eligible for property seizure and forfeiture.

Senators advanced the bill to select file on a 36-0 vote.

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