House Passes Bill to Reform Civil Forfeiture Procedures

By Nate Rabner

ANNAPOLIS—A bill that would reform Maryland’s civil forfeiture policies, restricting the state’s ability to keep confiscated property and requiring police to report seizures, passed in the House of Delegates on Tuesday.

Maryland law enforcement agencies have gained millions of dollars of funding in recent years from civil forfeiture, through which police seize money and property allegedly related to illegal drug operations. But the practice has been widely criticized because it applies regardless of whether the property’s owner is convicted of a crime, and it’s on owners to defend their right to the property in court.

HB360, sponsored by House Judiciary Committee Chair Joseph Vallario, D-Prince George’s, would switch the burden of proof to the state, requiring it to prove by a preponderance of the evidence that the property’s owner knew the property was intended or used for a drug crime.

Currently, the owner must actively defend his or her property in a forfeiture case. And because police often transfer forfeited money to the U.S. Department of Justice’s Asset Forfeiture Program, that case might take place in a federal court in Virginia—an ordeal the bill’s proponents said was prohibitively expensive for someone trying to recover a small sum.

“People’s property is getting taken unjustly,” Vallario told delegates in the House chamber. “It’s a horror story.”

State and local law enforcement agencies receive a portion of the value of forfeited assets they transfer to the federal program.

From October 2012 through September 2013, law enforcement agencies in Maryland gave $42.3 million to the Department of Justice’s Assets Forfeiture Fund and received $2.8 million in return, according to the bill’s fiscal note.

State Police in October reported using the federal program for all forfeitures.

“When the police take your money, you don’t try to grab it back from ‘em; you have to go through a process,” said Delegate Curt Anderson, D-Baltimore, who supports the bill. “Right now part of that process is having to go through the federal government, and that makes it almost impossible. Suppose they take $800. ... It’s impossible for somebody who lives in ... Sharpsburg to go down to … Virginia, and try to get their $800 back when they know they should get it back.”

Vallario’s bill would stop state law enforcement agencies from transferring money to the federal forfeiture program except in federal cases. Defendants in state cases could then defend their property in Maryland courts.

Another reform proposed by the bill would rule out the proximity of property to contraband as a justification for seizure. Anderson gave the example of a traffic stop during which police found a marijuana cigarette, presumably intended for the driver’s personal use, and chose to confiscate $3,000 that was also in the vehicle.

Opponents of the bill said the state would struggle to prove property was ill-gotten without using proximity to drugs or paraphernalia as evidence. They fear the stateside burden of proof would allow drug dealers to recover forfeited profits from their operations, which one delegate called a “Fortune 500 Company” in Maryland.

“People that are gaining things illegally through contraband or drug activity should not be allowed to have easier access to recoup their moneys when it was forfeited during seizure of drugs,” said Delegate William Folden, R-Frederick, who voted against the bill in the judiciary committee.

A person seeking to reclaim his or her property should have to show documentation, such as proof of ownership or employment, to prove the property is unrelated to drug operations, said Folden, a Frederick County police officer. He added that law enforcement officials and state’s attorneys are against the bill.

The bill’s reporting provisions would require law enforcement agencies to submit information about property seizures to the Maryland Statistical Analysis Center, a division of the Governor’s Office of Crime Control and Prevention. Data for each seizure would include the associated alleged crime; whether the property was transferred to the federal Asset Forfeiture Program; the venue of the forfeiture case; the funds the agency received from the seizure; and whether the property was ultimately kept or returned.

Anderson said most jurisdictions already keep forfeiture records—Prince George’s County’s are the most thorough, he said—but that a statewide standard is necessary.

“When police take money, that’s public money; there should be a public record,” he said.

Folden also spoke favorably of forfeiture reporting as a practice “that should be happening anyways,” despite his opposal of the bill. But other opponents balked at the reporting requirements’ estimated cost of about $100,000 per year.

The 81-54 vote on the house floor was “almost along party lines,” Anderson said, with Democrats generally supporting the bill and Republicans opposing. Now the legislation will advance to the Senate Judicial Proceedings Committee, chaired by Senator Bobby Zirkin, D-Baltimore County. Senator Jamie Raskin, D-Montgomery, had introduced a companion bill to Vallario’s, SB528, this session.

Anderson said the House bill has “a good chance to pass in the Senate,” though Republicans might ask Gov. Larry Hogan to veto it if it reaches his desk. It would take three-fifths majority votes in the House and Senate—meaning the support of 85 delegates, he said—to override a veto.

“It’s far from over,” Anderson said.

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