U.S. Congressman Timothy Walberg (R-MI-7) has introduced H.R. 5212, the Civil Asset Forfeiture Reform Act of 2014, legislation seeking to improve personal property rights by reforming federal asset forfeiture laws. While not as far-reaching as Senator Paul's FAIR Act, in some respects (Sen. Paul's bill would do more to end the incentives driving the abuse of civil forfeiture laws), the bill does feature a number of laudable reforms.



Some quick thoughts on what the bill would do and where it might be improved.



1.) It would require that the Government inform potential claimants, with its forfeiture notice, that the claimant can petition the court for a free lawyer or discounted legal services to defend against a federal civil forfeiture action. The instances where the court would appoint such a lawyer are limited (mostly involving real property where the forfeiture victim is using the real property as their primary residence or where the Government has concurrent criminal and civil prosecutions). Nonetheless, there are instances where the court could appoint a lawyer in response to a petition, yet most claimants aren't aware of the option (or become aware of the option when it is too late). Congressman Walberg's legislation would be an improvement. Better would be if the Government were required to inform the potential claimant, as well, that they can be reimbursed for all of their legal expenses if they substantially prevail in an adjudicated forfeiture case. For many property seizure victims, absent that knowledge, it seems absurd to spend thousands of dollars fighting a forfeiture, if the expenses would exceed the value of the seized property. Better still would be requiring the Government to provide an attorney to the indigent in federal forfeiture actions. Forfeitures are complex, quasi-criminal actions. Ideally, no one would have to face a federal forfeiture action without a competent forfeiture attorney. At a minimum, though, everyone should be fully informed of their options.



2.) Like the FAIR Act, Congressman Walberg's bill would raise the Government's burden, for civil forfeitures, to that of a clear and convincing evidence standard. The current standard is generally a preponderance of the evidence standard. It's debatable how much of a difference a clear and convincing evidence would make in most forfeiture cases. Raising the standard is a good thing, though, regardless. If nothing else, it would demonstrate to the courts that Congress was unsatisfied with the standards that they are using to resolve forfeiture actions and it would free judges to rule in favor of claimants when the judges are suspicious of the historical application of forfeiture laws.



3.) Congressman Walberg's bill seeks to improve the innocent owner defense by altering who has the burden when the innocent owner defense is affirmatively raised and altering some of the language in the innocent owner defense. Under current law, the claimant has the burden of proving that they are an innocent owner by a preponderance of the evidence. If Rep. Walberg's bill were passed, in its current incarnation, the Government would have the burden of proving that the claimant knew or reasonably should have known that the property was involved in the illegal conduct giving rise to the forfeiture. However, the bill also appears to make it too easy for the Government to meet that burden.



4.) Rep. Walberg's bill would clarify how courts should evaluate arguments that a forfeiture is disproportional to the offence giving rise to the forfeiture by inserting that "the court shall consider such factors as the seriousness of the offense, the extent of the nexus of the property to the offense, the range of sentences available for the offense giving rise to forfeiture, the fair market value of the property, and the hardship to the property owner and dependents." Currently, several courts only evaluate whether the forfeiture, if chiefly punitive, would be in excess of the criminal penalty range prescribed by Congress--which is absurd considering the lower standard required to perfect a forfeiture and the varying situations of claimants. Moreover, proportionality analysis has been a mess since lower courts started interpreting Austin, Bajakajian, and then the first Civil Asset Forfeiture Reform Act's proportionality language. If adopted, this would be a significant improvement over current law.



5.) Rep. Walberg's bill would increase the reporting requirements for a forfeiture.











6.) Rep. Walberg's bill would require the office of the Attorney General to assure that any equitable sharing between the Department of Justice and local or State law enforcement agencies was not initiated for the purpose of circumventing any State law that prohibits civil forfeiture or limits use or disposition of property obtained via civil forfeiture by State or local agencies. That would be a massive improvement, if the practice was followed by the DOJ. Better, of course, would be to simply end equitable sharing agreements. Barring that, Rep. Walberg's bill should clarify that both claimants and the express beneficiaries of state forfeiture funds would have standing to challenge any circumventions of state laws governing forfeitures that particularly harmed them. Under current law, it is difficult for claimants to invoke a court's power to prevent local law enforcement from evading a state's restrictions governing the availability of forfeiture. It's also difficult for schools to successfully sue for the distribution of forfeiture funds, despite state laws directing all forfeiture proceeds to education funds. The result is particularly absurd in states like North Carolina where the state constitution directs the proceeds of all forfeitures to education , forfeiture funds are routed to the police departments through equitable sharing agreements, some schools are facing dire budget cuts, and the schools cannot gain standing to force the police departments to quit using the federal equitable sharing program to evade North Carolina's constitutional directive that the proceeds of forfeitures go to schools.

and 7.) Unlike Senator Paul's FAIR Act, the bill would still allow for most of the incentives driving asset forfeiture abuse by leaving in place the DOJ's Asset Forfeiture fund instead of directing proceeds to the Treasury, as the FAIR Act would do. That's unfortunate but may be more of a statement on what Representative Walberg thinks can get passed than what Mr. Walberg thinks would be a good idea. In any case, Representative Walberg deserves plaudits for introducing substantial reforms, particularly regarding proportionality analysis and the use of equitable sharing agreements to circumvent state laws governing the availability of forfeiture and distribution of its proceeds.



7.) Unlike Senator Paul's FAIR Act, the bill would still allow for most of the incentives driving asset forfeiture abuse by leaving in place the DOJ's Asset Forfeiture fund instead of directing proceeds to the Treasury, as the FAIR Act would do. That's unfortunate but may be more of a statement on what Representative Walberg thinks can get passed than what Mr. Walberg thinks would be a good idea. In any case, Representative Walberg deserves plaudits for introducing substantial reforms, particularly regarding proportionality analysis and the use of equitable sharing agreements to circumvent state laws governing the availability of forfeiture and distribution of its proceeds.