by Douglas Ankney
Republican Governor Doug Burgum of North Dakota recently signed House Bill 1286, “which seriously curtails law enforcement agencies’ ability to arrest somebody, take his or her property, and attempt to keep what they seized for themselves even when they cannot prove an underlying crime,” according to reason.com.
Prior to the law, North Dakota was notorious for permitting police to seize and keep citizens’ property without ever convicting anyone of a crime. The rules were so bad that North Dakota was one of the only two states to receive an “F” grade in the “Policing-for-Profit” analysis conducted by the Institute for Justice. (Massachusetts also received an “F.”)
Civil asset forfeiture permits police to seize any cash or property, which they have “probable cause” to believe was used in the furtherance of crime. Police keep the seized property for themselves if they can prove by a “preponderance of evidence” it is related to criminal activity. And of course, in a civil proceeding, there is no right to an attorney, so the property owner must hire an attorney to be represented at the asset forfeiture hearing.
The new law requires police to obtain a criminal conviction before attempting to seize assets.
There are exceptions, such as abandoned property, or if the defendant is dead, deported, or missing. Also, in light of a recent U.S. Supreme Court decision holding that the Excessive Fines Clause in the constitution’s Eighth Amendment is applicable to the states (See: CLN, April 2019, Pages 22-23), the new law requires courts to evaluate the value of property seized in comparison to the level of offense committed.
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