We trust the police to protect us and our property from criminals. But what happens when police departments fail in that regard? Or when they actually end up doing more harm than good? With modern civil forfeiture laws, that’s exactly what’s happening. Take this into consideration: Police departments are now disregarding property rights to such a degree that cops are legally stealing, via civil forfeiture, more than criminals.
A look at the numbers confirms it. In 2014, for example, police departments took in $4.3 billion in civil forfeiture while there was an estimated $3.9 billion lost to burglary. That includes houses, vehicles, cash, and other various items.
It’s an interesting dynamic — and a troubling one. According to the FBI, property crime is decreasing. Using 2014 data, there were 1.73 million reported burglaries, a drop of 10.5% from the preceding year. But civil forfeiture is on the rise. This has property rights advocates justifiably concerned and points to a troubling new trend in our police departments.
Of course, not all police officers or departments are engaging in criminal theft. But it is happening. And over the past 10 years, the practice has become much more common.
For our list, we’re using the rankings and grades from a report issued by the Institute for Justice. The report grades state and federal forfeiture laws, taking a look at the incentives from state to state for “policing for profit” models.
“Using these three elements — the financial incentive for law enforcement to seize, the government’s standard of proof to forfeit, and who bears the burden in innocent owner claims — this report grades each state on the extent to which its civil forfeiture laws protect property rights or encourage policing for profit,” the report said. “High grades denote laws that contain strong property rights protections and a smaller (or no) financial incentive to seize, while low grades indicate laws that encourage seizures of property by making civil forfeiture both easy and rewarding for law enforcement.”
If you care about property rights and civil forfeiture law, these are the 15 states with the friendliest laws.
Vermont’s a fairly liberal place and a state that lacks any extremely large population centers. It might be the liberal attitude toward law enforcement, but Vermont earned a C grade from the Institute for Justice. In Vermont, 46% of the proceeds from forfeiture are allowed to “flow to law enforcement,” per the Institute for Justice, and the burden of proof for police officers is among the toughest in the nation.
Nebraska is a rural, conservative state. Although that usually coincides with tougher laws and higher regard for law enforcement, it can also mean there’s a heavy libertarian lean among residents. That seems to be the case in Nebraska, which received a C grade in the report. Law enforcement can swallow up to 50% of the proceeds from civil forfeitures in the state.
13. New York
In the state of New York, police departments and other law enforcement agencies can keep 60% of the materials they confiscate. On top of that, agents need only “clear and convincing” evidence as a standard of proof to force someone into forfeiting property. The burden of proof is, however, on the government, giving residents some support. The Institute for Justice gives New York a grade of C.
Connecticut, like the preceding states, earned a grade of C from the Institute for Justice. Like New York, it’s on the government to prove the property needed to be seized. And also like New York, law enforcement agents need “clear and convincing” evidence to take someone’s property. But agencies also get to keep a higher share of seized property — almost 70% of the value.
In Colorado, police departments are legally able to keep 50% of the value of materials seized via civil forfeiture. In terms of standard of proof, “clear and convincing” evidence is needed to take anything, and the government owns the burden of proof on any seizures. For these reasons, Colorado earns the same grade as all of our preceding states up to this point: C.
The state of Oregon, though thoroughly blue on an electoral map, has a real libertarian streak to it. Like many other Western states, there is a good percentage of the population that abhors government interfering in their lives. This has led to dramatic confrontations with law enforcement agencies, such as the recent occupation of a federal wildlife refuge. But that’s another story entirely. In property rights, Oregon earns a C+.
Bordering Oregon to the south, California lands more or less right at Oregon’s level in terms of property rights. The Institute for Justice grades California a C+ state, with law enforcement needing evidence that is “beyond a reasonable doubt/clear and convincing” in order to seize property. Police are legally allowed to absorb 66.25% of the value of any seized property.
Good news: We’re into the B’s. First up is Wisconsin. Wisconsin is one of a handful of states in which law enforcement agencies aren’t allowed to keep any of the property they seize. That means there’s no financial incentive for police departments. The standards of proof needed to take property are fairly lax, however, with only the “preponderance of the evidence” needed.
Maryland is another state where the standards of proof for civil forfeiture are lax. Like Wisconsin, only a “preponderance of the evidence” is needed for property to be seized. But also like Wisconsin, there’s no financial incentive for police to take personal property. Law enforcement can legally take none of the proceeds. That earns Maryland a B.
When you think Maine, you probably think lobsters — or Stephen King — not sticky-fingered law enforcement agents. And there’s a good reason for that. The protections for property rights are pretty solid in Maine, earning the state a B+ grade in the Institute for Justice’s report. Maine is also among the handful of states in which the police can’t keep any of the property that they seize.
Evidently, giving no financial incentive for law enforcement to engage in civil forfeiture is an easy way to earn a high grade from the Institute for Justice. Such is the case with Indiana — a state which earned a B in the report. Indiana’s laws are a little looser when it comes to the other factors, such as innocent owner burdens and standards of proof. But the financial incentive makes all the difference.
Missouri has been a hotbed of activity between law enforcement and the general public as of late. With the Ferguson riots and subsequent birth of the Black Lives Matter movement, it wouldn’t be surprising to see Missouri earn a failing grade on the Institute for Justice’s report. But it actually did very well — likely because there is no financial incentive for police departments to seize property. Missouri earned a B+.
3. North Carolina
As you might have guessed, North Carolina has laws prohibiting the value of seized assets from flowing to law enforcement agencies. Because of this, the incentive to violate property riots through civil forfeitures is neutralized. Police in North Carolina also need evidence “beyond a reasonable doubt” to take property, the highest level of protection included in the report. North Carolina also earned a B+.
2. Washington, D.C.
Police officers operating in the literal shadow of the federal government need to be on point. And it’s tough to justify flagrant disregard for property rights within spitting distance of the Constitution. Tough protections for property rights make Washington, D.C., one of the best places in America for protections against civil forfeiture. The report gives D.C. a B+.
1. New Mexico
If you want to avoid civil forfeitures at all cost — or just highly value property rights — New Mexico is the place to go. New Mexico earned the Institute for Justice’s highest grade, an A-, outdoing all other states in the country. The chief reason? “In 2015, New Mexico abolished civil forfeiture. It now requires a criminal conviction with proof beyond a reasonable doubt for all forfeitures; after securing a conviction, the government must prove in the same criminal proceeding that seized property is connected to the crime by ‘clear and convincing evidence,'” the report said.
Although the state has banned the practice, it appears police are circumventing the law. Once the legal dust clears, we’ll have to see what eventually comes of the ban.