CONCORD, N.H. (March 12, 2020) – Yesterday, the New Hampshire House passed a bill that would close a loophole allowing state and local police to circumvent more stringent state asset forfeiture laws by passing cases off to the feds.

A coalition on three Republicans prefiled House Bill 1192 (HB1192) on Dec. 2. The legislation would prohibit any state, county, or municipal law enforcement agency or prosecuting authority from entering into an agreement to transfer seized property to a federal agency directly, indirectly, by adoption, or through an intergovernmental joint task force for the purposes of forfeiture litigation unless the seized property includes United States currency in excess of $100,000.

The proposed law would also require any New Hampshire law enforcement agency participating in a joint task force with federal agencies to transfer responsibility for the seized property to a state prosecutor for forfeiture under state law unless the seized property includes over $100,000 in currency.

On March 4, the House Judiciary Committee approved HB1192 with an “ought to pass” recommendation by a 16-1 vote. Yesterday, the full House concurred.

Passage of HB1192 would prohibit the transfer of the vast majority of asset forfeiture cases. Reporting in some areas has shown that 85 percent of seizures received by law enforcement agencies through the federal equitable sharing program did not meet a $50,000 threshold.

NECESSARY

While some people believe the Supreme Court “ended asset forfeiture,” the opinion in Timbs v. Indiana ended nothing. Without further action, civil asset forfeiture remains. Additionally, as law professor Ilya Somin noted, the Court left an important issue unresolved. What exactly counts as an “excessive” in the civil forfeiture context?

“That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal.”

Going forward, opponents of civil asset forfeiture could wait and see how lower federal courts will address this “over the next few years,” or they can do what a number of states have already taken steps to do, end the practice on a state level, and opt-out of the federal equitable sharing program as well.

FEDERAL LOOPHOLE

Passage of HB1192 is particularly important in light of a policy directive issued in July 2017 by then-Attorney General Jeff Sessions for the Department of Justice (DOJ).

A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. The DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.

Law enforcement agencies can circumvent more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.

Passage of HB1192 would do just that in New Hampshire.

Until recently, California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.

As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.

Why?

We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.

WHAT’S NEXT

HB1192 will now move to the Senate, where it will first need to pass out of committee before the full Senate can consider it.