- Associated Press - Wednesday, April 13, 2016

LINCOLN, Neb. (AP) - Nebraska lawmakers overwhelmingly voted Wednesday to eliminate the state’s civil forfeiture system amid outrage it creates a monetary incentive for law enforcement to use a controversial federal process to seize property before a conviction.

Lawmakers voted 38-8 to ban civil forfeiture and replace it with a system requiring a criminal conviction before law enforcement could seize property. The measure by Sen. Tommy Garrett of Bellevue would also limit use of a federal program to seize cash or property.

Civil forfeiture allows police to confiscate money or property before someone is convicted, based on suspicion it was used to violate a law. Garrett said individuals who have been deemed innocent then must hire a lawyer to reclaim the money or property and called the current system an attack on due process.

“When I first saw this, I had one word that rang in my mind and it was ‘scandal,’” Garrett said. “How could this possibly be happening in the United States of America? Whatever happened to due process? Whatever happened to innocent until proven guilty? Why aren’t we respecting the law?”

In Nebraska, law enforcement has two options if they want to take money or property: the state civil forfeiture process or the federal process.

The state process is more complicated. It requires authorities to file a civil action and prove beyond a reasonable doubt the money or property was used to violate a law. The proceeds are split evenly between the school fund in the county and a Nebraska-wide law enforcement anti-drug program.

Garrett said law enforcement more frequently uses the federal process, called the Equitable Sharing Program, because it’s easier and has a better payout. The program gives 20 percent of proceeds to the Department of Justice and returns up to 80 percent to the local law enforcement agency.

Between 2000 and 2013, the Institute for Justice, a nonprofit libertarian public interest law firm, found local and state agencies in Nebraska received more than $48.3 million in equitable-sharing proceeds. If the seizures had gone through the state process, Garrett said about $30 million would have gone to Nebraska schools.

Both conservative and liberal lawmakers urged the Legislature to fix what they called an unacceptable motivation for corruption.

“The purpose of all these shenanigans was to cheat the schools out of the money,” said Sen. Ernie Chambers of Omaha. “This money corrupted local law enforcement and they became thieves. The ones whose job it is to obey the constitution found a way to circumvent the constitution.”

Sen. Laura Ebke of Crete said allowing law enforcement to avoid the state law “violates Nebraska’s authority and key concepts of federalism.”

The bill would also require law enforcement to submit annual reports to the state auditor detailing all forfeitures. Law enforcement agencies had spoken out against the original measure, saying they need federal collaboration as a tool for such cases as multistate drug investigations.

But a second-round compromise loosened the reporting requirements and required that cash or property be worth more than $25,000 before it could be seized through the federal process.

If Gov. Pete Ricketts signs the bill, Nebraska would join only New Mexico and the District of Columbia in taking steps to opt out of the Equitable Sharing Program.

“It is the most comprehensive in terms of restoring to state legislatures their rightful authority,” said Lee McGrath, the Institute of Justice’s legislative counsel. “But most importantly, it protects the prerogative of the Legislature by limiting the outsourcing of forfeitures to federal government.”

The governor has five days to act on the bill.


The bill is LB1106.

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