Civil Forfeiture and the Trampling of the Constitution

by John Engle

In the wake of the recent tragedy and conflict in Ferguson, Missouri, a great deal of attention has been shone on the apparent militarization of America’s police. People point to increased use of SWAT and police forces’ access and use of heavy military hardware as indicators of a serious problem in the way law enforcement is conducted in our country.

Even in Hawaii, the police have been acquiring surplus military hardware. For example, the Honolulu Police Department now owns a BearCat, a vicious-looking armored personnel carrier. According to HPD, it has the BearCat to respond to attacks of a “chemical, biological, radiological, nuclear and explosive” nature.

It is easy to lampoon these acquisitions as the product of paranoia or a growing attitude in the police in favor of militarization. Yet there is a more pressing concern in Hawaii, one that could have far-reaching consequences for the future of the state.

A somewhat inconspicuous bill even wound its way through the state legislature on a subject few people know much about, but which included major ramifications for the rights of Hawaii’s citizens. The bill dealt with the expansion of civil forfeiture. Civil forfeiture may seem like a rather innocuous-sounding term, but it conceals a practice that is exceptionally corrosive to the proper administration of justice in a free society.

Essentially, civil forfeiture is a process by which police may seize assets they suspect to be used for illegal purposes. This can range from anything from cars, to houses, to cash. This can all be done without any criminal charge being levied against an owner, because the “charge” is being made against the property itself. In fact, according to a Washington Post report, 81 percent of assets seized across the country belonged to people who never faced prosecution or formal charge of any kind.

What makes civil forfeiture so frightening is the absurdly low burden of evidence police need to provide. In fact, police can seize assets merely on suspicion. Once seized, owners can only get their property back through litigation, effectively reversing the burden of proof. The cost of fighting these seizures has left thousands of innocent Americans bereft of their rightful property.

Meanwhile, police forces across the country have been enjoying a spending bonanza from these ill-gotten gains, since they get to keep the lion’s share of all property seized. On the face of it, such a perverse incentive on the part of police to divest citizens of their property ought to raise eyebrows.

Hawaii already has some laws allowing civil forfeiture. Police in the past six years have seized more than $4.5 million in cash and other assets, and HPD has kept more than $2 million of it.

Civil forfeiture is a perfect example of how supposed gaps in constitutional protections can be used to circumscribe or circumvent enumerated rights. It relies on the assumption that people’s property rights are not sacrosanct and can be forfeited without due process. That premise makes a mockery of both the protection of private property, a bedrock of our republican system, and the presumption of innocence.

A civil forfeiture bill has even been considered in the Hawaii legislature. SB 1342 would have further expand the ability of police to abuse the power of property seizure. Though that bill did not progress past the 2013 session, there is no reason to believe that this will be the last attempt to expand government power. The citizens of this state have suffered enough at the hands of unaccountable government. It is imperative that we fight any such effort to erode our liberties.

John Engle is the president of Almington Capital Inc. and a policy analyst for the Grassroot Institute of Hawaii.

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