Police, prosecutors oppose proposed Nevada bill changing asset forfeiture for low-level drug crimes

Between July 2019 and June 2020, Nevada police reported seizing more than $4 million worth of personal property, ultimately holding on to more than $3 million worth of cash, vehicles and jewelry involved in criminal activity.

Law enforcement agencies do this through a process called civil asset forfeiture, in which police take possession of ill-gotten money or property that may have been involved in a crime. The idea is to thwart criminal organizations and help fund police activity, but a broad range of interest groups have expressed concern in past years that the system easily leads to abuse and the inappropriate taking of property from people not directly involved with criminal activity.

The complex and emotional subject returned to the Legislature on Monday during a hearing on AB425, a bill heard in the Assembly Judiciary Committee that aims to add additional protections and limits on police use of property seizure and forfeiture as it relates to low-level drug crimes.

The bill was presented by criminal defense attorney Lisa Rasmussen, who characterized the bill as a modest, targeted tweak to the existing set of rules on asset forfeiture for low-level drug crimes.

“What this does is just simplifies the procedure for these small level seizures and forfeitures, and it puts it all in one place where it's much easier and it saves everybody money,” she said. “It saves the state money, it saves law enforcement money, and more money at the end of the day goes to the general fund than is currently happening on the small level seizures and forfeitures.”

But the hearing on the bill nonetheless drew familiar battle lines: criminal justice reform advocates (ranging from public defenders to the ACLU of Nevada to libertarian groups) in favor, and police and prosecutors opposed.

“The process works very well as it is,” Las Vegas Metropolitan Police Department attorney Matthew Christian said. “It's already a very streamlined process. And despite some of the testimony that the members of the committee have heard today, it really isn't complex.”

Essentially, there are two parts to asset forfeiture — seizure (police taking of property believed to be involved with crime) and forfeiture (police or courts deciding to keep the property associated with crime).

The bill changes provisions related to the second half of that equation (forfeiture), and moves any forfeiture of property worth less than $5,000 related to the transportation, sale or trafficking of illegal drugs to a criminal, rather than separate civil, court action. It also prohibits police from seizing any cash amount less than $200, or a vehicle worth less than $2,000, from any forfeiture action with certain exemptions.

Bill advocates said the move from a bifurcated civil and criminal case system to keep everything on the criminal side as it relates to property would simplify and streamline small-dollar property forfeiture issues.

Lee McGrath, an attorney with the libertarian-leaning Institute for Justice who also presented the bill, used the example of a person driving through Nevada and arrested for drug trafficking. People would be processed through the criminal system, but their cars and any loose cash would go through a civil court system.

McGrath said that presented an issue because the median amount of cash seized by Nevada police was only $908, not the imagined “hundreds of thousands of dollars wrapped in plastic and hidden in panels of 18-wheelers.”

The small median amount of property seized combined with the bifurcated process of having criminal charges against a person (while property forfeiture is dealt with in civil court) meant that most people with assets seized ended up just walking away, as the cost to litigate for the return of property often exceeds the value.

“So even if you were as innocent as Mother Teresa, if you only had $908 seized from you, it would be irrational to hire a private attorney like Ms. Rasmussen to help you try to get back your $908,” he said.

The last major revision of the state’s laws on asset forfeiture came in 2015, when a group of Republican lawmakers led by former Sen. Don Gustavson passed SB138, which required police agencies to annually report information on seizures and forfeitures to the attorney general’s office, and also required setting limits on forfeiture, including staying any forfeiture actions until the conclusion of a pending criminal trial, requiring property be returned if charges are denied or dismissed and forcing police to first file a request for forfeiture with a district court.

But since 2015, other attempts to modify forfeiture law have largely fallen flat. One effort, also by Gustavson, to put additional limits on property forfeiture failed to advance out of committee in 2017.

In 2019, state lawmakers debated another measure that would clamp down on civil asset forfeiture procedures (requiring a conviction for forfeiture proceedings, and awarding proceedings to a state education budget account instead of a law enforcement agency). The bill, AB420, passed the Assembly on a 36-4 vote but failed to advance out of the Senate.

The Institute for Justice gave Nevada a “D-” grade on its civil forfeiture laws, saying that the state had “weak protections for innocent owners” and gave police a “strong financial incentive to seize.”

Supporters of the bill said it would help equalize access to justice for poorer people, who often don’t have the resources or time to dispute small-dollar forfeiture cases.

“Wealthy people accused of crimes are able to hire counsel to litigate forfeiture, which makes sure that it's only done when fair and necessary,” Jim Hoffman, an attorney representing criminal defense advocacy group Nevada Attorneys for Criminal Justice said. “But poor people accused of crimes can't afford to hire counsel, depriving them of one of the most basic protections that our system has.”

Rasmussen said she had attempted to work with police agencies including the Las Vegas Metropolitan Police Department in the past, but couldn’t get them to agree on any changes to the current forfeiture structure.

“The current forfeiture scheme is broken, because it doesn't address all of these small amounts that are seized and subsequently forfeited where someone doesn't have the resource to appear in a civil case and to litigate whether or not they should have their money back,” she said.

But John Jones, a lobbyist for the Clark County district attorney’s office, said that he was only contacted by Rasmussen last Thursday regarding the bill, and he outlined numerous issues with the legislation that he said gave criminals too many opportunities to continue holding on to ill-gotten property gains, ensuring that “crime does pay.”

“Now, I highly doubt the proponents of AB425 think crime should pay. I'm not impugning them that way at all,” he said. “But what I am saying is that this bill has some significant issues, and it creates confusing language and duplication of processes. The reason is simple. This bill is trying to place a civil process into criminal law, and the two procedures do not fit well together.”

Jones said the bill’s focus just on narcotic-related offenses would have the unintended consequence of looping the district attorney’s office into civil procedures for forfeiture, which is now typically handled by Las Vegas police. Having a new statutory scheme just for that type of crime would result in “significant confusion and duplications of efforts and may require significant recordkeeping or counting processes,” he said, adding that his office does “not have the manpower or resources to take on this additional responsibility.”

That sentiment was echoed by Metro attorney Christian, who said that most of the issues raised by proponents of the bill were already addressed in current law, which requires a nexus between the property and alleged criminal act, and that creating a new process just for drug-related crimes was not necessary because the system currently in place “ already affords so many protections to the subjects.”

“The burden is already on law enforcement to prove those things,” he said. “So if any evidence is presented to the contrary, then the money is returned.”

Rasmussen said the intent of the bill was to take a targeted, rather than broad approach, to help individuals most likely to have their property seized improperly.

“Nobody disputes that assets or cash shouldn't be forfeited if they have a nexus to the crime,” she said. “None of that has changed. This is a very narrow, targeted, limited approach at reform, so that we can start having people who are the most vulnerable at least have the representation of counsel to litigate this additional single element.”

— This story is used with permission of The Nevada Independent. Go here for updates to this and other stories.