By Lee McGrath
IJ is the national law firm for liberty. We litigate for a living. But there are times when IJ uses other tools—like legislative advocacy—to protect fundamental constitutional rights. Our most iconic legislative achievement occurred after the U.S. Supreme Court’s awful Kelo v. City of New London decision in 2005, when IJ turned to state legislators and channeled public outrage into constructive action to reject the Court’s ruling that eminent domain could be used for private development. Nine years later, 44 states have enacted legislation or passed constitutional amendments that better protect property owners from eminent domain abuse.
But we haven’t stopped there; IJ’s work at state legislatures continues. On May 7, Minnesota increased protections against the latest threat to property rights—civil forfeiture—when Gov. Mark Dayton signed into law significant reforms requiring property owners to first be convicted of a drug crime before their property can be taken by the government.
Civil forfeiture makes it easy for law enforcement to seize and keep property, even if the owner has never been convicted of or even charged with a crime. Cash, vehicles, homes and other property can be seized if police merely suspect they were used in crime. Under Minnesota’s former law, it was then up to the property owner to sue in civil court and show that the property was not linked to the suspected drug crime. More than 95 percent of the time, property owners charged with a drug crime do not file a civil lawsuit to get their property back.
IJ formed a broad coalition that included the ACLU, the Minnesota Association of Criminal Defense Lawyers and others to push for reforms based on a self-evident proposition: No one acquitted in criminal court should lose his property in civil court.
This simple message was so powerful that more than 20 percent of members of Minnesota’s House of Representatives from across the political spectrum sponsored the legislation and, at a critical point when the bill was being held up by a committee chairman friendly to law enforcement, the editorial board of the Minneapolis Star Tribune called for its enactment. Once over that hurdle, legislators in the House and Senate voted for the bill 120-0 and 55-5, respectively.
According to the state’s own reports, Minnesota law enforcement agencies engaged in nearly 7,000 seizures of property in 2012, worth more than $6 million—90 percent of which went to supplement the budget of law enforcement agencies.
Forfeitures involving controlled substances accounted for 47 percent of reported incidents, but the value of property seized averaged only about $1,250 per seizure. The typical seizure in Minnesota was so small that it made little sense for even an innocent person to litigate to get back his property because of the high cost of hiring a lawyer.
Under the new law, the state will have the burden to prove that the seized property is part of the proven crime. By switching the burden of proof to the government, the new law makes it more likely that innocent Minnesotans can get their property back. In that way, the legislation is an important step toward greater protection of property rights and establishes a model for other states to follow.
And we will continue to look for select opportunities across the country to protect constitutional rights and complement our litigation outside the courtroom.
Lee McGrath is IJ’s legislative counsel.