You Only Think It’s Your Property

No man’s life, liberty or property is safe while the Legislature is in session.

Judge Gideon Tucker, 1866

It seems things haven’t changed much since Judge Tucker’s made his cynical observation. At least not when it comes to the rapacious appetites of governments. Tucker might say that the passage of time has only resulted in more imaginative ways to circumvent constitutional protections.

The Fifth Amendment to the Constitution states:

No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Yet, in Arizona police and prosecutors can seize your property even when you’ve been found not guilty of committing a crime. Here is a recent example of this process in action.

Arizona is not unique in the avarice of law enforcement, most other states engage in the same practices.  However, according to a paper from the Institute for Justice called Policing for Profit, Arizona has some of the nation’s worst civil forfeiture laws, earning a grade of D-.  The report grades the states based on how well they protect the rights of property owners.   Only 3 three states received a B or better!

The report “chronicles how state and federal laws leave innocent property owners vulnerable to forfeiture abuse and encourage law enforcement to take property to fatten their budgets. The report finds that by giving law enforcement a direct financial stake in forfeitures, most state and federal laws encourage policing for profit, not justice.”

To make matters even worse, there is only limited public accountability and little oversight or reporting on how the proceeds of such seizures are spent by police and prosecutors.

The privileges and immunities clause of the Fourteenth Amendment further supports the guarantees of the Fifth:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

To add insult to injury, the practice of confiscating property is not confined to state governments.  Being extremely adept at justifying assaults on the private sector by claiming a public good, the federal government is especially creative when it comes to property confiscation.

“Federal laws encourage even more civil forfeiture abuse through a loophole called “equitable sharing” that allows law enforcement to circumvent even the limited protections of state laws. With equitable sharing, law enforcement agencies can and do profit from forfeitures they wouldn’t be able to under state law.”

Most Americans believe they live in a nation in which the rule of law is paramount, that they are protected by the Constitution from arbitrary decisions by government officials with ulterior motives. Within the confines of established law, citizens are free to do as they will, to make a living, to own property, to dispose of property or deed it to posterity as their interests dictate. At least that’s the way it is supposed to work.

The Goldwater Institute suggests that as citizens it is up to us to see that reality is consistent with the ideal. The Institute urges Arizonans to lobby the legislature to protect Arizonans’ property rights in the following ways:

• Require police and prosecutors to get a criminal conviction before taking someone’s property.
• Remove the profit incentive for police by placing forfeiture money into the state general fund or another neutral fund.
• Forbid state and local agencies from participating in a practice called “equitable sharing,” by which state and local police turn property over to federal agents for seizure and then everyone splits the proceeds.”

Non-residents of Arizona, (unless among the fortunate few who reside in a B or better state), need to take similar action. What we don’t know can hurt us, and once knowing, if we value our liberties, doing nothing is not an option.

In the words of the report, “It’s time to end civil forfeiture. People shouldn’t lose their property without being convicted of a crime, and law enforcement shouldn’t be able to profit from other people’s property.”

Make Judge Tucker proud.