Attempt to Rein in Government Seizures in Kansas Could Have Nationwide Implications

An unregistered handgun and U.S. currency seized during a police investigation of an RV in the Westlake neighborhood of Los Angeles on Jan. 31, 2024. Courtesy of Los Angeles Police Department

Civil forfeiture laws, which empower law enforcement to seize the cash or property of an individual without conviction of a crime, are under renewed scrutiny, with the state of Kansas on the brink of passing new legislation that could reign in the power of the state and have ripple effects nationwide.

Rep. Stephen Owens, the Republican who introduced bill HB2606 into the Kansas legislature, told The Epoch Times that the legislation was necessary to balance out the scales of justice.

“How easy we made it for the state to seize property of the citizens has been absolutely astonishing and it simply never made sense,” Mr. Owens said. “A lot of people have never understood the process or how the current system has worked unless they’ve studied the topic or were the victims of these laws. But it’s hard to overstate how important this issue is from a standpoint of individual liberty.”

“I’m pro-law enforcement but also an advocate of private property rights, and our current civil forfeiture laws have been skewed against the citizenry and towards the side of the state for far too long,” he added.

If the new proposals pass, the law would amend the Kansas Standard Asset Seizure and Forfeiture, which grants the authority to government agencies to seize assets without prosecution or conviction, including theft, prostitution, human trafficking, forgery, and drug related offenses, among others.

The laws have been a financial windfall for the state. Law enforcement took on average $17,000 per day in money and property from Kansans under investigation in 2019 through 2022, with about 62 percent of seizures having a total value of $5,000 or less, according to a study from Americans for Prosperity. Once the money was in state coffers, it would often remain there for over a year. People who were able to recover their seized property took an average of 413 days to get it back.

“Seventy percent of the assets seized are never challenged in court because the odds are so stacked against the people from ever getting it back,” added Mr. Owens.

The new law would increase the threshold for seizures by removing the crime of drug possession from the list of offenses subject to forfeiture, shortening the window of time for property to be returned to the owner, require a judge to approve a probable cause affidavit before a forfeiture case could proceed, and allow defendants who recovered more than half of their property to recoup attorney fees and litigation costs.

The law would also raise the bar for what would be legally required to seize someone’s assets, according to Mr. Owens.

“We moved the standard from a preponderance of evidence, which is 50.1, meaning a judge is barely convinced, to requiring a clear and convincing standard, which means it has to be about 80 percent clear that the gains were ill-gotten,” the representative said of his proposal.

Striking the Right Balance

Civil forfeiture laws have become an increasing source of controversy among many civil libertarians and constitutional advocates who alleged that law enforcement’s seizure of a person’s property absent a conviction in a court of law is a gross violation of individual liberties. Critics also claim that the agencies are often incentivized to confiscate wealth as a way to increase revenue.

However, law enforcement claims that civil forfeiture laws have become an important crime-fighting tool in giving agencies the ability to quickly thwart criminal behavior through the confiscation of assets that could be used to perpetuate further crimes—in particular drug activity.

Greg Glod, senior fellow for public safety and criminal justice at Americans for Prosperity, cited reforms implemented in other states as evidence why reforming or ending civil forfeiture laws won’t negatively impact law enforcement ability to thwart crime.

“The changes included in HB2606 have been implemented in many other jurisdictions across the country and have not hurt law enforcement’s effectiveness of removing the fruits of ill-gotten gains away from criminals in those areas or have seen changes exacerbate the negative consequences to substance abuse, such as overdose.” Mr. Glod told the Kansas House Judiciary Committee in his Feb. 13 testimony.

“Nebraska, for example, completely ended civil forfeiture in 2016. While many proponents of the status quo claim that current policies are critical to saving lives from the harmful and deadly effects of drugs such as fentanyl, the Husker State has the lowest overdose death rate in the country, while Kansas has a rate of death more than double of that.”

House lawmakers voted 119-0 to send HB2606 to the Senate, where it was passed with a few minor changes. Kansas lawmakers are expected to conference this week on the changes before sending the bill to the governor, who is expected to sign it into law.

Mr. Owens says that the bipartisan legislation in Kansas can serve as a template for much needed reform around the rest of the nation, and especially states that continue to have a low threshold for government seizures.

“We have remarkable law enforcement in the state of Kansas and we went from having no one supporting this bill to finding a lot of consensus,” he said. “I hope that people realize there is a way to do this where law enforcement can come on board and that there really is value in ensuring that the assets seized really are ill-gotten gains.

“Let’s at least make sure that before we punish someone and seize the property or cash of a private citizen, that we are following the Constitution,” he added.