SEIZING RIGHTS

Government Shouldn't Have Dibs On The Property Of Law-Abiding Americans

Congress has an opportunity to restore the Fourth Amendment "right of the
people to be secure ... against unreasonable searches and seizures." In the
past 25 years, government at all levels has seized the property of people
without a court conviction - and in an alarming number of cases, the people
later were found to be innocent.

To rectify the wrong, Rep. Henry Hyde of Illinois, the Republican chairman
of the House Judiciary Committee, has introduced House Resolution 1658,
which would correct the most egregious abuses by government.

Probably the worst seizure case involved Don Scott, a California rancher.
When federal, state and local task force members swooped down to seize his
property in 1992 for alleged marijuana cultivation, Scott was startled and
picked up a gun to defend himself and his wife. He was shot dead by the
government agents.

No marijuana - or anything else illegal - was found on Scott's ranch.

A report by Ventura County District Attorney Michael D. Bradbury concluded
the raid "was motivated, at least in part, by a desire to seize and forfeit
the ranch for the government.... In order to seize and forfeit property
under either California or federal law, there is no requirement that an
individual be arrested or charged criminally."

It's just such abuses of power that HR 1658 would prevent. It would change
the burden of proof regarding property seizure, so a person is considered
innocent until proven guilty in a court of law, as mandated by the Fifth
Amendment.

"Currently, the burden of proof is on the owner to prove it wasn't used in
a drug deal, or other crime," says Tim Lynch, Associate director of the
Washington, D.C.-based Cato Institute for Constitutional Studies.

Hyde's bill would shift that burden to the government. It would stop the
property proceeds from going to the law-enforcement agencies.

"Right now, they get to keep what they seize," Lynch said of the government
agents. That's what apparently led to the tragic shooting of Scott. Under
HR 1658, any seized money would go into the federal government's general fund.

The law would require the feds to pay for any damage to property while in
federal custody. The property owner could sue for damages.

"Right now, if your property is damaged, tough luck," Lynch said.

It would extend the time period people could appeal a property seizure to
60 days from 10 days. The short period to file a claim, just 10 days, shows
how current law favors the government. Can you imagine being clear-headed
enough to line up legal help and press a case immediately after such an
intrusion?

The bond requirement to file a claim to get back stolen property,
amazingly, is 10 percent or $5,000 (whichever is less). The money
supposedly covers government processing costs should a claim be rejected.
"That's a big deterrent for indigent claimants," Lynch said. The Hyde bill
would eliminate the requirement.

Hyde introduced similar legislation last year. But the Justice Department
and the FBI forced amendments to the bill that not only diluted it, but
made seizure laws worse. This time, Lynch believes, chances are better.
"Hyde says his sense is that they're going to get it through the Congress
this year." What about President Clinton? He has been a wild card on the
issue, Lynch said.

HR 1658 is being supported not only by such Republicans as Hyde, but by the
likes of the American Civil Liberties Union and the National Association of
Criminal Defense Lawyers.

Let's hope Congress, including Colorado's delegation, gets behind this
measure.