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But what can I do? Recommendations for a city council

On October 22, 2010, in federal, states, by Eapen Thampy

In May, after the video of the Kinloch SWAT raid broke on YouTube and went viral, I spoke before the Columbia, Missouri City Council, discussing the links between the emergence of civil asset forfeiture as an off-budget funding source for law enforcement and the rise in paramilitary policing. Later on, I would speak to two city council members directly, Paul Sturtz and Laura Nauser, who both agreed with the substance of the argument but expressed that a city council was perhaps not the right venue for engaging these issues.

I disagree. I believe that city councils and county commissions are precisely the place where these issues need to be engaged most directly. Part of the argument against the use of civil asset forfeiture is that access to off-budget funding sources, especially those controlled by federal agencies like the Department of Justice, has critically undermined the ability of voters to exert local control over law enforcement. Consider that in California, many high-ranking state and local law enforcement officials have spoken publicly that they will not shirk in their enforcement of federal drug laws even if Proposition 19 passes. This is not surprising, since they receive a direct federal payout for this enforcement, and do not want to give up the ability to receive that payout. In this way, Californians are in a struggle not just for new cannabis laws, but to exercise their right to self-determination under the parameters of the US Constitution.

And re-asserting the ability to control our own city and county law enforcement must begin at the state and local levels. Here are the brief recommendations I gave to the Columbia City Council in May:

  • First, stop letting law enforcement access money that we can’t control. If this means not getting any money from the Department of Justice at all, I am fine with that. If voters want to fund SWAT teams going out to enforce search warrants on non-violent suspects, that is their call. We should have the choice to link law enforcement performance to our needs and our abilities to fund them from our own taxes.
  • Second, end usage of civil forfeitures to take property and end usage of adoptive federal forfeitures. If we want to punish criminals by taking their property, we can do that as part of a sentence that happens after a conviction by a jury in a court of law. There are objections to ending the use of civil forfeiture on the grounds that we need to have the tools to fight organized crime, but this is not an argument for civil forfeiture; it is an argument as why we need to increase the extent of our statutory authority to criminally forfeit property. Perhaps current forfeiture money could be allocated for that.
  • Third, improve the transparency and quality of oversight in reporting all forfeitures and how the proceeds are disbursed. Include administrative forfeitures with civil and criminal forfeitures in both state and local audits.

I should note the last recommendation is one that is designed to deter clever prosecutors who figure out that they can use confidential settlement agreements to refile civil forfeitures as administrative ones, which allows them to directly retain those funds if they so choose.

I should also make the argument that civil forfeiture funds have created a shadow entitlement for a lot of city and county governments around the country. The ability to fund salaries, equipment expenses, and other items out of forfeiture money has allowed rent-seeking police unions the ability to press for ever-larger salary and pension benefits. Now local governments in every part of America face an estimated $4 trillion in unfunded pension obligations, forcing some very difficult choices about what voters are willing to pay for.

Being able to reassert control over agencies at the local level is a key part of being able to successfully manage the coming fiscal storm. It is a key part of improving basic democratic governance and accountability. It is key to the assertion and successful defense of all the core Constitutional principles to property and liberty. Without engagement along these parameters, America faces a very dark future indeed.

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