As a citizen I am more than a little disappointed that legislation was required to get prosecutors and law enforcement to recognize the requirement that a defendant be convicted of a crime before any state forfeiture can occur.
You do understand that the government is supposed to be at a disadvantage, right?
I'm very familiar with forfeiture and how it is supposed to work, and the intent of LB1106 was to improve the system. The effort behind LB1106 was a collaboration between the ACLU and the Attorney General's Office, which is a unique dynamic to begin with. So, the Attorney General, county attorneys, and other law enforcement entities were aligned with the views of those of you who have posted here. To suggest otherwise is disingenuous.
For any firearm-related discussion, jump to the second-to-last last paragraph. If you want to gain some information about forfeiture in general, read the entire post.
Most people do not understand the current state of forfeiture laws in Nebraska. State forfeiture in Nebraska is rarely used because the system does not work as it was intended. As an example, since a Nebraska Supreme Court decision in 1999, when a drug dealer carrying methamphetamine and a large amount of cash down I-80 is stopped by law enforcement, the prosecutor can either elect to prosecute the trafficker for the drug offense or seek to forfeit the cash, he cannot do both because the Court has said that doing so is double jeopardy. So, the prosecutor typically chooses to file criminal charges in state court for the drug trafficking offense. At that point, the prosecutor is left with two options: (1) give the drug trafficker back the money he obtained from selling methamphetamine, or (2) involve a federal law enforcement agency in order to forfeit the ill-gotten gains of the drug violation in federal court. If you think the drug dealer should get his drug money back, then you can stop reading here because there is no way we're going to agree on this subject. If the feds decide to prosecute the drug case, then they will just do the forfeiture in federal court. So, in either scenario, state forfeiture is not used and as a result none of the forfeited money goes back to the public schools or the county drug enforcement and education fund.
The example provided above is how the state of Nebraska law has been with regard to drug forfeitures since 1999. Efforts have been made to correct Nebraska's state forfeiture processes since that time, but they have repeatedly been thwarted by Sen. Chambers. Ironically enough, his biggest gripe about forfeiture is that it is being done federally so the proceeds don't support the schools. In reality, federal forfeiture is being pursued by law enforcement because the Legislature hasn't made state forfeiture a workable system. Sen. Chambers' argument is circular.
The purpose of LB1106 was to correct Nebraska's system following the 1999 Nebraska Supreme Court case by requiring a criminal conviction prior to state forfeiture, and making forfeiture a part of the sentence imposed for a criminal conviction. I think this aligns with what the members of the NFOA would expect. Doing so would once again allow law enforcement to utilize the state system instead of taking everything to the federal system. LB1106 was also intended to allow, for the first time under state law, the forfeiture of property used or intended to be used in child pornography offenses. Right now, when a defendant is convicted of a child pornography offense in state court, it is not possible to forfeit his or her computer equipment through which the child pornography was received and stored. As the law currently exists, those items have to be returned to the defendant, even if a conviction is obtained.
Again, the ACLU, the Attorney General, county attorneys, and law enforcement agencies were supportive of LB1106 in its original form. The contention, and subsequent opposition by prosecutors and law enforcement, came with the committee amendment (AM2389).
The largest source of the opposition was the anti-circumvention provision included in AM2389, which was not in the original draft of LB1106 and was not subjected to a public hearing as it was not discussed during the committee hearing on the bill. This provision would prohibit a law enforcement agency from seeking federal adoption of a forfeiture unless it involved $50,000 or more in cash. We're not talking about the property's value being $50,000 or more; it has to be cash money or it can't be federally forfeited. This forecloses the option of forfeiting money (less than $50,000) discovered by state law enforcement officers in an interstate drug trafficking ring unless drugs are found on the trafficker, which would allow for a state conviction. This foreclosure exists even if a federal conviction is obtained. The conspiracy offense, in and of itself, cannot be prosecuted in state court, so the conspiracy offense would have to be prosecuted in federal court. However, AM2389 would prohibit the state law enforcement agency from giving the seized money to a federal agency. So, even though the defendant is convicted for a drug trafficking conspiracy in federal court, he is likely going to be getting the money back that he made from selling drugs. That is an outcome that is hard to stomach.
Prosecutors and law enforcement understand that there should be some limits on when federal forfeiture is sought, but an outright prohibition is not appropriate. We developed compromise language on this point with the ACLU, but certain members of the Legislature were not interested in compromise.
Another point of contention is the reporting requirement of AM2389, which was amended into the bill and was originally a part of LB1108. Prosecutors and law enforcement officers are not opposed to reporting information regarding forfeitures, but the provisions of AM2389 are pretty convoluted. It is not clear what information is required to be reported or who is actually supposed to do the reporting. So, in an effort to workout these issues, compromise language was once again drafted. This would have kept the reporting requirement, but also made it clear what was to be reported and by whom. Again, this compromise was ignored.
There were also other sections of AM2389 that contained technical errors, yet nobody was interested to hear what the people who deal with these laws everyday had to say. Section 1 of AM2389 seemed to me to be counterproductive to the original intent of LB1106, which was to require a conviction before state forfeiture could happen. Instead, Section 1 attempts to set up a separate process whereby forfeiture could occur for property related to child pornography and illegal gambling operations without the necessity that the defendant be convicted of a crime. There are also problems in Section 1 where the cross-references to existing statutes are incorrect.
So, the intentions of everyone involved with the drafting of the original copy of LB1106 would seem to coincide with the positions of many of the members of this forum. There were some obvious problems with the committee amendment that needed to be straightened out, and still do. I have been a part of trying to iron out these issues, but throughout this process prosecutors and law enforcement officers have been made out to be overzealous property snatchers. That characterization could not be farther from the truth. Throughout this process we have been mindful of individual property rights, while keeping in mind that we have to have a system that is functional. A system that doesn't work, or doesn't work properly, is detrimental to everyone.
My point in my previous post is that if the NFOA is going to take a position on something, it should do the background work and understand the issues. Forfeiture is a complex set of laws and issues that can't be understood without some in depth research. By the Board's own admission, it was not even watching LB1106 until it was brought to their attention just before the bill was debated on the floor. The NFOA should also understand the position of prosecutors and law enforcement officers before painting them with a broad brush. Saying that "law enforcement agencies were not against this bill until they found a way to make more money from seizing your assets" is a bunch of bull! It's really tough to begin to count the falsehoods written in the Board's call to action.
For purposes of this audience, I do want to note that the original copy of LB1106 did not mention firearms in any way, shape, or form. Go ahead and check for yourself. That means, firearms were not subject to forfeiture for drug, child pornography, or illegal gambling offenses. AM2389 changed that and included firearms in the list of items that would now be subject to forfeiture if tied to the commission of those types of crimes. LB1106, even as amended, only pertains to drug crimes, child pornography offenses, and illegal gambling operations. How firearms got thrown into the mix by the Judiciary Committee, I'm not sure.
I am and remain a proud member of the NFOA, and even when fulfilling my responsibilities as a prosecutor I am a supporter of the Second Amendment. From my estimation, the original copy of LB1106 had nothing to to with anyone's right to keep and bear arms. We weren't making an effort to seize guns or deprive anyone of their rights without due process of law. The intent of LB1106 was just the opposite; require more due process than what is currently required. As I said, firearms weren't even part of the equation when LB1106 was introduced. AM2389 had several problems to which solutions could have been found (and hopefully still can be). Those solutions were ignored and that is why prosecutors and law enforcement officers opposed the committee amendment. If we are going to be the ones responsible for implementing a forfeiture system, it ought to be a system that works for everyone involved.
