U.S. Attorney General Jeff Sessions’ revival of civil forfeiture might make national gun confiscation possible. Second Amendment supporters should be concerned because Sessions has just made it a lot easier for law enforcement officers to seize firearms.
“Under the Attorney General’s Order, federal adoption of all types of assets seized lawfully by state or local law enforcement under their respective state laws is authorized whenever the conduct giving rise to the seizure violates federal law,” a U.S. Department of Justice policy directive issued on July 19, 2017 states.
That gives any law enforcement officer anywhere in the United States the right to seize any money or property if he or she thinks federal law has been violated. Theoretically that gives any cop the right to take a gun if he thinks its owner has violated federal law.
How Civil Forfeiture Threatens Second Amendment Rights
This horrendous policy sounds like something former New York Mayor Michael Bloomberg would come up with. Taken to its logical extreme, this policy might lead to nationwide Stop and Frisk. Stop and Frisk was the atrocious’ and unconstitutional policy, in which New York cops stopped all young men on the streets and searched them for guns.
Obviously neither Sessions; nor his boss President Trump, intends nationwide gun confiscation – but what about the next President? How would an anti-gun Democrat like Governor Andrew Cuomo of New York use civil forfeiture? Theoretically Cuomo’s attorney general would be able to issue a policy directive empowering police to seize every gun that might violate federal law; for example all semiautomatic rifles.
What’s worse is the guns could be seized without a warrant or even criminal charges. Under present federal forfeiture practices police can seize property and money without criminal charges, or even an arrest.
The practice is particularly cruel because forfeiture is a civil matter, there’s no criminal trial, and no public defender. Cops simply take the money or property and as long they don’t put the cuffs on, there’s little you can do. A person would have to hire his own lawyer with his own money to get his own gun back.
Under Sessions’ new policy all cops have to do is send you a letter telling you have the right to hire a lawyer within 45 days. That sounds like a perfect means of depriving the poor of Second Amendment rights.
Why the NRA must Oppose Civil Forfeiture
In other words Sessions might be laying the ground work for the kind of house to house nationwide gun confiscation; that groups like the National Rifle Association (NRA) fear.
Assuming that Second Amendment advocates; or Republicans, will win the next election is not enough. The NRA and other Second Amendment supporters must launch a vocal campaign to get Sessions and Trump to end civil forfeiture now. They must also lobby congress for federal legislation banning civil forfeiture once and for all.
There would be strong support for such a law; around 84% of Americans oppose asset forfeiture, according to a Cato Institute/Yougov poll. The support would be bipartisan with both the Koch Brothers and the American Civil Liberties Union (ACLU) lobbying for it.
Such legislation has already been introduced as the Fifth Amendment Integrity Restoration (FAIR) Act by U.S. Senator Rand Paul (R-Kentucky) and U.S. Representative Tim Walberg (R-Michigan), The Hill reported. The FAIR Act is based on recommendations from the Heritage Foundation so it is hardly liberal.
NRA support would easily get the FAIR Act passed and there’s a good chance President Trump, who is scared to death of the NRA, would sign it. The NRA can even give Trump an offer he cannot refuse by saying; “sign FAIR or no endorsement in 2020.”
What is Civil Forfeiture and Why Should you be Afraid of it?
“Civil forfeiture—a process by which the government can take and sell your property without ever convicting, or even charging, you with a crime—is one of the greatest threats to property rights in the nation today.” – Statement at the Institute for Justice’s Endforfeiture.com website.
Essentially civil forfeiture is a scam designed to do an end run around the criminal justice system and the protections afforded by the Second, Fifth and Fourth Amendments to the Constitution. It works like this:
- Law enforcement seizes property or money from an individual. Often telling the person he or she can avoid jail by cooperating.
- A prosecutor files a civil lawsuit against the property or money involved not the individual. That means a prosecutor could sue a gun, guns or even a box of ammunition if he or she wished. This is not fantasy it is a real legal doctrine known as deodand; which has been around since Medieval Times.
- “Civil forfeiture is a legal fiction that pretends to try inanimate objects for their involvement with criminal activity,” the Institute for Justice complained. “Civil forfeiture actions are in rem proceedings, which means ‘against a thing.’ That is why civil forfeiture proceedings have bizarre titles, such as United States v. $35,651.11 in U.S. Currency, or State of Texas v. One 2004 Chevrolet Silverado.”
- Since the lawsuit is against property or money; and in civil court, the owner lacks the rights he or she would have in criminal court. Among other things a public defender cannot be used, so the owner has to hire an attorney to get his or her own property back. This makes civil forfeiture a “poor tax” because the poor lack the means to fight it. It also falls disproportionately on minorities and the working class.
- The money or property is then turned over to the law enforcement agency or prosecutors. This gives them a strong incentive to engage in the practice and makes such entities less accountable to voters and elected officials because they have an independent source of funds.
For a more detailed explanation of civil forfeiture and its human costs see the Institute for Justice’s excellent End Civil Forfeiture website.
Civil forfeiture is far more pervasive than you might think. The value of goods and money seized through civil forfeiture in 2014 exceeded the value of items stolen by burglars in the United States in 2014, The Washington Post reported. The Institute for Justice estimated that the Treasury and Justice Departments raked in $5 billion; through forfeiture in 2014, while burglary losses totalled $3.5 billion according to the FBI.
All Second Amendment advocates need to take a strong stand against civil forfeiture now because it is a threat to everybody’s civil rights. Simply hoping that Republicans win the next election is wishful thinking. What are needed are laws and judges that actually follow the constitution and protect all of our rights.