Indiana one step closer to forfeiture reform

Indiana could dramatically reduce the length of time law enforcement officials hold onto alleged criminals' seized personal property.

And change could come as early as July 2018. 

The Indiana Senate has unanimously passed a civil forfeiture bill — now headed to the House — that is welcome news to many libertarians and civil rights activists, who say unfettered forfeiture laws lead to abuses of private property rights.   

More:Libertarian lawyer enters fight against Indiana's civil forfeiture law

More:Forfeiture bill faces almost certain death this session

More:Federal judge strikes down part of Indiana's vehicle seizure law

Even law enforcement officials, including Marion County prosecutor Terry Curry, who have traditionally resisted forfeiture reform, support the bill that passed through the Senate this week. 

Still, some critics say the legislation does not properly rein in what they describe as a "policing for profits" system that underlies the state's civil forfeiture process. The legislation also comes as one civil rights group appeals an Indiana forfeiture case to the U.S. Supreme Court.

In Indiana, forfeiture is the legal process in which law enforcement takes from suspected criminals any assets they believe were purchased with money acquired through illegal activity, such as drug dealing. The government can either hold onto the assets — such things as cash, cars or real estate — for a finite period of time and return it to the owner, or sell it and keep the proceeds.  

In some cases, police seize cars, homes — with no charges filed

Republican Sen. Rodric Bray, R-Martinsville — who co-wrote Senate Bill 99 with Sen. Eric Bassler, R-Washington — says the version that passed "is exactly what came out of summer study committee." 

"A lot of people had a hand in crafting this legislation," Bray told IndyStar. 

The bill, if passed, would require a prosecuting attorney to file an affidavit of probable cause with a court no later than seven days after property is seized. It also calls for the return of the property to the owner if the court does not find probable cause. 

Under current Indiana law, the executive branch can hold real property or vehicles for up to six months, and if the state decides to file a forfeiture claim against the asset within the first 180 days, the property is held indefinitely until the case is concluded, which can often be several additional months. ​

Curry told IndyStar that he believes "this legislation strikes an appropriate balance by maintaining law enforcement's ability to seize the profits of criminal activity while providing significant protections for property owners." 

Jeff Cardella, a professor at Indiana University's Robert H. McKinney School of Law calls the bill "a huge improvement compared to the old law," but still "constitutionally defective."

In Nov. 2016,  Cardella filed a federal class-action lawsuit, on behalf of Leroy Washington, whose vehicle was taken by police in September 2016. 

The lawsuit argues that the Indiana law that allows police to seize property from alleged drug dealers and others, regardless of their guilt or innocence, violates criminal defendants' constitutional right to due process.

Last August, U.S. District Chief Judge Jane Magnus-Stinson ruled in Washington's favor and said that Indiana's forfeiture law violates the due process clause of the Fifth and Fourteenth Amendments of the U.S. Constitution. 

Indiana Attorney General Curtis Hill appealed the ruling to the 7th Circuit Court of Appeals in Chicago, where a judge has most recently issued a stay in the case.

That is not the only case the state and county face. 

Sam Gedge, an attorney at the Institute for Justice, a libertarian nonprofit based in Arlington, Va., says Bray's bill "enshrines a profit incentive that would go to police and prosecutors," when civil forfeiture proceeds are supposed to be directed to the state’s common school fund, per Indiana statute.

Gedge filed a lawsuit in February 2016 in Marion Superior Court charging the IMPD and prosecutors with violating the Indiana Constitution by not forwarding forfeiture funds to the common school fund. Instead, Gedge says the county is keeping 100 percent of the money in a “policing for profit” scheme.

There will be a summary judgement hearing on the case in March. 

The organization has also filed a petition with the U.S. Supreme Court, appealing an Indiana Supreme Court forfeiture ruling that states while the federal government cannot impose excessive fines under the 8th amendment, that rule does not apply to local and state governments.  

Today, all states allow for forfeiture, and there are more than 400 federal forfeiture statutes. Legal opinions written on the matter show an inconsistency as to what is and is not a violation of an individual's property rights.

In the past two years, more than 12 states, including Florida, New Mexico, Nebraska and Maryland, have passed some form of civil forfeiture reform.

Bray's bill, which has not been assigned to a committee, is headed to the House. Rep. Gregory Steuerwald, R-Avon, has co-sponsored the legislation. 

Addressing the criticism, Bray says his bill is not perfect, but "there is a sense of urgency" that the legislature has to find a solution. 

Call IndyStar reporter Fatima Hussein at (317) 444-6209. Follow her on Twitter: @fatimathefatima.