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THINK FORFEITURE

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Does anyone recall a minor flap a few years ago when the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) was giving away utility tools with the legend “Think Forfeiture.” The story lasted for only a short while in a few magazines and was published on numerous web sites. The breadth, scope and cost of this gift program were never revealed, nor the intended purpose. The feature of the story, what got the attention of most people, was that ATF was thinking forfeiture. It was advertising forfeitures. It did not make any sense then, nor does it make any sense now. A few things are certain. The idea was approved by someone in ATF with authority; someone contracted with a supplier to produce the tools and someone authorized payment. Whether this matter was investigated for misuse of government funds is not known. Congress gives government agencies taxpayer money for specific purposes. In the case of ATF, the money is for the administration and enforcement of the federal firearms and explosives laws and it is expected to spend those funds in furtherance of those purposes. The use of government appropriated funds to buy trinkets to curry favor with recipients does not appear to further any government purpose.

 

What is forfeiture? In simple terms, it is a process whereby the government seizes property and then divests the owner of all property rights. The government then has full title in the property and is free to dispose of it. Properties subject to forfeiture include both real and personal property, including such things as U.S. currency; houses; commercial buildings; conveyances such as airplanes, ships and cars and; of course, firearms. Following forfeiture, the property can then be used by the seizing agency, sold, given away, or destroyed.

 

The federal law authorizing forfeiture of National Firearms Act (NFA) firearms is antiquated and badly in need of reform. The law, 26 U.S.C. 5872, provides that an NFA firearm is subject to forfeiture if such firearm is used or acquired in violation of the NFA. Following forfeiture, federal law requires that NFA firearms be destroyed, placed in service, or otherwise used by the ATF or other federal or state law enforcement agency. The law governing forfeiture contains not a scintilla of due process and encourages ATF to deprive individuals of their property for years without any requirement to allege or identify the acts which constitute “used or acquired in violation of the NFA.” In many cases, the long delays in forfeiting NFA firearms are used as leverage to negotiate a guilty plea in exchange for return of a valuable collection. In many other cases, neither the owner nor the NFA firearm is ever charged. NFA firearms are taxable items and the law, including the forfeiture law, is codified in the Internal Revenue Code, Chapter 53, Title 26 of the U.S. Code.

 

In the year 2000, massive, across the board reforms of the federal forfeiture laws were enacted to curtail abuses. The Civil Asset Forfeiture Reform Act (CAFRA), however, exempted forfeitures under the Internal Revenue Code and U.S. Customs laws. Thus, federal law ended up with one set of procedures for conventional firearms (those defined in Title 18) and another set of procedures for NFA firearms. Title 18 firearms are subject to the reforms of CAFRA while the potential for ATF abuses under existing NFA forfeiture proceedings are limitless.

 

To provide a few examples of the differences, when applying the CAFRA reforms to the forfeiture of a firearm defined in Title 18, ATF must initiate an administrative forfeiture action within 60 days of the seizure. If ATF fails to serve notice within 60 days of seizure, the firearm must be returned unless it is contraband or otherwise unlawful for the property owner to possess.

 

The property owner is given 35 days within which to file a claim of ownership and demand a judicial forfeiture. The owner of Title 18 firearms can file a claim of ownership and demand judicial forfeiture at not cost. Upon receipt of the ownership claim, ATF must refer the forfeiture to the U.S. Attorney in the district of seizure and a civil forfeiture complaint against the firearm must be filed in a federal district court within 90 days of receipt of the claim. Thus, there is a guarantee that the property owner will have a day in court in less than six months.

 

Significant contrasts are obvious in the laws governing NFA forfeitures. First, there is absolutely no time limit for ATF to give notice of seizure or initiate an administrative forfeiture. It is not uncommon for ATF to send notice of the seizure of property a year or years after the seizure, all the while maintaining custody of the firearms and thus depriving the owner of their lawful possession and use. Upon receipt of an ATF Notice of Seizure and initiation of Administrative Forfeiture, the property owner must respond within twenty (20) days with a claim of ownership and a demand for judicial forfeiture. To make such a claim, he must post a cost bond in the amount of 10 percent of the assessed value of the NFA firearm or firearms. The purpose of the cost bond is to have the owner of NFA firearms pay for the privilege of being stripped of all ownership rights. Presumably, the only time constraint imposed on ATF in providing notice of seizure and initiation of administrative forfeiture is the statute of limitations for prosecuting an NFA violation, although there is no certainty about that. Since forfeitures are civil in nature, the statute of limitations may not be applicable. Unlike a Title 18 forfeiture, there is no 90-day requirement for filing a civil forfeiture complaint. In fact, there is no deadline at all and it is rare, indeed, for a property owner to get into court within a few years.

 

Of course, the ATF Director could, with a pen stroke, require NFA forfeitures to comport with the procedures of CAFRA. If he were to do so, he would eliminate one potential for ATF abuse. That would be fair. In a case that should be closely watched by all owners of NFA firearms, the Supreme Court recently granted Certiorari in a Chicago forfeiture case, Alvarez v. Smith, 129 .C. 1401 (2009). The case flows from the State of Illinois Drug Asset Forfeiture Procedure Act. Chicago is but one of many of the states and cities overwhelmed with debt which, in looking for fertile sources of revenue, have focused on property seized by police. Illinois has pursued this tactic aggressively and appears to have encouraged police and prosecutors to forfeit property, in many cases long before the property owner gets his day in court.

 

Who is the beneficiary of forfeitures by the big city police departments? Is it not the corrupt mayors of our major cities who have no concept of fiscal responsibility; who have amassed huge deficits bordering on bankruptcy? In their never ending search for more revenues, they have targeted their own citizens. This is not about depriving criminals of property purchased with the proceeds of crime. This is about taking guns, selling them, and using the money to feed big government’s failed social programs.

 

Under Illinois law, the state has 187 days after property is seized to file forfeiture proceedings. Following forfeiture, in many cases forfeiture by default, the property is sold. Twenty-five percent of the proceeds of forfeitures goes to the office of the prosecutor and sixty-five percent goes to the seizing law enforcement agency. In 2008, the Chicago Police Department forfeited $13.5 million in assets, twice what it had seized the previous year. Alvarez comes to the Supreme Court from the U.S. Seventh Circuit Court of Appeals, which agreed with the property owner in ruling that the time between seizure and a judicial hearing amounted to an unconstitutional delay. (Compare the time under the Illinois law with the NFA forfeiture law.)

 

The Seventh Circuit imposed a requirement upon the state to provide an informal hearing to establish whether there is probable cause to continue to keep custody of the property. Requiring the government to establish probable cause in NFA forfeitures will not immediately stop ATF from taking NFA firearms and keeping them for years without ever charging the owner with a crime or commencing any civil action against the firearm. But requiring ATF to establish probable cause that the firearm was used or involved in a violation of law within a short time after the seizure would be a good start.

 

The author, Bob Sanders, is a practicing attorney and a current board member of the NRA, nominated by the board’s nominating committee as a candidate for the 2010 board. He is a Benefactor member of the NRA and a life member of the International Association of Chiefs of Police (IACP). A 24-year career as a law enforcement executive with the U.S. Department of Treasury has prepared him to understand the great potential for misuse of federal power against gun owners. His practice includes the defense of gun owners, dealers, importers and manufacturers.