Reprinted from the Des Moines Register June 1.
A rose to the Iowa Supreme Court, whose ruling last month should put a significant dent in property forfeiture abuses by Iowa law enforcement agencies.
The Fourth Amendment to the Constitution protects Americans from government search or seizure of property without due process of law. And yet the Des Moines Register found in 2016 agencies had seized more than $55 million and more than 4,200 vehicles over the past 20 years, in some cases without ever charging the owner with a crime.
That was the case with Jean Carlos Herrera. He filed a lawsuit after a Department of Transportation officer seized the 16-year-old SUV he was driving and $45,000 in cash after a traffic stop in September 2015 in Pottawattamie County.
Herrera denied the officer permission to search the vehicle, but he did it anyway, citing inconsistencies in Herrera’s and a passenger’s stories about why they were traveling from New York to Los Angeles. A trained police dog detected the odor of narcotics, according to court records, but no narcotics were found.
The officers seized almost $45,000 they found in a hidden compartment, along with the SUV, a partially disassembled soft-serve ice cream machine and tools. They issued Herrera a speeding ticket but never charged him with a crime.
The Supreme Court, ruling in Herrera’s case, found:
- Courts must decide whether law enforcement properly and lawfully seized items before deciding a claim against the property. The government can’t use the seized property as evidence in a forfeiture claim if the property was seized illegally.
- Officers can’t force people to answer questions about seized property as a condition for its return. That could force someone to choose between possibly incriminating himself or forfeiting the property.
- Prosecutors can’t avoid paying attorney fees for people trying to get their property back by strategically dropping a forfeiture case at the last minute. In some cases, the cost of legal fees to get property back could exceed the value of the property.
The Supreme Court’s 6-0 ruling demolishes several of the daunting barriers people have faced in trying to reclaim property seized from them even though they were never charged with a crime.
It will be up to the Legislature, however, to eliminate the incentive for law enforcement to risk trying to grab property even though they can’t make a case. Currently, law enforcement agencies get to keep the money they seize; they also keep the money from seized property sold at auction. That money should go to the state general fund or perhaps toward funding drug courts instead of staying with the agency that seized it.
Iowans might think it’s fine for police to get a suspected drug dealer’s car and stash, even if they can’t pin a crime on the person. It’s like a toll for traffickers crossing through our state. But the innocent and the not-proven-guilty have the same constitutional protections. We can’t deprive rights from the probably guilty without depriving them from everyone.
Gun vs. kids
A thistle to Gov. Kim Reynolds for blocking state regulators’ plans and instead hoping the Iowa Legislature would require safe storage of guns in child care centers. Because she refused to allow administrators to do their jobs, operators of child care centers and home day cares remain free to keep loaded weapons on the premises and not tell parents.
That’s quite an accomplishment, governor.
An Iowa Department of Human Services proposal in December would have required guns to be locked up and kept separate from ammunition. Parents would have needed to be notified if a gun was on the premises. The Iowa Council on Human Services must approve all rules before putting them into effect.
Keeping guns secure in a child care center does not infringe on anyone’s Second Amendment rights. It is a matter of basic safety and common sense. That is likely why the vast majority of states have such a requirement. That is likely why no one from the public responded with a formal comment when DHS staff posted a standard “notice of intended action” about the rules last November.
But a lobbyist for the Iowa Firearms Coalition said he expressed concern to the governor’s office, and Reynolds’ staff assured him the proposal was being put on hold. She publicly said she preferred lawmakers decide the issue.
So how did leaving this up to the GOP-controlled Iowa Legislature work out? A Democratic legislator introduced a bill, but it went nowhere. Republicans, who have worked to put more guns in the hands of more people to carry more places, were apparently not interested.
That is hardly a surprise. And thanks to the governor’s allegiance to the gun lobby and her interference with basic rule-making, children and child care workers are less safe than they could be.