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Legislation in Virginia Protects Property Owners from Government Overreach

In 2012, Mandrel Stuart was stopped by Fairfax County police and detained without charges because his SUV had tinted windows. Not only was he handcuffed, but he was stripped of $17,550 in cash. Mr. Stuart intended to use that cash for equipment and supplies for his barbecue restaurant in Staunton, Virginia. After hiring a lawyer, a jury determined in 2013 that he was entitled to his money. However, he lost his restaurant in the process due to the financial stress of the circumstances.

Senate Bill 457 make life a little easier for innocent owners like Mr. Stuart. It moves to strengthen language in the asset forfeiture section of the Code of Virginia under Section 19.2-386.10. The language clarifies the standard of proof applied to either party in a civil asset forfeiture trial proceeding, as well as instances of remission petitions after trial.

Civil asset forfeiture laws throughout the country are in need of substantial reform in order to protect citizens' basic rights. Asset forfeiture practice consistently tramples over Fifth and Fourteenth amendment by violating due process rights. Not only does this practice violate rights afforded under the Bill of Rights, in Virginia, it violates Article I, Section 11 of the Virginia Constitution which states, “That no person shall be deprived of his life, liberty, or property, without due process of law.”

According to both FreedomWorks and the Institute for Justice, Virginia ranks very low, receiving a score of D-. Specifically, Virginia does not require a criminal conviction to forfeit property, it offers minimal protections for third-party property owners, and 100 percent of its forfeiture proceeds go back to law enforcement.

Introduced by state Sen. Bill Carrico (R-Galax), whom FreedomWorks' activists met with last fall, SB 457 seeks to insert language that clearly indicates what standard of proof is required for both the defendant and plaintiff in a civil asset forfeiture trial proceeding. On a positive note, Sec. 19.2-386.10 already places the burden of proof on the state to prove that a person’s property is subject to forfeiture. SB 457 aims to clarify the state’s burden to a clear and convincing standard of proof. Additionally, it provides the property owner the opportunity to prove only by a preponderance of the evidence that his or her interest in his or her property is exempt from forfeiture.

Currently, the bill has passed the senate unanimously. On Friday, February 12, Senator Chap Petersen (D- Fairfax County) inserted a substitute to SB 457 with an additional provision requiring a criminal conviction of the property owner before permitting the state the authority to seize assets. The substitute was rejected on Monday, February 15, with all republicans voting against Sen. Petersen’s changes. Fortunately enough, the original changes included in SB 457 will still go forward for a vote in the house.

While changes attempted by Sen. Petersen would have improved civil asset forfeiture practice in the state of Virginia significantly, the current changes proposed in SB 457 will help restrict the state’s flexibility on asset forfeiture. Requiring the state to provide a stronger argument in court before acquiring an owner’s assets helps Virginia move in the right direction. Full restoration of citizens’ property rights against law enforcement is an ongoing struggle. Changes that improve the current state of affairs is not only a welcomed effort but necessary in that struggle.