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Civil Forfeiture and the 4th Amendment

Updated on February 15, 2015

Civil forfeiture is an action that can and does hurt law-abiding individuals throughout the United States. The process being used today by the IRS and potentially by other government agencies/entities is in need of change. Currently at least by the IRS the requirements of the Constitution engrained in the 4th amendment is either deliberately not being followed or is being ignored. In this respect the process is broken with regards to the Constitution and being a federal government entity what can or should be done by the Congress and/or the states in protecting property rights of all citizens.

Taking action against this type of activity will not be easy but it must be done. The question to be answered is what action needs to be taken either by Congress and/or the states in response to this activity. Granted there are cases where civil forfeiture is applicable but they must be instituted with respect to Amendment 4 to the Constitution. This includes the requirement to obtain a search warrant with the specifics as identified in the 4th amendment. The language of the fourth amendment is provided below is clear:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

We as a country had specific principles in place as a result of actions by England with regards to this type of activity and as a result it culminated in the 4th amendment being a part of our Constitution. This amendment is one of the critical rights we have with respect to property rights I indicated that there should be actions by Congress and/or the states but in reality actions are available and necessary for both areas. With regards to Congress there is a legislative proposal currently in Congress which is titled the Fourth Amendment and Protection Act of 2013. This legislative proposal was initiated in the last congressional session and the status is in the committee on the Judiciary. It is hoped that this proposal will see new life with the change in control of Congress and the committee chairmen.

In addition in support of this proposal states can and have taken some action with regards to civil forfeiture. Some examples include the Kansas Fourth Amendment Preservation and Protection Act and the Arizona Fourth Amendment Protection Act. They are basically nullification laws. The proposed legislation in Arizona would not "provide material support or assistance in any form to any federal agency that claims the power to collect, or comply with any federal law, rule, regulation or order that purports to authorize the collection of, electronic data or metadata of any person pursuant to any action that is not based on a warrant that particularly describes the person, place and thing to be searched or seized."The bill further prohibits data obtained without a warrant from being used in Arizona courts.The bill would also prohibit public universities within the state from being "NSA research facilities or recruiting grounds." The NSA has agreements with 166 schools, including two Arizona state universities.

Other states involved in this type of action include Utah, Washington, Missouri, Oklahoma and California. The status of these legislative efforts and the fact they have been initiated marks a change of attitude by state legislatures to stand up against actions by the federal government involved in unconstitutional activity. While this only involves civil forfeiture at this time it signals a possible shift from inaction to action in state legislatures. While states must comply with federal law they are not required to enforce federal laws or regulations. They can however reinforce constitutional rights by enacting legislation of this type to protect the rights of their citizens included in the Constitution and their state Constitution. All of these actions by the states identified and any others that may initiate such action would take effect upon the signature of the government of the individual state.

In addition to the proposals associated with civil forfeiture there is a greater movement gaining ground and it is called the nullification movement. This movement is about efforts to resist and nullify mountains of federal actions that are not in conformance with the Constitution. Some type of nullification action has been initiated in nearly every state. In further discussing nullification actions Madison in Federalists papers #46 wrote “Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal

government, would hardly be willing to encounter.”

The reference to what Madison stated amounts to the fact that any federal act or program which is considered unconstitutional or warrantable refusing to participate in its enforcement on a large scale can stop the act or program in its tracks. The Supreme Court has supported this type of action in that the federal government does not have the power or authority to require states to support or enforce federal laws or regulations. One exception would involve actions to ensure the safety and security of their citizens. In this respect it may involve federal laws or regulations but it in most cases if not all it would involve state laws and regulations.


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