The state of Oregon has passed laws basically giving the government the power to take away your property if law enforcement believes it was involved in a crime, even if you aren't suspected of any crime. In fact, the government can even forfeit property that was unconstitutionally seized! (ORS 131A.050(2)). The government can then sell your property and use that money to fund the very agency that took your property. This is called "civil forfeiture" and is described in Article XV, Section 10 of the Oregon Constitution and in the Oregon Revised Statutes, Chapter 131A.

The Fifth Amendment to the U.S. Constitution declares that no person may "be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Yet, the courts ignore your rights in civil forfeiture cases.

Through the ridiculous use of an "in rem" action, the government pretends that the case is against the property itself, which has no rights, instead of against you, whose rights they would need to respect. They claim that your due process rights are not violated because there is a process to fight the forfeiture — a civil hearing with a low burden of proof in which the government only needs to argue that you "should have known" the property may have been used criminally. They claim that there is no Fifth Amendment "taking" because of the alleged criminal involvement, while ignoring that you weren't even charged with a crime and that the property lacks mens rea (intent) to commit one!

Does this power to forfeit property from law-abiding people sound like it might have the potential to be abused? There have been scores of cases around the country highlighting serious abuses of this power. For example, in Massachusetts, the Caswell family was at risk of losing their million-dollar family business, a motel, to civil forfeiture because a few of their customers (not the motel owners!) were arrested for drug crimes at the property. They won their case in federal court in 2013, ending a legal fight that had taken more than three years. In 2001, a Pennsylvania District Attorney tried to seize the home of an innocent elderly woman after drug dealers ran through her house and dropped their drugs while fleeing from police. Despite the fact that the elderly woman was the victim of trespassing, the DA tried to take her home. This case took more than two years to fight.

Oregon law offers some protections for innocent property owners, but allows those protections to disappear by transferring the forfeiture proceedings to the federal government when the property cannot be seized under Oregon law, or if "pursuing forfeiture under state law would unduly burden the forfeiting agency." (ORS 131A.160(3)). In other words, if the forfeiture would be illegal under Oregon law, or if it would be difficult for the Oregon agency to pursue, they can still try to take your property — and under the federal "equitable sharing" rules, the local law enforcement agencies still get to cash in on the forfeiture.

Criminal forfeiture is an appropriate way to take the profit out of crime. Civil forfeiture is an abominable affront to your property rights that has no place in a civilized society. Forfeiting property from innocent owners is unreasonable — in the Fourth Amendment sense of the word. Because the courts are shamefully derelict in their duty to protect your rights, the legislature must act. ORS 131A ought to be repealed in its entirety, and to protect you against federal forfeiture, replaced with a prohibition against Oregon agencies assisting in federal civil forfeiture proceedings.

Other states have slowly begun to reign in their abusive civil forfeiture systems. Minnesota, for example, now requires a criminal conviction before property is subject to forfeiture. Oregon's time has come. When elected, I will be proud to introduce legislation to protect innocent property owners.

© Kyle Markley
Candidate for Oregon State Representative, District 30