SP0288, LD 888, item 1, An Act To Strengthen Protections against Civil Asset Forfeiture

An Act To Strengthen Protections against Civil Asset Forfeiture

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 15 MRSA §5821, first ¶, as amended by IB 1999, c. 1, §2, is further amended to read:

Except as provided in section 5821-A, the following are subject to forfeiture to the State and no property right may exist in them if the owner of the following is convicted of a crime in which the following was involved:

Sec. 2. 15 MRSA §5821, sub-§3-A, as repealed and replaced by PL 2013, c. 588, Pt. A, §19, is amended to read:

3-A. Firearms and other weapons. Law enforcement officers may seize all firearms and dangerous weapons that they may find in any lawful search for scheduled drugs in which scheduled drugs are found. Except for those seized weapons listed in a petition filed in the Superior Court pursuant to section 5822 all weapons seized, for every firearm or dangerous weapon seized, if the owner of the firearm or dangerous weapon is convicted of a crime in which the firearm or dangerous weapon was involved, after notice and opportunity for hearing, the firearm or dangerous weapon must be forfeited to the State by the District Court 90 days after a list of the weapons and drugs seized is filed in the District Court in the district in which the weapons and drugs were seized. A weapon need may not be forfeited if the owner appears prior to the declaration of forfeiture and unless the State satisfies the court, by a preponderance of evidence, of all of the following: that the owner of the firearm or dangerous weapon was convicted of a crime in which the firearm or dangerous weapon was involved.

A. That the owner had a possessory interest in the weapon at the time of the seizure sufficient to exclude every person involved with the seized drugs or every person at the site of the seizure;

B. That the owner had no knowledge of or involvement with the drugs and was not at the site of the seizure; and

C. That the owner had not given any involved person permission to possess or use the weapon.

Post-hearing procedures are as provided in section 5822.

A confiscated or forfeited firearm that was confiscated or forfeited because it was used to commit a homicide must be destroyed by the State unless the firearm was stolen and the rightful owner was not the person who committed the homicide, in which case the firearm must be returned to the owner if ascertainable . ;

Sec. 3. 15 MRSA §5821, sub-§3-B, as enacted by PL 2013, c. 328, §2, is amended to read:

3-B. Forfeiture of firearms used in the commission of certain acts. In addition to the provisions of subsection 3-A and Title 17-A, section 1158-A, this subsection controls the forfeiture of firearms used in the commission of certain acts.

A. Except as provided in paragraph B, a firearm is subject to forfeiture to the State if the firearm is used by a person who is the owner of the firearm to commit a criminal act that in fact causes serious bodily injury or death to another human being and, following that act, the person either commits suicide or attempts to commit suicide and the attempt results in the person's becoming incompetent to stand trial or the person is killed or rendered incompetent to stand trial as the result of a justifiable use of deadly force by a law enforcement officer. Except as provided in paragraph B, a property right does not exist in the firearm subject to forfeiture.

B. A firearm that is used in the commission of a criminal act described in paragraph A is exempt from forfeiture under this subsection if the firearm belongs to another person who is the rightful owner from whom the firearm has been stolen and the other person is not a principal or accomplice in the criminal act. In that case, the firearm must be transferred to the other person unless that person is otherwise prohibited from possessing a firearm under applicable law.

A firearm subject to forfeiture pursuant to this subsection that is declared by a court to be forfeited pursuant to section 5822 must be promptly destroyed, or caused to be promptly destroyed, by the law enforcement agency that has custody of the firearm . ;

Sec. 4. 15 MRSA §5821, sub-§7-A, as amended by PL 2011, c. 597, §1, is further amended to read:

7-A. Computers. Except as provided in paragraph A, all computers Computers, as defined in Title 17-A, section 431, subsection 2, and computer equipment, including, but not limited to, printers and scanners, that are used or are attempted to be used in violation of Title 17-A, section 259-A . ; and

A. Property may not be forfeited under this subsection, to the extent of the interest of an owner, by reason of an act or omission established by that owner to have been committed or omitted without the knowledge or consent of the owner; and

Sec. 5. 15 MRSA §5821, sub-§10 is enacted to read:

10. Agreement to transfer property seized to a federal agency prohibited. Unless the seized property includes United States currency in excess of $100,000, a law enforcement agency, prosecuting authority, state agency, county or municipality may not enter into an agreement to transfer or refer property seized under this section to a federal agency directly, indirectly, through adoption, through an intergovernmental joint task force or by other means that circumvent the provisions of this section.

Sec. 6. 15 MRSA §5825, as amended by PL 1991, c. 780, Pt. Y, §116, is further amended to read:

§ 5825. Records

1. Records of forfeited property. Any officer, department or agency having custody of property subject to forfeiture under section 5821 or having disposed of the property shall maintain complete records showing:

A. From whom it received the property;

B. Under what authority it held, received or disposed of the property;

C. To whom it delivered the property;

D. The date and manner of destruction or disposition of the property; and

E. The exact kinds, quantities and forms of the property.

The records shall must be open to inspection by all federal and state officers responsible for enforcing federal and state drug control laws. A copy of each record must be filed with the Department of Public Safety. Persons making final disposition or destruction of the property under court order shall report, under oath, to the court the exact circumstances or of the disposition or destruction.

2. Department of Public Safety; centralized record. The Department of Public Safety shall maintain a centralized record of property seized, held by and ordered to the department and all records filed with the department under subsection 1. A report of the disposition of property previously held by the department and ordered by the court to any governmental entity must be provided at least quarterly to the Commissioner of Administrative and Financial Services and the Office of Fiscal and Program Review for review. These records must include an estimate as to the fair market value of items seized. The Department of Public Safety shall make all records under this subsection available on a publicly accessible website.

SUMMARY

This bill requires that for property to be forfeited under the criminal forfeiture laws the owner of the property be convicted of a crime in which the property was involved, and it prohibits a law enforcement agency or other entity from circumventing the law by an agreement to transfer or refer the property seized to a federal agency. This bill also requires that the records of forfeited property be posted by the Department of Public Safety on a publicly accessible website.

SP0288 LD 888	Session - 128th Maine Legislature		LR 240 Item 1
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