The House passed—then abruptly un-passed—a ban on civil asset forfeiture in an unusual and deceptive series of moves by a trio of State House politicians.
Speaker of the House Jay Lucas, Speaker Pro Tem Tommy Pope, and House Rules Chairman Alan Clemmons
Background
Earlier this year, The Greenville News’ published their bombshell TAKEN exposé documenting how cops in South Carolina legally seize property from citizens without due process. This report took the State House by storm and generated considerable public pressure to end civil asset forfeiture.
Rep. Alan Clemmons responded immediately by filing H.3968, The Asset Forfeiture and Property Protection Act. This bill is modeled after the New Mexico law, which is the strongest law of its kind in the nation.
It wasn’t his first bill on the topic. Prior to the legislative session, he had also prefiled H.3307 to promote forfeiture transparency via a public database and reporting requirements. This bill was opposed by Sherriffs, claiming they do nothing wrong and that the requirements would be too burdensome.
Nevertheless, the reporting bill (H.3307) breezed through committee, but the Asset Forfeiture and Property Protection Act (H.3968) bogged down for two reasons:
Stiff opposition from law enforcement officers wanting to protect their ability to seize property.
Criticism by some legislators on the way the bill was drafted, alleging that “model” legislation from another state doesn’t address all the legal technicalities and idiosyncrasies unique to South Carolina law.
As the weeks dragged on, it became clear that the House Judiciary Constitutional Laws Subcommittee would not allow the Property Protection Act to pass this year. (This committee happens to be the same “kill committee” that is blocking the Constitutional Carry Act and the Personhood Act.)
There’s more than one way to stop a dirty cop
With a procedural deadline looming, it was time for a different strategy. When the reporting bill (H.3307) came to the House floor for a debate, Rep. Todd Rutherford and Rep. Alan Clemmons proposed a ban on civil asset forfeiture by adding Amendment #3:
Section 23-3-1510. This article is applicable to any provision that authorizes a law enforcement agency to seize property that is used in the commission of a criminal offense as provided by law. No other type of forfeiture by law enforcement is authorized as of the effective date of this section including, but not limited to, civil-administrative forfeitures or civil-judicial forfeitures;
With this tiny stop-gap amendment, H.3307 became a far more significant bill. Not only would law enforcement be required to disclose forfeitures, they would also be prohibited from seizing property with no criminal conviction.
Pope Strikes
The chief opponent of Amendment #3 was Speaker Jay Lucas’ right-hand guy—Rep. Tommy Pope, Speaker Pro Tem of the House, and a former Republican prosecutor from York County, South Carolina. Pope criticized the amendment’s authors for circumventing the committee process rather than waiting for the Asset Forfeiture and Property Protection Act to make its way through committee.
“Anytime a member of the political class tells you something, ask yourself, ‘If I believe them and do what they say, how will it benefit them?’”
Fortunately, his protests fell flat. Clearly Pope was stalling, and didn’t feel the sense of urgency to protect private property, due process, and respectability of the badge. Over his protests, the House adopted the amendment and passed the bill anyway.
Rather disingenuously, Pope voted for the bill as amended, but he had a plan.
When at first you don’t succeed…
Normally when a House bill passes second reading, it’s done. The next day the bill comes up for one final voice vote with no debate and the bill moves over to the Senate.
What you probably didn’t learn in civics class or “Schoolhouse Rock” is that South Carolina rules allow for a motion to reconsider any vote. If this motion passes, the process rewinds and it’s like the vote which was reconsidered never happened.
The next day, while everyone was expecting the third reading voice vote (and thus not paying attention), Rep. Pope moved to reconsider the previous day’s second reading vote which passed the bill. A few legislators recognized what was about to happen and tried to stop his motion, but fell 30 votes short.
Pope’s motion to reconsider second reading passed, wiping out the previous day’s passage of the bill, and setting up H.3307 for further amendments.
Backroom deal-making
Walking out of the House chamber that day after Pope’s motion to reconsider, I asked Rep. Clemmons if he felt like he had been stabbed in the back. He admitted that “he was tricked.”
From this point on, Speakers Lucas and Pope managed to stay nearly invisible. We’ll probably never know for sure who all the players were or who made the deal, but it isn’t a stretch to think that both of them had something to do with it.
During the week of 3/28/19 to 4/04/19, a few things happened:
Nearly a dozen amendments to H.3307 were filed.
Speaker of the House Jay Lucas appointed a special committee to study the Property Protection Act and draft an alternate version of the bill.
Rep. Clemmons was somehow induced to strip out the property protection amendment in his reporting bill.
On April 4th, Clemmons and Pope proposed Amendment #11 which reverted the reporting bill to just…reporting. That’s all. No more property protection. Some of us tried to block this amendment, but fell 28 votes short. The House then passed H.3307 for the second time.
Oddly enough, that very day, there was an announcement that Clemmons is one of four candidates being considered for the lucrative job of City Attorney for the City of Myrtle Beach. Was this $150k-per-year job used as an inducement to get Clemmons to cooperate and kill his own bill?
Outcome
Confused? It’s kind of on purpose.
This kind of procedural and backroom trickery is exactly how politicians like Jay Lucas and Tommy Pope can accurately claim they voted for the bill while secretly working to defeat the bill.
It’s also how Rep. Alan Clemmons gets to tell his constituents that he fought to protect their property from greedy cops, all the while cooperating with House leadership to defeat his own reform for political expediency—or perhaps even personal financial gain.
Where do things stand now?
H.3307, stripped of meaningful reform, goes to the Senate. It requires cops to report forfeitures, but allows them to continue the practice.
H.3968 goes through the meat grinder committee. Who knows what it will look like when they get done—if they ever get done. It won’t be this year, that much is for sure.
Meanwhile, hold onto your stuff for another year.
Timeline of Events
12/18/2018
Rep. Alan Clemmons pre-files H.3307 to create a public forfeiture database and establish reporting requirements.
02/28/2019
House Judiciary Constitutional Laws subcommittee hears the bill, and passes it (agenda).
03/20/2019
House Judiciary Committee passes H.3307.
03/27/2019
Rep. Todd Rutherford and Rep. Alan Clemmons amend H.3307 to ban civil asset forfeiture (amendment #3). Rep. Tommy Pope opposed amending the bill, but the amendment was adopted by a voice vote.
03/27/2019
House passes H.3307 as amended by a vote of 104-6.
03/28/2019
Rep. Tommy Pope makes the motion to undo (reconsider) the vote to pass H.3307 as amended. The House refuses to table this motion by a vote of 20-80.
04/04/2019
Rep. Clemmons and Rep. Pope propose amendment #11, which reverts H.3307 back to its original version, stripping out the previously adopted Rutherford-Clemmons amendment to ban civil asset forfeiture. The House refuses to table amendment #11 by a vote of 25-81, then adopts the amendment on a voice vote.
04/04/2019
House again passes H.3307 on second reading by a vote of 86-17.