The ACLU of North Dakota opposes Senate Bill 2044, legislation that would increase the legal penalties for tampering with or damaging a critical infrastructure facility or public service.

The bill would criminalize activity far beyond the intentional causing of property damage, extending penalties to activity such as “interfering with” or “inhibiting” the operations of critical infrastructure.

Existing law already prohibits trespass and malicious destruction of property and conspiracies to commit the same. Given that, this bill’s focus on critical infrastructure facilities belies its neutral purpose – as do its excessive fines. Additionally, Senate Bill 2044 would punish organizations found to be a conspirator with those individuals found to be in violation of the new prohibitions. Making an organization criminally liable for all damage would impermissibly burden the rights of political association that are protected by the First Amendment – the literal embodiment of guilt by association.

Senate Bill 2044 - like similar legislation introduced in 2019 in eight states including Oklahoma, Idaho, Wyoming, Illinois, Indiana, Mississippi, Missouri and Pennsylvania - builds on a trend of anti-protest legislation that aims to chill protesters from using precisely those tactics that have proven most successful for getting their voices heard.

At best, Senate Bill 2044 is entirely unnecessary. At worst, it is meant to chill speech.

Historically, civil forfeiture, which allows police to seize — and then keep or sell — any property they allege is involved in a crime, was focused on legitimate public safety purposes of stopping drug kingpins and criminal enterprises. It was a way for law enforcement to cripple large-scale criminal enterprises by diverting their resources.

But today, aided by deeply flawed laws like those in North Dakota, many police departments use forfeiture to benefit their bottom lines, making seizures motivated by profit rather than crime-fighting. For people whose property has been seized through civil asset forfeiture, legally regaining such property is notoriously difficult and expensive, with costs sometimes exceeding the value of the property.

That’s why the ACLU of North Dakota is happy to see that a working group has been appointed to House Bill 1286, a bill that would substantially overhaul civil forfeiture in the state.

The ACLU of North Dakota supports House Bill 1286. Law enforcement’s retention of forfeiture proceeds violates two key constitutional principles: due process and separation of powers. By passing House Bill 1286, the legislature can rectify serious flaws in state law and establish significant safeguards for innocent North Dakotans.

First and foremost, House Bill 1286 would deposit all civil forfeiture proceeds into the state school fund, redirecting those funds away from law enforcement coffers. Currently, after property has been forfeited, agencies can retain up to 100 percent of the proceeds. This creates a perverse incentive to pursue forfeiture cases, a practice widely criticized as “policing for profit.” According to the bill’s fiscal note, state law enforcement and regional task forces have generated an estimated $1.62 million in forfeiture funding.

Law enforcement’s retention of forfeiture proceeds violates two key constitutional principles: due process and separation of powers. Giving law enforcement a direct financial stake in seizures violates the basic due process requirement of impartiality in the administration of justice—a bedrock principle of the American legal system. Allowing state and local law enforcement to directly benefit from forfeiture proceeds dangerously shifts law enforcement priorities from fairly and impartially administering justice to generating revenue.

Moreover, funding agencies outside the legislative process violate the separation of powers. State legislators are responsible for raising and appropriating funds. By retaining forfeiture proceeds, police departments and prosecutors’ offices — members of the executive branch — become self-financing agencies, unaccountable to members of the North Dakota legislature, and, by extension, to the public at large.

Second, House Bill 1286 would strengthen due process for property owners facing civil forfeiture. The bill would require a conviction in criminal court before property can be forfeited in civil court. Today, only 12 states (including Minnesota and Montana) have similar protections for property owners.

Another three states (Nebraska, New Mexico and North Carolina) have abolished civil forfeiture entirely, and replaced it with criminal forfeiture. To further shield owners, House Bill 1286 would raise the standard of proof from probable cause to clear and convincing evidence. In addition, the bill would create a new proportionality hearing that would allow owners to challenge “unconstitutionally excessive” forfeitures.

Finally, House Bill 1286 would implement the state’s first reporting requirements for civil forfeiture. North Dakota is one of just six states that doesn’t require any tracking of seizures and forfeitures. This bill would require agencies to annually report the total number of seizures by value and property type, the underlying crimes that led to the seizure, and any additional information the attorney general may require. These disclosure requirements would play a vital role in keeping both the public and legislators well-informed about civil forfeiture in North Dakota.

By enacting these simple, commonsense but vitally needed changes in civil forfeiture law and procedures, House Bill 1286 would protect innocent property owners from being unjustly deprived of their property.

We're concerned.

As North Dakota lawmakers consider House Bill 1521 and Senate Bill 2148, the ACLU of North Dakota has serious concerns about the implementation of Amendment XIV and its constitutionality under the U.S. Constitution.

In November, voters approved the addition of Amendment XIV to the North Dakota Constitution, which tasked the legislature with implementing new campaign finance laws, creating an ethics commission and enacting a foreign political contribution ban. The ACLU of North Dakota opposed the measure prior to the election out of concern that it would institute a host of new restrictions and regulations on political speech and advocacy that would violate the First Amendment rights of all residents. The ACLU did not oppose the creation of an ethics commission in North Dakota.

The ACLU of North Dakota agrees that North Dakotans have a right to know who is spending money to influence the outcome of elections and who is supporting or opposing referenda and ballot initiatives.

However, any legislation requiring disclosure of donor names must be drawn carefully not to sweep more broadly than that. Otherwise, groups engaged in genuine issue advocacy regarding the issues of the day could see their speech chilled. Privacy in one’s associations is integral to the freedom of speech guaranteed by the Constitution – particularly when unpopular opinions are expressed.

This bill isn’t just about election-related speech. It could also apply to speech intended to “influence” state government actions. Citizens calling their legislators to advocate for changes in a particular law or advocacy groups campaigning in support of legislative and regulatory issues that matter most to them might find themselves caught up in trying to figure out these confusing new requirements, or, worse, may find themselves in violation of the law and subject to penalty.

Requiring large or small advocacy groups and non-profit organizations to disclose their donors when they speak about controversial issues like gun rights, religious liberty or abortion would result in less speech about those issues. That is a clear harm to public discourse and a result directly opposed to the values embodied by the First Amendment. To protect the First Amendment speech and association rights of North Dakotans, the state should include precise definitions limiting the application of this law to ‘express advocacy’ of the election or defeat of a candidate for office or the adoption or rejection of a statewide referendum or ballot initiative.  

Additionally, it is in the best interest of North Dakotans for legislators to create a robust ethics commission.

The majority of states throughout the country have ethics commissions to protect the integrity of their elections and we support the formation of a similar institution in North Dakota. “The ethics commission not only needs to conform to the requirements of Amendment XIV, but also should be vested with the power to thoroughly investigate any potential ethics violations.