I find myself in the very unusual position of agreeing with the American Civil Liberties Union of Oklahoma. If you’re a reader of my blog or know anything about my politics you’ll understand what a rare moment this is.
The issue is civil asset forfeiture. State Senator Kyle Loveless has introduced a package of bills to reform civil asset forfeiture laws and he has managed to rankle some law enforcement agencies with his proposals.
What exactly is civil asset forfeiture? If you haven’t read about it, it’s a legal process by which law enforcement officers can seize assets from people suspected of involvement with criminal activity without necessarily charging said person with a crime or even proving that a crime has occurred. Countless people have had large amounts of cash seized from them during traffic stops. Other items seized have included cars, mobile homes, jewelry, computers, and even homes. In one instance I read about, a town’s police department was seizing a local motel because in the last twenty years about thirty motel customers had been arrested for drug charges. The motel owners were never suspected of committing or charged with committing a crime.
The reforms proposed by Senator Loveless include sending forfeitures to a state fund after a conviction, which is probably what rankles law enforcement the most.
The McCarville Report – The new version of Loveless’ proposal is Senate Bill 1189. It carves out five exemptions to the conviction requirement in the reforms. Those exemptions include death of the owner, the owner signing away rights to the property, owner has been granted immunity as part of a plea agreement, and property valued over $50,000.
The measure also establishes a shorter time from for a prosecutor to charge a suspect who had property seized by law enforcement. If passed, the property owner would have to be charged within 30 days or the property would be returned. Prosecutors can request a 30-day extension.
Additionally, the new bill funnels the funds to a newly created Forfeited Assets Distribution Fund which is overseen by a citizen oversight board. The board will then issue the money through grants to drug treatment facilities, drug courts and law enforcement agencies.
The reform requires an annual report on forfeiture seizure by law enforcement. Those reports will be open to the public.
Forfeiture horror stories are becoming more and more common to read about and it seems that some law enforcement agencies are using forfeiture laws as a license to steal. Yes, steal. Law enforcement personnel even attend seminars on civil asset forfeiture to learn about the process and what the best items are to seize.
Daily Signal – At continuing education seminars around the country, civil forfeiture experts are on record not only encouraging law enforcement officers to use the practice, but offering advice on the most lucrative property to seize.
The jackpot items are televisions, cash and cars—jewelry just doesn’t pay, and neither do drugs (which perhaps is why some operations focus on the money coming out of a drug deal rather than the illicit substances going in). Officers were also advised on how to deal with judges who may not simply rubber stamp a forfeiture and how to ensure that forfeiture money stays in the law enforcement family.
At one seminar, Las Cruces, N.M., city attorney Harry Connelly Jr. lamented having to return a brand-new Mercedes to its owner. Officers were so busy lusting after the car’s forfeiture value that they arrested the car’s intoxicated owner for drunk driving before he had even touched his car door.
Santa Fe Sheriff Greg Solano took a similarly hardline stance when he pushed for a county ordinance allowing his office to seize the vehicles of drunk drivers–until his daughter wrecked his BMW while intoxicated. Suddenly on the receiving, or rather losing, end of a forfeiture, Solano changed his tune.
Cash, of course, is the most desired item to seize. From all the seizures I read about it seems that large amounts of cash that are found are almost always seized. And again, no criminal charges have to be filed and no crime has to be proven to have taken place.
Huff Post – After scraping together enough money to produce a music video in Hollywood, 22-year-old Joseph Rivers set out last month on a train trip from Michigan to Los Angeles, hoping it was the start of something big.
Before he made it to California, however, Rivers fell victim to a legal form of government highway robbery.
Rivers changed trains at the Amtrak station in Albuquerque, New Mexico, on April 15, with bags containing his clothes, other possessions and an envelope filled with the $16,000 in cash he had raised with the help of his family, the Albuquerque Journal reports. Agents with the Drug Enforcement Administration got on after him and began looking for people who might be trafficking drugs.
Rivers said the agents questioned passengers at random, asking for their destination and reason for travel. When one of the agents got to Rivers, who was the only black person in his car, according to witnesses, the agent took the interrogation further, asking to search his bags. Rivers complied. The agent found the cash — still in a bank envelope — and decided to seize it on suspicion that it may be tied to narcotics. River pleaded with the agents, explaining his situation and even putting his mother on the phone to verify the story.
“These officers took everything that I had worked so hard to save and even money that was given to me by family that believed in me,” Rivers told the Journal. “I told (the DEA agents) I had no money and no means to survive in Los Angeles if they took my money. They informed me that it was my responsibility to figure out how I was going to do that.”
Rivers, who has since returned to Michigan, fell victim to civil asset forfeiture, a legal tool that has been criticized as a violation of due process and a contradiction of the idea that criminal defendants are presumed innocent until proven guilty. Asset forfeiture allows police to seize property they suspect is related to criminal activity, without even charging its owner with a crime. The charges are filed against the property itself — including cash, jewelry, cars and houses — which can then be sold, with part of the proceeds flowing back to the department that made the seizure.
“We don’t have to prove that the person is guilty,” Sean Waite, the agent in charge at the DEA’s Albuquerque’s office, told the Journal. “It’s that the money is presumed to be guilty.”
“The money is presumed to be guilty.”
What kind of system is it that can presume an object to be guilty of a crime and subject to seizure? ‘We’re letting you go, but that stack of cash is guilty, so we’re taking it from you.’
And what exactly do these law enforcement agencies spend all this money on that they seize?
Buzzfeed has an outrageous list of things that were purchased with seized funds.
- $10,000 worth of Gatorade.
- A Zamboni (ice smoothing machine for a hockey rink).
- “Disney Training”
- Flying first-class and renting Cadillacs.
- Banquets and beach parties.
- Tequila, kegs and a margarita machine.
- Tanning salon.
- Trips to casinos.
- Hawaiian vacation.
- Bribing cops.
- A Dodge Viper.
- Paying convicts to build a “party house.”
- Marijuana and prostitutes.
Senator Loveless has also said ,”We’ve seen retirement parties paid for, plaques paid for, the state auditor’s reports that have come out show a pretty good wealth of misspending.”
Now certainly, most seized funds do go to legitimate law enforcement activities, equipment, salaries, computers, vehicles, dogs, etc. But it seems to be a vicious circle, requiring enough be seized to pay for everything needed to go out and do the seizures. Take the Canadian County Sheriff’s Department here in Oklahoma, for example. As of last year the department had four full-time drug interdiction units. If you’ve ever driven through the El Reno area on Interstate 40 you’ve probably seen the units parked on the side of the road, looking for prey. Four full-time units mean a lot of salaries and equipment to pay for with seized funds.
And apparently, forfeitures have become such an epidemic that in 2014 the total dollar value of assets seized just by federal law enforcement was more than $5 billion. That same year the FBI reported the nation’s burglary losses at $3.5 billion.
Canadian County Sheriff Randall Edwards has been one of the louder opponents to the reforms, saying that the reforms proposed by Loveless will cripple law enforcement’s ability to combat the drug cartels. In a post I wrote last year I included an email I received from Sheriff Edwards, who was answering some questions I had emailed to him. Some of the things he wrote just sound ridiculous and one claim he made I found later to be wrong.
Sheriff Edwards wrote, “First, let me say, I don’t want or agree with taking anything from any person without due process, period! We never have, and never will, the District Attorney’s Office would not be for it either. This idea that we (law enforcement) victimize innocents and take their property, nothing could be farther from the truth. I believe the Constitution to be a complete and inspired document and will defend anyone’s rights found there-in. Any time we seize property assets, or drug monies, it is to preserve it for safe keeping till we can determine if it is stolen, or drug related or illegal contraband. If it’s forfeited it’s because either no one claims it, or they plea guilty and negotiate the forfeiture as a part of their plea of guilt. Or lastly, they are found guilty of related charges and its forfeited. When you stop someone and they have a huge amount of cash, shrink wrapped and hidden in containers of coffee, and the driver has drug trafficking convictions or multiple drug charges on his or her criminal record, then denies ownership or knowledge of the origin of the suspected contraband and then signs a non-ownership affidavit, I think it’s a fair assumption he or she is hiding the fact it’s contraband. On the other hand, if we seize the same money for safe keeping and they want to claim it, they can already go to the D.A. with documents showing they are the rightful and legitimate owner, if they can’t, then by all means, they still have every right to take it to court. If it is found to be legitimate, they get every penny of it returned to them. In fact, in the six years I have been sheriff, I can’t think of anyone who has ever claimed it was legitimate and showed proof of ownership and was not given their assets back.
Perhaps Sheriff Edwards forgot about Moua Yang and his father, Chao Yang, and their experience with a Canadian County Deputy. In March 2009 they were stopped by Canadian County Deputy Mike Stilley for driving 76mph in a 70mph zone. After asking some questions and obtaining permission to search the vehicle, Deputy Stilley discovered $25,000 in cash wrapped in a towel inside a duffel bag. Moua Yang said the money had been saved by his family for a long time. Deputy Stilley believed the money was tied to drug trafficking and seized it. No criminal charges were ever filed. Stilley informed the Yangs they could seek return of the money in court. They did so and the case dragged on for four years until a settlement was reached and $12,845 was returned to the Yangs. You can read the entire story here.
Sheriff Edwards claimed that seizing assets or monies is done “to preserve it for safe keeping until we can determine if it is stolen, or drug related or illegal contraband.” In the Yang’s case, Stilley seized the cash after a K-9 dog reacted to the money, yet the Oklahoma State Bureau of Investigation crime lab analysis of the cash found no drug residue. So why did his department not return the money instead of making the Yangs hire an attorney and go through four years of court proceedings before getting half the money back? Was there ever any proof of criminal activity?
A quote from Deputy Stilley says it all.
“You’ve got twenty-five-grand wrapped the way it was wrapped, no job, two guys telling you that they’re going to different places, one of them is telling you they’re going to a wedding but neither one took any clothing to go to a wedding. In my line of work, we call that a clue,” Stilley said in an interview.
While this may sound suspicious and it’s certainly quite possible the Yangs were involved in criminal activity, should law enforcement be able to seize their property based merely on a suspicion?
The efforts by Senator Loveless to reform civil asset forfeiture laws have drawn the wrath of Oklahoma law enforcement. Agencies such as the Canadian County Sheriff’s Department could potentially lose a lot of funding that is currently generated by their officers seizing property.
The McCarville Report – The Oklahoma Association of Chiefs of Police and the Oklahoma Sheriff’s Association are lobbying lawmakers to oppose Senator Kyle Loveless’ efforts to reform Civil Asset Forfeitures. They have sent letters to the legislators outlining their opposition and why the change would benefit drug traffickers and cartels. However, the letters do not address the changes Loveless has made, including the bill number of the new vehicle for his proposal.
In the Chiefs of Police letter dated January 8, 2016, it outlines a lack of proof there is a problem with law enforcement seizing and keeping the assets of innocent people.
“We’ve seen no evidence to support allegations of widespread abuse of citizens’ rights. Only anecdotal evidence and isolated instances have been offered as “proof” and we strongly contest those claims.”
“No evidence to support allegations of widespread abuse…” “…isolated instances…”
Does abuse of rights have to be ‘widespread’ before it’s a problem law enforcement will deem worthy of being addressed? What if these tactics were taken a step further and people were actually imprisoned based merely on the suspicion of an officer conducting a traffic stop? Sure, they can be innocent but we’ll make them go through four years of court proceedings to prove it. And it will cost them a lot of money for attorneys.
If you’ve read this far, and I know this is a long post, you might have reached the conclusion that I’m anti-law enforcement or soft on crime. Hardly. If you’re a frequent reader of my blog you know that could not be further from the truth. I am all for law enforcement doing all it can to enforce the law and combat the drugs flowing across our highways. But at the same time, the methods used to enforce the law and combat drugs should not be causing harm to innocent people, and that is precisely what civil asset forfeiture laws are doing. Some in law enforcement may be just fine with the “isolated instances” of innocent people having their money stolen, but I am not. I would rather see carloads of cash make their way back to the cartels than see innocent people have their cash and property seized by overzealous officers.
IndyStar – Lt. Don Christ of the (Indianapolis) Metro Drug Task Force said placing an undue burden on an innocent person is “not law enforcement’s intent;” instead, it’s to take away the criminals’ tools.
I’m all for taking away the criminals’ tools. Take their tools, their vehicles, their cash and their freedom. But when innocent people get snared in these seizures and have their cash and property taken away from them without even being accused of a crime, it is time to make law enforcement change their methods.
Washington Post – Mandrel Stuart, a 35-year-old African-American owner of a small barbecue restaurant in Staunton, Va., was stunned when police took $17,550 from him during a stop in 2012 for a minor traffic infraction on Interstate 66 in Fairfax. He rejected a settlement with the government for half of his money and demanded a jury trial. He eventually got his money back but lost his business because he didn’t have the cash to pay his overhead.
“I paid taxes on that money. I worked for that money,” Stuart said. “Why should I give them my money?”