Civil Asset Forfeiture Reform – Taking the Piracy Out of Policing

seizedOklahoma State Senator Kyle Loveless has filed the “Personal Asset Protection Act,” which would drastically change Oklahoma’s civil asset forfeiture law.  Currently, civil asset forfeiture law allows law enforcement to seize someone’s assets even though the owner has never been convicted of a crime and in many instances, is never even charged with a crime.  The bill, SB838, was filed late in this year’s legislative session and will likely not be acted upon this year.  Senator Loveless plans to hold an interim study into civil asset forfeiture law to gather facts and build a coalition of supporters before next year’s session.

The changes that Senator Loveless has proposed are on two main issues.  The first is requiring that a conviction be obtained before assets can be seized.  The second, and the most likely to be opposed by law enforcement, requires seized assets to be sent to Oklahoma’s general revenue fund instead of being retained by the law enforcement agency making the seizure.

Mike McCarville of The McCarville Report has written extensively about civil asset forfeiture on his site.  He posted about Senator Loveless’ proposed reforms.

“The issue with the current law is that the owner is presumed guilty until they can prove their innocence,” Loveless said. “In America, we are proud of our tradition of innocent until proven guilty. Unfortunately, that’s not the case with civil asset forfeiture.  Under current law, the state simply needs to establish a mere suspicion that the property is involved in illegal activity and the owner doesn’t have to be charged with a crime.”

This legislation gives much-needed reforms to the current process including conviction and ‘clear and convincing’ evidence that the property is related to criminal activity.

“What we are doing is requiring the government to prove that there was a crime committed and that the property was used or gained from that crime,” Loveless explained.

Loveless filed the bill with only weeks left in this year’s legislative session.

“I wanted to file the bill as soon as possible to get a jump start on this important issue,” said Loveless. “Many Oklahomans are losing their property without due process and they don’t have the resources or will to fight a system stacked against them.”

The bill has already received a harsh reaction from Oklahoma County Sheriff John Whetsel and Canadian County Sheriff Randall Edwards.

Red Dirt Report – “This is nothing but a grab for money by the state,” Whetsel said. “The need for the law is not there, period.”

Whetsel believes asset forfeitures will “drop a like a rock” because of the proposed changes. The sheriff said he plans to lobby against the measure.

Canadian County Sheriff Randall Edwards took a harsher stance against Loveless’ measure.“

“This is without a doubt the single worst, most damning, most asinine and devastating bill I have ever seen for this state and local law enforcement,” the sheriff wrote in an email to the right-wing blog The McCarville Report.“

“This bill, if passed, will set the war on drugs back 20 years and will literally shut down the drug interdiction in this state.”

Edwards also complained that losing seized property and cash would likely eliminate funding for his public safety programs, K-9 units and four full-time drug interdiction units. He claimed in the email that the drug funds account for a large part of his agency’s equipment, cars, radars, cameras and “a multitude of other public safety equipment that sheriffs will no longer be able to buy.”

I emailed Sheriff Edwards and asked him if he would still oppose the bill if the only change was that a conviction had to be obtained before assets can be seized.  At post time, he has not responded.  If the Sheriff ever responds I will edit the post to include his answer.  Update: The Sheriff’s reply is at the end of this post.

Sheriff Edwards’ department in Canadian County has apparently earned a reputation in the criminal justice system.

For years, criminal defense attorneys have complained that many innocent people have had their property seized because the burden of proof on police agencies is so low. SB 838 would increase that burden from a “preponderance of the evidence” to a “clear and convincing” standard. The bill also would eliminate the requirement that owners prove the property was not used in the commission of a crime.“

“How can you prove a negative?” said Oklahoma City criminal defense lawyer Chad Moody.

Moody labeled law enforcement’s current method of seizing property “real highway robbery.” Moody contends the Canadian County Sheriff’s Department and the Oklahoma Bureau of Narcotics and Dangerous Drugs Control are the worst violators of illegal search and seizure laws. Moody said Canadian County deputies do not use dash cameras during traffic stops, forcing prosecutors and the judge to rely solely on the deputy’s verbal and written account.

I noted on the Canadian County Sheriff’s website this morning that they have four full-time drug interdiction units.  That’s a lot of equipment and salaries to pay for with seizures in addition to everything else the sheriff claims is funded with seizures.  How could that possibly not give law enforcement in Canadian County motivation to seize assets as much as is possible?

Seizing assets has become big business for law enforcement across the nation.  There are an incredible number of horror stories to read about asset seizures from law-abiding, innocent citizens who had cash, vehicles, real estate and other property seized from them.  The process by which they can fight the seizure is long and expensive, causing most to give up and let law enforcement keep their assets.  Law enforcement personnel receive training on asset forfeiture, which includes being trained on what the best items to seize are.

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.

Syndicated columnist George Will wrote a column about Russ Casswell and his wife, who own a motel in Tewksbury, Massachusetts.  The town’s police department is trying to seize the hotel under civil asset forfeiture law because in the last twenty-one years, about thirty motel customers have been arrested on drug-dealing charges.

George Will – The government says the rooms were used to “facilitate” a crime. It does not say the Caswells knew or even that they were supposed to know what was going on in all their rooms all the time.

The U.S. Department of Justice intends to seize it, sell it for perhaps $1.5 million and give up to 80 percent of that to the Tewksbury Police Department, whose budget is just $5.5 million. The Caswells have not been charged with, let alone convicted of, a crime. They are being persecuted by two governments eager to profit from what is antiseptically called the “equitable sharing” of the fruits of civil forfeiture, a process of government enrichment that often is indistinguishable from robbery.

A federal drug agent operating in this region roots around in public records in search of targets — property with at least $50,000 equity. Caswell thinks that if his motel “had a big mortgage, this would not be happening.”

Another problem with civil asset forfeiture laws is that even when someone is charged with a crime and their assets are seized, if they are acquitted the assets do not have to be returned.  I read many instances of this happening.

Cato Institute – A recent case in Iowa highlights the need for reform: a man suspected by police of dealing marijuana had more than $30,000 taken from him at a traffic stop. He was subsequently acquitted of all criminal charges, yet the state courts have ruled that under Iowa’s forfeiture regime the state still gets to keep the money.

From all the asset seizure horror stories I read it seems that any large amount of cash will automatically be declared ‘suspicious’ and seized.  Here is one such instance.

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.

No luck.

“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.”

And just what is it these law enforcement agencies do with the proceeds of their seizures?  Funds are used to pay for equipment, salaries and law enforcement programs.  But funds are also used to pay for other things.

Daily Signal – That would include the purchase of a Dodge Viper for a DARE (Drug Abuse Resistance Education) program, a personal home security system for a district attorney and sports tickets and private parties, among other purchases.

Buzzfeed has an outrageous list of things that were purchased with seized funds.

  1. $10,000 worth of Gatorade.
  2. A Zamboni (ice smoothing machine for a hockey rink).
  3. Segways
  4. “Disney Training”
  5. Flying first-class and renting Cadillacs.
  6. Banquets and beach parties.
  7. Tequila, kegs and a margarita machine.
  8. Tanning salon.
  9. Trips to casinos.
  10. Hawaiian vacation.
  11. Bribing cops.
  12. A Dodge Viper.
  13. Paying convicts to build a “party house.”
  14. Marijuana and prostitutes.

If you want to watch just how one of these seizures happens, here is a news video showing dash cam of a traffic stop on I-40 in Tennessee.  The driver happens to be a military police officer from another state.  It’s clear the officers making the stop are looking for cash to seize.

 

The Fifth Amendment to the Constution says “No person shall be… deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

It seems to me that civil asset forfeiture laws fly in the face of depriving people of property without due process of law.  When a police officer threatens to put your children in foster care unless you sign over all your cash to the city, that is not due process of law; it is highway robbery. 

In times gone by, it used to be that pirates on the high seas would stop trade vessels to pillage their cargo.  Now, some modern-day pirates wear badges and use the law to pillage your property, legally.  As the abuses of civil asset forfeiture laws have become more public, reforms have been passed in several states in an effort to put an end to the plundering and protect the Constitutional rights of citizens.  Hopefully, Senator Loveless will be successful in his efforts here in Oklahoma.  I look forward to following his interim study and hearing from law enforcement officials on why they think they should be allowed to continue seizing assets from people who have never been found guilty of a crime.

Hat tip: Mike McCarville for several links and the video.

Update 5/11/15 12:15pm

I have received a reply from Sheriff Randall Edwards in Canadian County.  I had emailed him to ask two questions:

1.  Would you support changing the law to require a conviction before assets can be seized if your department was still allowed to retain the proceeds of asset seizures?
 
2.  If your answer to the previous question is No, can you please explain why?
 
I have copied and pasted his reply below:
 
Charles
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 its 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. 
Same thing happens when a store clerk takes a credit card from an individual and asks for ID and then is told by the bank to hold the card, it is believed to be stolen or fraudulent ID contraband. 
 
In answer to your question, as far as I am concerned, the law is already in place to make the Seizing party (law enforcement) prove its contraband before it is forfeited.
The problem I have with this “New found since of guilt or duty protecting the innocent”, by state leadership, or should I say fat cat politicians, fighting for the innocent, (implying law-enforcement victimizes innocent people), they are not changing one thing for the rights of the people that the people don’t already have! But, they somehow are jumping to the conclusion that if the “state keeps all the asset forfeitures that we (law enforcement make) then there aren’t going to be as many victims”. 
Really? The only thing these politicians are fighting for is the money! Period! And disguising it as they are helping to protect the innocent! 
They make me sick!
The state has not supported one penny of the cost of my agency fighting drug cartels, nor have I ever seen or heard of a senator or representative out on the highway at three in the morning risking his life shutting down the drug cartel’s traffic of drugs and the funds that funds the illegal drugs.
The way it is now, we use those same confiscated funds to fight the drug cancer of this nation that is eroding our youth, (the fabric of our society and future of our nation).
Let me ask you this, how much of this same money will these politicians use to do the same thing, if they were to get their hands on it?
I can tell you Charles not a red cent would go toward fighting drug cartels! 
How do I know that? Because they are not contributing a red cent toward fighting the war on drugs to my agency now!
 
Thank you Charles for your interest in issues, you keep up the good work. We need more citizens like yourself watch-dogging their leaders and holding them responsible.
Sincerely,
 
 

Randall R. Edwards, Sheriff

Canadian County Sheriff’s Office
El Reno, Oklahoma 73036
 
“All that is necessary for evil to prevail, is for good men to do nothing”…Edmund Burke  1729-1797
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