This section covers recent legislation and lobbying activities
related to the reform of state forfeiture laws. Since
state forfeiture reform activities are difficult to find, we would
appreciate it if you would be on the lookout for material not covered
here or in need of update, and forward it to Brenda Grantland for
inclusion. If you would be willing to watch your state's
forfeiture-related proposed legislation and report on it for FEAR,
please email us.
Connecticut’s civil forfeiture laws are not as bad as the
laws in many states. For the government to forfeit your property,
it must have clear and convincing evidence that the property in
question is related to criminal activity and thus subject to
forfeiture. However, once property has been seized, innocent
owners have the burden of proving that they did not know the property
was being used in connection with criminal activity. Connecticut
law enforcement keeps 60 percent of the proceeds from civil
forfeiture. There is no requirement that the state collect data
on forfeitures or proceeds from them.
These laws, however, can still lead to abuse. For instance, in
2001, Debbie Kerpen had $2.76 million, her cars, horse trailers, boat
and tractor seized because of her alleged role as head of a call girl
service—all without a single charge being filed against her.
Unfortunately for Debbie, as ACLU President Nadine Strossen put it,
“She’s facing a greater penalty than she would under any applicable
criminal law, without any of the constitutional protections.”[1]
1 Pagnozzi, A. (2001, July 24). ‘Legal’ excuse to steal. Hartford Courant, p. A3.
Florida’s civil forfeiture laws provide some protections for
property owners but also give law enforcement a large incentive to use
forfeiture—and agencies appear to do just that. The government
must prove by clear and convincing evidence that the property was
related to criminal activity and thus can be forfeited, a higher
standard than most states but still less than the beyond a reasonable
doubt standard required for a criminal conviction. Also, in
Florida owners are not presumed guilty; instead, the government bears
the burden in an innocent owner defense.
Unfortunately, though, law enforcement in Florida still receives 85
percent of the funds generated from civil forfeiture. As a
result, Florida law enforcement makes substantial use of civil
forfeiture at the state level, just as it does through equitable
sharing. In a mere three-year period (2001-2003), the state took
in more than $100 million in forfeiture, and Florida law enforcement
received anywhere from $16 million to $48 million per year in the 2000s
through equitable sharing. (These counts may overlap, as it is
not clear whether Florida included equitable sharing revenue in its
response to information requests.)
This expansive use of civil forfeiture has not only benefitted law
enforcement institutionally, it has also led to personal gain. In
2003, for instance, it was reported that top Tampa Bay police brass
were keeping seized cars for their own use. The seized fleet
consisted of some 42 cars, including a Lincoln Navigator, a Ford
Expedition, and, Police Chief Bennie Holder’s favorite, a $38,000 Chevy
Tahoe.[1]
Kentucky civil forfeiture law affords inadequate protection
to property owners. The state must only show that the property is
related to criminal activity and can be forfeited by a preponderance of
the evidence, a standard significantly lower than that required for
criminal guilt. And property owners have the burden of proof in
an innocent owner claim unless it is real property, such as a home or
land. Moreover, law enforcement agencies receive 100 percent of
the value of any forfeited assets, creating an incentive for law
enforcement to focus on forfeiture rather than crime prevention.
The perverse incentives of profit-oriented civil forfeiture law are
exemplified in the 1996 scandal in Paducah, Ky., where $66,000 was
discovered at the headquarters of the Western Area Narcotics Task Force
(WANT). Investigators found that “the task force had seized large
amounts of money and then dispensed it freely, unconstrained by audits,
reporting requirements, or the task force’s mission.”[1] With
such a large profit motive, “WANT made asset seizures a priority,
mandating expected forfeiture growth rates. But WANT met its
quotas with much more zeal than care. The police chief estimated
that 60 percent of the money found in WANT headquarters will be
returned to the owners because it was not properly seized.”[2] As
this report found, law enforcement officials are now required to
collect forfeiture data in Kentucky, but the information provided was
unreliable.
1 Blumenson, E., & Nilsen, E. (1998). Policing for
profit: The drug war’s hidden economic agenda. University of
Chicago Law Review, 65(1), 35-114.
2 Id.
In Louisiana, protection against wrongful forfeiture of
assets by police is inadequate. The state may forfeit your
property by showing by a preponderance of evidence that the property is
related to a crime and thus forfeitable. A property owner must
then show that he is innocent—that he did not know and could not have
reasonably known of the conduct or that he acted reasonably to prevent
the conduct giving rise to the forfeiture.
Law enforcement is entitled to 80 percent of the value of property they
seize in civil forfeiture actions. Incredibly, the remaining 20
percent flows to the criminal court fund. This would seem to
blatantly violate the due process clause of the U.S.
Constitution. In Tumey v. Ohio,[1] the U.S. Supreme Court
struck down a statutory scheme where a mayor, also sitting as a judge,
received a share of the proceeds collected in court.
Moreover, Louisiana officials are required to collect data on the use
of forfeiture but did not respond to a request for that information.
Minnesota law provides only slight protection for property
owners against wrongful forfeitures, as its poor law grade of D
shows. The state’s somewhat higher final grade reflects limited
use of equitable sharing to date (an evasion grade of B).
Although state statutes require that the government must show by clear
and convincing evidence that the property is connected to drug
trafficking and thus forfeitable, this burden is often easily
met. This is because, in practice, few cases are tried.
When they are, the owner is presumed guilty, bearing the burden of
showing that he is an innocent owner.[1] Law enforcement also
receives as much as 90 percent of the value of forfeited property,[2]
thus providing a profit incentive to law enforcement to focus on civil
forfeitures instead of other law enforcement duties.
Nevertheless, as the numbers below indicate, Minnesota law enforcement
has used forfeiture relatively modestly in recent years.
However, this changed in 2009. Then, the consequences of
Minnesota’s lax forfeiture laws were on full display with a scandal
involving the state’s Metro Gang Strike Force, accused of using its
forfeiture power to improperly seize property. In some instances,
officers have been alleged to keep the property for their own personal
use.[3]
2 Specifically, 70 percent of the proceeds from common forfeitures go to the law enforcement agency, 20 percent go to the office of the prosecutor, and 10 percent go to the general governmental fund. Minn. Stat. § 609.5315.
3 Lore, M. (2009, September 18). Criminal defense attorneys seek more protections in forfeiture cases. Retrieved September 25, 2009, from http://www.minnlawyer.com/article.cfm/2009/09/21/Criminal-defense-attorneys-seek-more-protections-in-forfeiture-cases.
Mississippi provides minimal protections for property owners
from civil forfeiture abuse. The state only needs to prove by a
preponderance of the evidence that the property is related to a crime
and thus forfeitable, a standard lower than the beyond a reasonable
doubt required for a criminal conviction. Moreover, the burden is
on the property owner to prove his innocence, effectively making him
guilty until proven innocent. Law enforcement collects 80 percent
of the proceeds from any seizures, thus ensuring a profit motive for
law enforcement to pursue forfeitures. There is no legal
requirement that law enforcement collect or report data on forfeiture
use or proceeds.
Some law enforcement agencies in Mississippi seem to have become
reliant on such funds to operate. The Hattiesburg Police
Department, for example, took in around $1.4 million over the past six
years.[1] Hattiesburg City Council President Kim Bradley admits
that “forfeiture funds are a tremendous help, especially with the
recent state budget cuts.” In the current recession, law
enforcement could feel increased pressure to bring in forfeiture
proceeds to make up for declining state revenue.
MO’s Asset Forfeiture Reform Bill Closes $32 Million Loophole That Let Police Divert Education Funds
Thursday, May 17, 2001
ST. LOUIS -- A measure to reform Missouri's Civil Asset Forfeiture Act (CAFA) to ensure that police departments deposit seized assets into a public education fund, as required by the Missouri Constitution, will be signed into law today by Governor Bob Holden in Jefferson City. The American Civil Liberties Union, which has criticized asset forfeiture laws as a “license to steal,” called passage of the reform measure “a victory for all Missourians.” "In the end, this law will provide funding for education and protect citizens from having their property taken from them for improper reasons," said ACLU of Eastern Missouri Executive Director Matt LeMieux. “It is astounding that such a law was needed. The fact that seizure had to be defined in the law to make some police departments comply is disgraceful.”
Nebraska has a very high standard—beyond a reasonable
doubt—to forfeit property. However, once the state establishes
that the property is subject to forfeiture, the burden shifts to the
property owner to establish that he is an innocent owner. In
Nebraska, law enforcement receives 75 percent of forfeiture proceeds.
Given these limitations, Nebraska law enforcement only took in about
$600,000 in total forfeitures from 2001 to 2002. But Nebraska
agencies take advantage of equitable sharing arrangements. For
example, an out-of-state driver crossing Nebraska was stopped by law
enforcement, and police found a small amount of marijuana but later
dropped the drug charges. The police took a suitcase with more
than $40,000 in it and turned it over to a federal agent. The
Nebraska Supreme Court found the state courts had no jurisdiction over
the money after the federal agents took possession, even though the
initial seizure was conducted by state agents and any eventual receipts
would be equitably shared with local law enforcement.[1]
Nevada forfeiture law provides paltry protection for property owners from wrongful forfeitures. The government may seize your property and keep it upon a showing of clear and convincing evidence, a higher standard than many states but still lower than the criminal standard of beyond a reasonable doubt. But the burden falls on you to prove that you are an innocent owner by showing that the act giving rise to the forfeiture was done without your knowledge, consent or willful blindness. Further, law enforcement keeps 100 percent of the revenue raised from the sale of forfeited property. Additionally, the revenue must be spent within the year, because any excess more than $100,000 in a forfeiture account is given to local schools. This provision creates an incentive to rely on new forfeitures each year.[1] Nevada law enforcement officials are supposed to report on forfeiture, but they did not respond to requests for information.
New Jersey civil forfeiture laws offer scant protection to
property owners. The government only needs to show by a
preponderance of the evidence that the seized property is related to
criminal activity. Once shown, the owner bears the burden of
proving that the property was not forfeitable, making him guilty until
proven innocent. The property owner must show that he was not
aware of the criminal activity, was not involved with the criminal
activity and took all reasonable steps to prevent the criminal
activity. Law enforcement keeps 100 percent of the funds
forfeited, creating an incentive to pursue forfeiture over other law
enforcement efforts. Moreover, New Jersey officials are not
required to track and report forfeitures and proceeds.
A New Jersey Superior Court judge ruled that the forfeiture regime
violated constitutional due process because of the profit incentive
imbedded in it.[1] Unfortunately, the appellate division
overruled the district judge and reinstated the incentive
provision.[2]
North Dakota provides better protections for property owners against civil forfeiture abuse than many states. To forfeit property, the government only needs to demonstrate that there is probable cause to bring the forfeiture action and establish, by a preponderance of the evidence, that the property is related to criminal activity. The burden is on the property owner to prove his innocence and establish that the property is not subject to forfeiture, effectively making owners guilty until proven innocent. But the state does offer some important protections. Under North Dakota law, residences and other real estate are not subject to forfeiture if they are co-owned by someone who has not been convicted of the underlying criminal offense.[1] Additionally, none of the proceeds from civil forfeiture flow to law enforcement in North Dakota.
Ohio’s protections against civil forfeiture abuse are mixed. In forfeiture proceedings, the government must prove the property is related to a crime and thus subject to forfeiture by clear and convincing evidence, a higher standard than most states but still less than the beyond a reasonable doubt standard required for a criminal conviction.[1] A property owner who wishes to argue his innocence has the burden of doing so.[2] But most importantly, none of the proceeds from civil forfeiture go to law enforcement. Unfortunately for Ohio property owners, though, even though state law is rather protective, law enforcement officials participate extensively in equitable sharing, receiving more than $80 million from 2000 to2008.
2 O. R.C. § 2981.09(A).
Pennsylvania has terrible civil forfeiture laws. The
government can civilly forfeit property by a preponderance of the
evidence showing that the property is related to a crime and subject to
forfeiture, a standard significantly lower than the beyond a reasonable
doubt standard required for a criminal conviction. And property
owners, not the government, bear the burden of proof in innocent owner
claims, making property owners effectively guilty until proven
innocent. Worse still, all of the money seized by law enforcement
agencies and forfeited ultimately makes its way back into their
hands. The money is first distributed to the district attorney
and state Attorney General, and, under the law, they must use it for
enforcement of drug laws. Pennsylvania law enforcement officials
take advantage of the commonwealth’s broad forfeiture laws. In
just a three-year period (2000-2002), more than $20.2 million in
currency, vehicles, real estate and other property was forfeited.
A 1992 case illustrates the lengths to which Pennsylvania law
enforcement is willing to go to seize and forfeit citizens’
property. Mattia and Marjorie Lonardo owned Shorty’s
Café in a “drug infested area” of Allentown, Pa.[1] Aware
that their café was being used for drug sales, they took
significant steps to fight back. According to the appellate
court:
Mr. Lonardo made it known to his patrons that he would notify the
police if he saw or suspected the possession of drugs[.] On his own
initiative, Mr. Lonardo reported illegal activities to the police at
least seven times, and police offers admitted at hearing that at least
two raids were initiated by Mr. Londardo’s reports. At times Mr.
Lonardo called the police anonymously in fear of his life, instructed
his employees to call the police whenever they saw patrons with drugs
and ordered patrons to leave the bar when they were observed with
drugs. Also, he identified a suspect and cooperated with police
searches at the raids, discussed drugs and loitering problems with the
police captain and followed his instruction by posting signs on all the
windows. Mr. Lonardo received threats against himself and family
and was injured when glass was thrown at him because he refused to
acquiesce in drug activities at the cage. He also sustained
damages to the property due to this policy toward patrons dealing or
possessing drugs.[2]
The police seized Mr. Lonardo’s café, and a trial court ordered it forfeited.[3] The Lonardos were not themselves charged with any violation of the Pennsylvania Controlled Substances Act. Nonetheless, the trial court concluded—after the testimony of 24 police officers—that the property was used in drug-related activity and the Lonardos did not “reasonably disclaim . . . [“lack of knowledge of the drug related activity”].”[4] On appeal, the state defended the holding—arguing that property could be seized if the owner had knowledge of drug activity, even if the owner did not consent to it.[5] Fortunately, the appellate court overturned the trial court, concluding that the Lonardos “did all that could reasonably be expected of them to prevent the illegal use of their property[.]”[6]
1 Commonwealth of Pennsylvania v. Gordon Street,
607
A.2d 839, 840-841 (Pa. 2 Commw. Ct. 1992).
2 Id. at 846.
3 Id. at 841.
4 Ibid.
5 Id. at 843.
6 Id. at 846
February 2, 2003To protect your right to own property, e-mail ajgaunt@xmission.com
For months, the property forfeiture lobby has been working on their de facto repeal of the substantive innocent owner protections contained in Initiative B. They now have formally titled and numbered their bill. It is SB 31, Property Forfeiture Amendments, by Senator John Valentine.
The content of the bill is still hidden from official, public view. Even though the Law Enforcement and Criminal Justice Interim Committee approved the bill 12-1 on 11/20/02 in a "public hearing", its proponents continue to hide their work. Do they believe the public would be concerned should they discover the details of the legislation?
Fortunately, a scanned copy of an earlier draft of the bill is available for your review.
http://www.xmission.com/~ajgaunt/forfeiture/Bill.pdf
I would encourage you to sign up for updates on SB 31 (e-mailed automatically by the state). You may do this at the following link.
http://www.le.state.ut.us/~2003/htmdoc/sbillhtm/sb0031.htm
Typically this type of legislation moves very quickly and with little or no warning. The process has begun. Be prepared! Contact your state senator and representative before it is too late. Tell them it is wrong to hide the de facto repeal of Initiative B from the public. Tell them to vote NO on SB 31!
Property rights supporters,
The confiscation lobby has redrafted the bill attacking private property protections in Utah law. As with the previous bill, it has not been disclosed on the Legislature's web page. I will be acquiring a copy tomorrow, and will post a link to it once it has been scanned.
In addition, the state auditor has released another letter, detailing the 154 forfeiture cases for which there has been no public accounting. I believe you will find the information is damaging to the confiscators, and reemphasizes the importance of opposing their attack. I will also post this, so check your e-mail on Friday and during the weekend.
In perusing the State Auditor's web page, I found the following audit that was performed on the Davis Metro Narcotics Strike Force. It was exactly the type of problems noted in this audit that led to widespread support for Initiative B. As the attack on forfeiture reform unfolds during the current legislative session, and as the private property confiscation lobby proclaims their respect for your rights, keep in mind the horrific problems that unrestricted forfeiture power causes.
http://www.sao.state.ut.us/reports/00-629.pdfTo receive alerts regarding the forfeiture lobby's and legislature's attack on your right to own property, e-mail me at: ajgaunt@xmission.com
Arnold Gaunt
Washington’s civil forfeiture laws do not adequately
protect property owners. Once the government seizes property, it
must give notice to the owner of the seizure. If the owner fails
to respond, the property, unless it is real property, is automatically
forfeited based only on the government’s allegation of probable cause
to seize the property for forfeiture. If the owner does respond
and contests the forfeiture, the government then must establish that
the property is related to a crime and thus subject to forfeiture by a
mere showing of preponderance of the evidence, a standard lower than
the beyond a reasonable doubt standard required for a criminal
conviction. And property owners in forfeiture proceedings are
effectively guilty until proven innocent, bearing the burden of proof
for innocent owner claims. Ultimately, all of the money collected
through civil forfeiture flows to law enforcement: Ninety percent
is retained by the seizing agency to improve drug enforcement activity
while the remainder goes to a “violence reduction and drug enforcement
account.”
Disturbingly, a 2001 article in the Seattle Post-Intelligencer reported
that “one out of five people whose assets were seized [in one county in
the state] were never charged with a crime.” Major reform efforts
in Washington have had mixed success. The legislature did adopt
one measure to shift the burden of proof to the government in innocent
owner proceedings. But in 2002, an initiative that would have
placed stronger limits on forfeiture failed to garner the necessary
signatures to earn consideration by the state legislature. It
would have eliminated forfeiture without a criminal conviction, as well
as law enforcement’s financial incentives to engage in the
practice. Naturally, the initiative “drew heated opposition from
law enforcement,” who insisted it would “choke off millions of dollars
raised annually.”
1 Skolnik, S. (2001, December 13). Critics target
drug raid seizures. Seattle Post-Intelligencer, p. A1.
2 Skolnik, S. (2002, January 3). Initiative to limit police seizure
power falls short. Seattle Post-Intelligencer, p. B2.
3 Ibid.
4 Ibid.
5 Ibid