BILL TO TARGET FORFEITURE LAW

Bipartisan Colo. Measure A Response To Complaints About Police Actions

Tuesday, March 19, 2002 - Cash, cars, boats, firearms - even a hot tub -
are being confiscated from citizens before they're ever charged with a crime.

And few people know where the money or property is going because most law
enforcement agencies aren't reporting it. Police have used the cash to pay
for everything from pizzas to Christmas parties and use the cars for
undercover work.

Two lawyer-lawmakers are forging an unlikely alliance to limit the power of
law enforcement to snatch property thought to be connected to illegal
activity before criminal charges have been filed.

Democratic Sen. Bill Thiebaut and Republican Rep. Shawn Mitchell are
introducing legislation this week after years of complaints of police abuse
in Colorado and two years after Congress passed a law limiting the federal
government's forfeiture power.

The federal law set in motion a national movement to revamp state laws, and
Colorado has joined a handful of states at the forefront.

"It's inappropriate for law enforcement to seize and liquidate people's
property before they are convicted of a crime ," said Thiebaut, the Senate
majority leader from Pueblo. "If you're an innocent person, you shouldn't
have your property taken away, and if it is taken away, you should have due
process, even if you're guilty."

Current law makes it "much easier for the government to seize property than
to convict you of a crime," said Mitchell, a Broomfield lawmaker. "I have
the firm belief it's a dangerous power subject to abuse, and it needs to be
restrained." Thiebaut and Mitchell also want to restrict how the property
or proceeds are used because often the property is never returned to the
owner, even if the person is acquitted.

Some police have used the seized cars, cellphones, jewelry and guns in
undercover work or sold the property and used the proceeds for pizzas,
parties and, in the case of one police department, an aquarium. A
confiscated hot tub allegedly ended up in the home of a sheriff, according
to one lawmaker.

But state regulators have no idea where most of the property or proceeds
are going because the majority of police and sheriff's departments are
ignoring a 1992 requirement to file an annual report with the state's
Department of Local Affairs.

A review of every filing since 1992 found that only six law enforcement
agencies are in compliance, said Christie Donner of the Colorado Criminal
Justice Reform Coalition. That's out of potentially 100 or more agencies
that might have received forfeited property or proceeds. Some sheriff's
departments haven't filed a report in a decade. Yet the value of the
property seized over the years in Colorado, Donner said, is probably "in
the millions easily," leaving many agencies with large, unregulated slush
funds.

Civil forfeiture began as a tool for law enforcement to fight the war on
drugs. Seizing planes, boats, cars, houses and other assets acquired with
drug money was a means to cripple the drug trade.

But the scope of forfeiture mushroomed. And now, under Colorado's
public-nuisance law, any property used for, or proceeds from, any felony
can be confiscated.

The bill to be introduced proposes drastic changes in Colorado law,
specifying that the property and proceeds from civil forfeitures go to
treatment programs, among other places, and to innocent co-owners, such as
family members.

In recent years, New Mexico, Utah, Oregon, Nevada and Missouri have
revamped their statutes to shift the burden of proof to the government and
raise the legal standard before a conviction.

In Utah and Oregon, voters passed constitutional amendments, and people on
the leading edge of Colorado's movement, including former state Rep. Jerry
Kopel, say they will put the measure before voters if the legislature
doesn't act.

The laws targeted for reform are Colorado's nuisance and contraband
forfeiture laws, which allow prosecutors to seize property at any time,
before or after an arrest or charge, and keep it for "law enforcement
purposes."

The property owner is not automatically entitled to recover the property
even if ultimately acquitted because the confiscation occurs under a civil
procedure separate from the criminal case.

The civil action can be too costly to undo for most people. Sometimes the
property has been auctioned by the time the criminal case is over.

The proposed legislation would shift the burden of proof to the government
and raise the legal standard for seizures before a conviction. It would
require that, in most cases, a property owner be convicted of a crime prior
to forfeiture. Police and sheriffs historically have opposed changes to the
law, arguing that it's an important weapon in fighting crime.

A 2000 report on Denver seizures shows that a 1990 Lincoln limousine, a
2000 Firebird and numerous other seized cars, cellphones, jewelry, rare
coins and firearms, specifically, a .22-caliber rifle, a .50- caliber rifle
and a Winchester rifle, were listed "for use in undercover operations &
training."

Denver police Sgt. Tony Lombard declined to comment.

Denver District Attorney Bill Ritter, whose office, along with the police
and city budget officials, decide how to deal with the seized goods, said
that the policy of his office is to destroy confiscated firearms and that
the guns should have been thrown out. Ritter said he would check into it.

Ritter also declined to comment on the proposed legislation until he sees
the bill.

"We understand this is an important area for there to be public discussion
about," Ritter said. "As elected DAs, we take seriously our responsibility
to scrutinize our forfeiture actions and make the process a fair process."

Kopel cited a 1990 case in which a southern Colorado sheriff tried to take
a house where a man had been charged with committing incest with his daughter.

"Not only had the girl been violated, but the sheriff was going to make her
homeless," Kopel said.

Citizens were so outraged, they got together and paid the sheriff the
amount he wanted in lieu of the house, Kopel said.

"Colorado's forfeiture law has been used in a very, very egregious
fashion," said defense attorney Gary Lozow. "It's a format for money for
the state."

Lozow said that while the purpose of the law is to stop crime by taking
away the "vehicle" for committing the crime, often "it's egregiously
overreaching" allowing law enforcement to take away entire businesses.