PIRATE POLICE

Legislators Try to Reign-in Asset Forfeiture Abuses by Police

A Mexican worker, employed legally in Alaska, stops at DIA on his way home
to Mexico with $15,000 in perfectly legal cash in his pocket. He pays cash
for the ticket for the last leg of his journey home. Police, tipped off to
the cash purchase by airline employees, search the man and find his money.
They discover no drugs and no evidence of a crime, but they take his money
anyway. After he hires an attorney and fights them, he gets 40 percent of
it back.

A woman loans her car to her cousin and his friend. The two smoke a joint
and are eventually pulled over by police. Cops find pot seeds and rolling
papers in the car, together with more than $15,000 hidden in the steering
column, and seize both the cash and the vehicle. Its owner was not arrested
and wasn't even present. The two pot-smokers walk on a misdemeanor.

A man disabled by a construction accident grows a few marijuana plants
because the pot controls his pain and seizures without the side effects of
prescription narcotics and anti-seizure drugs. Police assess the value of
his home, which he paid for with settlement money from his accident, before
deciding to move against him. After determining there is substantial money
tied up in the home, they bust the man and begin forfeiture proceedings
against the house.

Although state and federal law allows law-enforcement agencies to seize
personal property when that property has been involved in the commission of
a felony, critics say some agencies are little better than pirates, seizing
property under doubtful circumstances in order to funnel money into their
coffers.

A bill introduced into the state Legislature this week attempts to reform
what observers say is a system prone to abuses. Proponents of House Bill
1404, which would limit the power of law enforcement to take property, say
cases like those mentioned above-each of which happened in Colorado during
the past decade-are examples of why the state's laws need to change.

Sponsored by Rep. Shawn Mitchell, R-Broomfield, and Sen. Bill Theibaut,
D-Pueblo, the bill marks the third attempt since 1992 to change the state's
asset forfeiture laws and mirrors efforts in other states, including
successful voter initiatives in Oregon and Utah and legislation in Missouri
and New Mexico. It is being supported by an odd coalition of lawmakers,
including religious-right Republicans, liberal Democrats, left-leaning
activists and Libertarians.

Not Guilty? Who Cares?

"Before the government robs you at gunpoint, they should at least prove
you've committed a crime," says David Lane, the Denver attorney who
represented the Mexican worker. "I think law enforcement has abused this
for years, and they have now stolen one too many Cadillacs from one too
many white men whose sons left a joint in the ashtray, and people are now
reacting to this."

Intended to turn the ill-gotten gains of drug kingpins toward the public
good, asset forfeiture laws are frequently abused, say proponents of HB
1404. If passed, the bill will change Colorado law in three ways:

* It will require a criminal conviction before forfeiture proceedings can
begin. * It places the burden of proof on the state and requires "clear and
convincing" evidence of criminal activity. * It channels money from seized
assets away from law enforcement and towards drug-treatment programs. Law
enforcement will keep only 25 percent and will face much tougher reporting
standards in accounting for that money.

Currently, police can take a person's property even if the person is never
arrested, charged with or convicted of a crime.

Debatable circumstances and slim evidence-such as carrying a large amount
of cash, unknowingly renting an apartment to an alleged drug user, or
having money singled out by drug-sniffing dogs-have resulted in people
losing cell phones, money, homes, cars, boats and other property. People
who were later found innocent have found it impossible to win their
property back.

Once proceedings being, it's an uphill battle for the defendant. Because
forfeiture proceedings take place in civil court, not criminal court, the
defendant has no right to an attorney. People without the resources to hire
an attorney on their own often end up in the courtroom without any kind of
legal representation.

In addition, it's up to the defendant to prove his or her innocence, not
the state to prove guilt.

"It's like the Red Queen's justice in Alice in Wonderland-sentence first,
verdict afterwards," says attorney David Kopel of the Independence
Institute, a free-market think tank in Golden.

Unlike criminal proceedings, which require the state to prove beyond a
reasonable doubt that a crime was committed, civil proceedings require only
that the state prove a "preponderance of evidence" in order to take the
defendant's property.

"It's a meaningless standard," Lane says. "The issue is what's the burden
of proof the government is going to have. If the drug doggy barked at the
money, that's been enough."

Lane points to a study of currency in Florida in which 99 percent of bills
in circulation were found to be contaminated with cocaine residue. Once
money has been exposed to drugs, it spreads that scent to all money it
comes into contact with in wallets, cash registers and banks-long after the
cash has circulated to perfectly innocent people.

"Money has been mixed up with drugs so much that it doesn't mean (the
defendant is) involved in drugs," says San Miguel County Sheriff Bill
Masters, who supports the bill. "It just means the money has been in
proximity to drugs." That proximity, even if it happened long ago and far
away from the present owner, is frequently enough to get the cash seized.

Rep. Alice Madden, D-Boulder, says she supports HB 1404 and has first-hand
experience of how ruthless and unfair forfeiture proceedings can be. An
attorney, she once represented a man who lost his pawn shop for making
small, accidental errors, like transposing digits in a phone number, on
forms for gun sales. The city, it turned out, had wanted to remodel that
block and worked hard to make the forfeiture stick.

Christie Donner, coordinator for the Colorado Criminal Justice Reform
Coalition, said her organization is supporting the bill because its members
have a lot of concerns about the state's asset forfeiture laws.

"Current forfeiture laws clearly fail to provide due process protections
for property owners," Donner says. "We have documented cases where people
have lost their cash, cars and homes without ever having been convicted of
a crime. We have documented cases of property owners who have lost property
because of the alleged actions of their tenants."

She says the reforms included in HB 1404 are widely supported by the public
and points to the results of a poll conducted in September 2001, which show
83 percent of Colorado voters favor requiring a conviction before property
can be seized. The poll also shows 78 percent of voters favor putting money
from seized assets toward drug treatment programs rather than law enforcement.

"We anticipate significant opposition from the law enforcement community,"
Donner says. "This has been an unfettered source of income for them for
which there has been no accountability, so any effort to redirect proceeds
or hold them accountable are going to be opposed."

Other People's Money

For law enforcement, asset forfeiture might not be the goose that laid the
golden egg, but it's close. Cops have spent millions of dollars in seized
assets on everything from weapons and body armor to furniture and
remodeling to Christmas parties and pizza.

"It's turned a lot of cops into privateers," says former judge and local
attorney Dennis Blewitt. "They're augmenting their budget."

Profits from confiscated property currently go to the agency that seized
the property, creating what critics call an incentive for law enforcement
to go after people's assets on the slimmest of pretexts.

"It's a terrible conflict of interest," Kopel says. "You want law
enforcement to make their best possible decision when enforcing the law,
not to have a financial incentive to do things one way or another."

Kopel cites studies which show a shift in law enforcement priorities since
asset forfeiture became an available tool. Police are now less likely to
pursue crimes against property and are more likely to pursue drug cases,
which are responsible for a large percentage of seizures.

"It's a terrible shift in law enforcement away from being the protector to
being the taker," Kopel says.

Kopel, son of former Rep. Jerry Kopel, helped his father in 1992 when he
sponsored a similar bill. Opposition from law enforcement was formidable,
he says.

"I've never seen so many district attorneys in one place," he recalls.
"They all came out... Every time you're talking about any reform that's
going to take money out of anyone's pocket in government, you get
predictions of the end of the world." But even some law enforcement
officials say HB 1404 is necessary.

"It's really important that we take the seizure funds away from the seizing
agency," Masters says.

"There's too much chance of law enforcement being directed by the funding
board to seize more property. To a degree, funding boards will look upon
law enforcement efforts as a funding mechanism- as a revenue-generating arm
of our government. That can be part of the abuse."

Just as some cities view parking and traffic tickets as a source of income
and encourage their police force to issue as many as possible, funding
boards might expect police to confiscate everything they can to pay for
"new police toys," he says.

Masters admits that his office paid for its new radio communication system
with money from seized assets. "It's really helped us out," he says.

Flouting State Law

The amount of money state agencies receive from forfeitures is hard to
determine. Documents from the state Department of Local Affairs show that
law enforcement agencies were sitting on a combined end balance of almost
$2 million in seized asset money at the end of 2000. The figure is far from
complete, however. Despite state law, which requires all agencies that
receive money from seized assets to report how much they received and how
the money was spent, only 19 agencies actually filed reports. Agencies
required to file reports include city police departments, county sheriff's
offices, district attorney's offices, and special law-enforcement units
like drug task forces. Since the reporting law was passed in 1992, only six
agencies have consistently filed reports: the Englewood police, Lakewood
police, Northglenn police, Arvada police, Aspen police, and the Delta
County sheriff.

According to records from the Office of Local Affairs, the Boulder County
Drug Task Force, created in 1997, filed a report in 2000 and 2001 only. The
City of Boulder hasn't filed a report since 1993. And the Boulder County
Sheriff's office reportedly failed to file reports in 1994, 1995 and 1999.

"Clearly, law enforcement agencies are making a mockery of the reporting
requirement," Donner says. "They're willfully non-compliant, which
justifies greater scrutiny."

City of Boulder spokeswoman Jana Peterson said the city has relinquished
its seizure functions to the Boulder County Drug Task Force. All money the
city receives from seized assets goes toward the salaries of city police
officers assigned to the drug task force, she said. For those reasons, the
task force files reports on city's behalf, she said. However, Peterson said
the city would look into the law to determine whether it needed to be
filing its own reports in the future.

Boulder County Sheriff George Epp said it was difficult for him to comment
on HB 1404 without having seen it. Still, Epp said he was concerned by
allegations that law enforcement is not compliant with state reporting
laws. He said his office has filed reports regularly and believes it is
important to comply with the law.

Epp definitely has concerns about asset forfeiture. "I think it can be a
useful tool, but I think it's something that can be easily abused," he says.

Sheriff Masters says that at times, seizing assets can seem more like a
shakedown than law enforcement. In one instance, the San Miguel Sheriff's
office arrested a coke dealer who lived in an expensive house in a posh
neighborhood. Then the district attorney began to cut a deal.

"We said, 'How much are you willing to pay us to stop this forfeiture
action?' And they ended up paying us $150,000 to stop the forfeiture
action. It's like, 'How much are you willing to pay us to stop the action
against you?' It seems in my mind a poor tactic, but that's what the DA's
office basically said to that guy," Masters says.

Masters knows many of his colleagues will likely disagree with him.

"I hope the law enforcement community looks at it carefully and understands
there's a feeling out here among the public that we are misusing the money,
that we are acting in a way like pirates or even the criminals that we are
trying to protect them against by being so greedy, so money oriented."

Loopholes and End-Runs

Donner says HB 1404 is moderate compared to measures in other states, some
of which took all seizure money away from law enforcement. Oregon gave the
money to drug-treatment programs, while Utah and Missouri earmarked theirs
for education.

"We would hope that law enforcement would appreciate their role in
upholding the law and the Constitution, which is what this bill intends to
do," she says. "This bill acknowledges that law enforcement plays an
important role but it's not the exclusive role in dealing with drugs and
crime."

But passing HB 1404 will likely only be part of the struggle, Donner says.
In other states where forfeiture reforms have been enacted, law enforcement
has tried to find ways around the new laws.

In Oregon, law enforcement responded to a successful voter initiative by
going to court. When they lost the court challenge, law enforcement
agencies supported a bill that upheld most of the voters' changes but
funneled 40 percent of seizure funds back into law enforcement coffers.

In Missouri, law enforcement has gotten around new asset forfeiture laws by
handing forfeiture cases over to federal agents, who are not bound by state
laws. The federal agents execute the seizures, then share the funds with
the agencies that gave them the case.

Donner says HB 1404 carefully defines what constitutes a state case and a
federal case in order to make that sort of "end-run" impossible. If the
bill doesn't pass, Donner's group is prepared to put the issue on the 2004
ballot for voters to decide.

The bill's success probably depends on how much grassroots support there is
for the bill from voters. Kopel says it's important for citizens concerned
about civil liberties to call their state lawmakers and ask them to stand
strong in support of the bill.

"Many lawmakers that had supported my father's bill got their arms twisted
very, very hard by the DAs and reversed their positions," Kopel said.

While there will likely be opposition, Kopel says he thinks HB 1404 has a
good chance of succeeding.

"This is not some kind of far-out thing," he says. "This is really about
core American values. You should be punished unless you're guilty."