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In Minnesota, conservatives and progressives score victory over abusive forfeiture laws

By   /   August 7, 2014  /   News  /   No Comments

By Eric Boehm | Watchdog.org

MINNEAPOLIS – In 2007, police officers working on an anti-gang strike force in the Twin Cities’ metro area pulled over a man driving a motorcycle, allegedly because he was speeding.

A subsequent search turned up a small amount of marijuana and $1,306 in cash. The police seized the drugs, the money and the man’s motorcycle, but no charges were filed and the man was never even arrested. The man was never alleged to have gang ties.

SEIZED: Police are allowed to seize property, including cash, that they believe may have been purchased with drug money or is illegal for other reasons. In Minnesota, they will have to get a criminal conviction first.

SEIZED: Police are allowed to seize property, including cash, that they believe may have been purchased with drug money or is illegal for other reasons. In Minnesota, they will have to get a criminal conviction first. (Source: Shutterstock)

Around the same time, officers from the same anti-gang strike force stopped a car for alleged “suspicious activity,” and seized $2,400 in cash. No drugs were found, and no charges were ever filed against the people in the car.

Those brash, strong-arm tactics of the Metro Gang Strike Force eventually caught up with the officers, who were using Minnesota’s civil asset forfeiture laws to seize property – including cars, boats, RVs, jewelry, televisions, computer equipment and cash – from suspects, often without charging the individuals with a crime, and frequently in cases where there was insufficient evidence to get a conviction.

Thanks in part to those dark and abusive days, the state is now a leader in reforming civil asset forfeiture laws and cracking down on police departments that use the laws to pad their bottom lines and line officers’ pockets.

As of August 1, a criminal conviction is required before any property or assets can be seized by police through a civil procedure, thanks to a new law that cleared the state legislature in near-unanimous fashion and was signed by Gov. Mark Dayton on May 6.

Minnesota is just the second state in the country – joining North Carolina, which has even stricter rules – to put that important limitation on when cops can seize suspects’ property.

DAYTON: Gov. Mark Dayton signed the reforms on May 6, but they only took effect last week.

DAYTON: Gov. Mark Dayton signed the reforms on May 6, but they only took effect last week. (Source: governor’s office)

The reforms have their roots in the scandalous activities of the Metro Gang Strike Force, which was eventually the subject of a two-year investigation by the state auditor general. Another investigation by a special panel created by the state legislature shined light on dozens of questionable incidents and huge amounts of property seized by the strike force.

The reports found that the team used the seizures to boost the department’s revenue by auctioning many of the seized items. But other property – including some cars and lots of the cash – simply disappeared and couldn’t be accounted for by the state auditors and special investigators.

“They would stop people for whatever reason, and then take their property, claiming that they were notorious drug dealers and that these goods were the ill-gotten gains of criminal enterprises,” said Chuck Samuelson, executive director of the Minnesota ACLU.

In response, the state legislature enacted stricter reporting laws in 2010 to require police departments to track how often they were seizing property from suspected criminals. The numbers were staggering.

In 2013 alone, there were more than 7,000 seizures – an average of about 20 per day – in Minnesota, totaling more than $8.8 million. That doesn’t even include the number of civil asset forfeitures enacted by federal law enforcement agencies like the DEA and FBI, which will still be able to seize property in Minnesota despite the new state law.

PROTECTING AND SELF-SERVING: The Metro Gang Strike Force was routinely seizing property and cash without even bothering to file charges against suspects. Most of those assets helped fund their operations, but 13 vehicles and thousands of dollars in cash simply went missing before state authorities started looking into their activities.

PROTECTING AND SELF-SERVING: The Metro Gang Strike Force was routinely seizing property and cash without even bothering to file charges against suspects. Most of those assets helped fund their operations, but 13 vehicles and thousands of dollars in cash simply went missing before state authorities started looking into their activities. (Source: Shutterstock)

Another startling fact: the average seizure in the state involves law enforcement taking only $1,200 in property or cash.

That means the law is not being used to go after drug kingpins or gangs moving high volumes of stolen or illegal goods, Samuelson said. If they were, the amount of cash seized would likely be much higher.

Once property has been seized, the only way to get it back is to go through a civil court procedure that creates three huge hurdles for the original property-owner.

“When people are found guilty of a crime, I think it’s a very legitimate tool. But when you’re forced to enter into civil court after you’ve been acquitted, it’s problematic,” said Lee McGrath, legislative counsel for the Institute for Justice, a libertarian law firm that lobbied for the Minnesota reforms.

First, the original owners have to prove a negative – something that is virtually impossible to do in a legal system. They must show in court that their property was not the result of illegal activity or purchased with drug money.

Second, anything said in the civil court proceedings could be used in a criminal court later on, and there is no Fifth Amendment protection against self-incrimination in civil court. Anyone who tried to go through the civil court to regain their property could find themselves on the receiving end of a criminal prosecution in the near future.

Finally, there are no public defenders for civil court, so anyone who can’t afford to hire a lawyer is just out of luck, said Samuelson.

The expense of hiring a lawyer and going through the legal process deters many people from even trying. It’s irrational to spend $3,000 on legal fees for a civil trial if you’re trying to recover $1,000 in property, McGrath said. So, usually, the police can take small amounts of property and people will simply cut their losses.

THOMPSON: State Sen. Dave Thompson, R-Dakota, says civil asset forfeiture laws unfairly stack the deck against low and middle income people who can't affords to battle the claims in court.

THOMPSON: State Sen. Dave Thompson, R-Dakota, says civil asset forfeiture laws unfairly stack the deck against low and middle income people who can’t affords to battle the claims in court. (Source: Minnesota Senate)

“We think that you get poor people who in essence get railroaded,” he said.

That was the main reason state Sen. Dave Thompson, R-Dakota, introduced the bill to require a criminal conviction before a seizure.

“For people who are middle class or lower-middle class, that is their vehicle and that’s their only means of transportation to and from work,” Thompson told the MinnPost in May, as the bill was winding its way to Dayton’s desk. “It’s not thousands of dollars like more complicated legal proceedings can be, but it still can be enough to keep some people from getting their property back, even though they were never charged with a crime.”

Most of his colleagues agreed. The bill enjoyed unanimous support from all 120 members of the state House and passed the state Senate with a 55-5 vote.

With the law now in effect here, reformers are hoping Minnesota can be an example for other states to follow. Already, the ACLU and IJ are joining forces in Georgia, Utah, Wyoming and elsewhere to work on similar legislation.

Law enforcement typically enjoys hefty political power in state capitols, part of a mutually beneficial relationship in which police back candidates for elected office, and those elected officials pass new laws passed to give police greater authority. Lawmakers get to look tough on crime when campaign season rolls around again.

But the civil asset forfeiture issue has united progressives and conservatives in a way that most other law enforcement issues do not – as evidenced by the overwhelming support for the new reforms in Minnesota.

“The supporting cliques that allow the police agencies to behave like they have been behaving, it’s cracking,” Stephenson said. “People are saying ‘you can’t do this, this is wrong, you need to stop this.’”

Boehm is a reporter for Watchdog.org and can be reached at [email protected] Follow @EricBoehm87 and @WatchdogOrg on Twitter for more.

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Eric Boehm is the national regulatory reporter for Watchdog.org. He lives in St. Paul, Minnesota. His work has appeared in Reason Magazine, National Review Online, The Freeman Magazine, The Philadelphia Inquirer, The Washington Examiner and Fox News. He was once featured in a BuzzFeed listicle. Follow him on Twitter @EricBoehm87 and reach him at [email protected]