Acting Chief of DOJ Asset Forfeiture Division Issues Guidance on Holder Equitable Sharing Order
On Tuesday, February 10, 2015, DOJ Asset Forfeiture and Money Laundering Section Acting Chief M. Kenndall Day issued a memo guiding agency participants in the DOJ's Asset Forfeiture Fund on the implementation of US Attorney General Eric Holder's January 16, 2015 order (effective March 1, 2015) governing use of the adoptive forfeiture process through the DOJ's Equitable Sharing program.
When it was released, Holder's order was widely misunderstood; some commentators went to far as to claim the order ended civil forfeiture. However, the Holder order is extremely limited, and the Kenndall Day memo provides some clarity as to the scope of behavior implicated:
Central to the application of the Attorney General's order is whether there was federal law enforcement oversight or participation at the time of seizure by state and local law enforcement. To ensure sufficient federal participation in all seizures that lead to federal forfeiture, an attorney from a federal agency must provide justification in writing for the federal forfeiture of an asset that is seized by a state or local law enforcement officer as a task force or joint investigation seizure, applying the factors outlined below. A prosecutor at the U.S. Attorney's Office for the district where the seizure took place (or if the seizure is part of an ongoing investigation, a prosecutor at the relevant U.S. Attorney's Office or Department litigating section) then must agree, in writing, that the forfeiture is permissible under the Attorney General's order.' This requirement extends to all types of forfeiture, including administrative. Federal prosecutors asked to provide such agreement must also consider the factors below when determining whether the seizure constitutes either a task force or joint investigation seizure.
Factors to Consider When Deciding Whether a Seizure Qualifies as a Task Force or Joint Investigation Seizure
Was the Seizure Effected by a Federal Task Force Officer? -- Is the state and local law enforcement officer who effected the seizure a task force officer on a joint federal and state task force? Is the officer deputized to enforce federal criminal law under either Title 18 or Title 21? Does the officer possess credentials issued by a federal law enforcement agency? Is the officer assigned to work on a task force full-time? Is the officer bound by the rules, regulations, and policies that otherwise govern the conduct of federal agents employed by the agency that issued the credentials to the officer? If the officer is assigned to the task force only part time or for a specific investigation, do the facts clearly demonstrate that the seizure was part of the officer's task force duties rather than a state or local law enforcement action, as described below?
Were Federal Authorities Involved Prior To and At the Moment of Seizure? -- Was the seizure made with direct, pre-seizure involvement by federal law enforcement? For example, at the time of the seizure, was the seizing officer acting under the direction of, or in real-time, hand-in-hand cooperation with, federal law enforcement? Was the seizure made as part of a preexisting federal or joint federal-state investigation in which federal agents are involved in the pursuit of federal criminal charges?
Does the Seizure Relate Primarily to State or Local Law Enforcement Action? -- Was the seizure made pursuant to a state seizure warrant without federal involvement? Is the state pursuing a criminal case under state law against the owner of the property? Did the officer seize the asset pursuant to his or her authority as a state or local law enforcement officer?
I've noted in previous commentary that the Holder order will incentivize a proliferation of federal partnerships with state and local law enforcement, as agencies seek to retain their federal asset forfeiture revenues. The Day memo only clarifies the process and best practices for the operation of those partnerships.
While M. Kenndall Day's guidance on the implementation of the Holder memo resolves some fundamental questions about the implementation of the Holder order, it is to be noted that it does not represent statutory law, nor does it offer additional protections to property owners facing asset forfeiture. Any US Attorney who does not strictly adhere to the policy would only face the discretionary sanction of the President (practically speaking, this never happens).
New Holder Policy Means Fewer Bal Harbours, More Motel Caswells
Last Friday, January 16, 2015, US Attorney General Eric Holder released an order stating that "Federal adoption of property seized by state or local law enforcement under state law is prohibited..." with some exceptions: 1) cases involving firearms, ammunition, explosives, and child pornography and 2) for cases where there is coordination or assistance from federal authorities. As I'll show below, these exceptions make Holder's policy change virtually meaningless for advocates of sensible reforms to federal asset forfeiture practices, and only affect a small number of forfeitures processed through the Equitable Sharing Program. Worse, this policy change essentially formalizes federal partnerships as a modus operandi for Equitable Sharing forfeiture revenues for state and local law enforcement, giving the federal government a slightly stronger hand to play against the authority of states to dictate the policy and practices of their own executive agencies.
How the Exceptions to the Holder Memo Swallow the Rule
It's important to realize that the first set of exceptions for "firearms, ammunition, explosives, and child pornography" is very broad. A Pew Research Center survey found in February 2013 that some 37% of American households own a firearm. And a recent investigative report from 10 News in Tampa Bay, Florida, found that Florida law enforcement agencies are using often-spurious felony accusations of child pornography to seize vehicles from victims who are never charged:
In addition to federal grant dollars used to run the ICAC stings, 10 Investigates found law enforcement agencies frequently took the vehicles from men arrested and kept them as their own – even when charges against the men were dropped.
In November, 10 Investigates reported how Florida's Contraband Forfeiture Act made it easy for agencies to seize property as their own from anyone accused of committing a felony – even if charges are ultimately never filed.
Sex stings have become especially rich sources for seizures, since almost every man arrested is accused of traveling to seduce, solicit, or entice a child to commit a sexual act…even though no real children are ever involved in the stings. However, the accusations are felonies, meaning law enforcement can seize suspect's vehicles, making it extremely difficult for them to ever get them back without paying thousands of dollars – or more - in cash to the arresting agency.
In context of these exceptions, we can predict that law enforcement agencies will increasingly look to generate accusations of illegal activity involving firearms or child pornography to sustain forfeiture revenues that state and local law enforcement have become increasingly dependent on.
The second set of exceptions to Holder's prohibition of federal adoption is very broad as well, and in fact virtually negates the direct prohibition on adoption by allowing adoptive forfeitures as long as the seizure is accomplished with federal assistance or cooperation through a joint task force, a joint investigation, or pursuant to a federal seizure warrant. First, this will have a rather small impact; as Jacob Sullum at Reason noted today:
That means adoptions, which the DOJ says represented about 3 percent of deposits, accounted for less than 14 percent of equitable sharing. In other words, something like 86 percent of the loot that state and local law enforcement agencies receive through federal forfeitures will be unaffected by Holder's new policy.
Moreover, these forfeitures are not entirely prohibited; all the Holder memo means is that the Department of Justice now requires a federal partnership to accept them. This is a very low bar to reach; every state or local task force in existence has access to a federal law enforcement agency liaison through which such partnership may be possible.
How the Holder Memo Will Drive Increasing Federalization of State and Local Law Enforcement Practices and Priorities
The Holder memo essentially formalizes that continued receipt of federal forfeiture revenues by state and local law enforcement must happen in coordination with a federal law enforcement agency. State and local law enforcement that have previously conducted their own asset seizure and forfeiture programs unilaterally and just sent forfeitures for adoption through Equitable Sharing must now develop an active federal agency partnership to facilitate continued forfeiture activity under federal law. This increasing reliance on federal law and agencies to drive asset forfeiture revenues thus corrodes the federalist checks on state sovereignty by giving state and local law enforcement incentives to ignore following state law and legislative priorities.
Two major recent scandals involving local law enforcement agencies are instructive here. Consider first the happenings in Bal Harbour, Florida, which are likely now prohibited by the Holder memo:
It puts an end to egregious abuses such as the slush fund created by police in Bal Harbour, Florida, with the proceeds of federally adopted forfeitures. The Miami Herald reported that the little town's cops raked in $19.3 million over three years, which they used for parties, trips, and fancy equipment such as "a 35-foot boat powered by three Mercury outboards" and "a mobile command truck equipped with satellite and flat-screen TVs."
It's a good thing that the Holder memo might restrict such activity. Yet, it's not much of a reform to mandate that future uses of the Equitable Sharing Program involve federal agency partnerships. In November 2012, Jacob Sullum covered the story of the Motel Caswell in Massachusetts:
Caswell, who has been running the motel since 1983, says he has no way of knowing what his customers are doing behind closed doors. He has always cooperated with the police, calling them to report suspicious activity and offering them free rooms for surveillance and sting operations.
In 2009 he got his reward: a forfeiture notice. Police had never suggested additional steps he could take to discourage crime or warned him that the motel—which supports him, his mother, his wife, their son, their daughter-in-law, and their granddaughter—could be at risk.
This cruel surprise was engineered by Vincent Kelley, a forfeiture specialist at the Drug Enforcement Administration who said he read about the Motel Caswell in a news report and found that the property, which the Caswells own free and clear, had an assessed value of $1.3 million. So Kelley approached the Tewksbury Police Department with an "equitable sharing" deal: The feds would seize the property and sell it, and the cops would get up to 80 percent of the proceeds.
Under Massachusetts law, by contrast, police would have received only half the loot, and forfeiture may have been harder. State law says a seized property has to be used not just to "facilitate" a drug crime but "in and for the business of unlawfully manufacturing, dispensing, or distributing controlled substances," which suggests a stronger connection.
Under the Holder memo, this kind of activity is not prohibited; in fact it is formalized. While we might now see fewer scandals like Bal Harbour, we will likely see more cases like the Motel Caswell, where a federal agency seeks to seize valuable property from innocent owners with the aid of local law enforcement despite federal law prohibiting such activity.
Next Steps for Forfeiture Reform
It is important to recognize that the Holder memo does NOT change federal law and is not legally enforceable in a court of law. It provides no relief to property owners facing asset forfeiture. It is simply a directive from the Attorney General that federal agencies follow a certain policy, possibly in ways that increase the risks facing property owners in the United States substantially.
AFR Research Director Scott Meiner notes that "the other part of the story that no one seems to be commenting on is that Holder did order a "comprehensive review" of the federal asset forfeiture program. Paired with lawmaker pressure, meaningful findings and maybe even reforms could come out of that review". It is essential that Congress act to provide real legislative reform of this system; a good step would be to abolish the Equitable Sharing Program entirely.
Kudos to Wyoming's Senate Judiciary Committee
Wyoming's Senate Judiciary Committee has pre-filed remarkable legislation aimed at reforming the state's asset forfeiture practices.
If adopted, Wyoming would
(1) begin requiring convictions before property could be forfeited via state laws; and
(2) prohibit all Wyoming law enforcement from accepting federal forfeiture proceeds "conditioned upon the state law enforcement agency's adoption of federal law enforcement practices and procedure"---a current eligibility requirement for receipt of federal forfeiture funds via the federal equitable sharing agreement.
Wyoming's 2015 legislative session is scheduled to begin on the 13th of January 2015.
Feds Cite 2004 Scandal in Denying North Carolina Sheriff Readmission into Equitable Sharing Forfeiture Program
Sarah Willets at the Robesonian reports:
The U.S. Department of Justice says a “strict” remediation plan is needed for the Robeson County Sheriff’s Department to again participate in the federal Asset Forfeiture Program after officer misconduct caused it to be expelled from the program 10 years ago.
“The nature, scope and duration of the Robeson County Sheriff’s Department misconduct was among the most egregious in the history of the Equitable Sharing Program,” said Peter Carr, a Justice Department spokesperson, in a statement emailed to The Robesonian. “While the officers who perpetrated this decade-long crime spree have been appropriately punished in the criminal justice system, the damage their actions did to the program is not easily undone.”
AFR Research Director Scott Meiner noted in a June 2012 roundup of law enforcement corruption and asset forfeiture abuses in North Carolina that:
"...Robeson ranked first in the state in cash received per capita as part of the DOJ’s Equitable Sharing Program. Problems ensued. Numerous deputies eventually pleaded guilty to stealing cash seized incident to traffic stops. More exotic convictions included ”conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act(RICO), conspiracy to commit money laundering, conspiracy to defraud the government, conspiracy to commit satellite piracy, conspiracy to commit kidnaping, conspiracy to distribute cocaine and use of a firearm during and in relation to a crime of violence” as part of the Department of Justice’s Operation Tarnished Badge investigation of the Robeson County Sheriff’s Department. The sheriff and 21 others (of approximately 120 employees) were convicted."
Robeson County District Attorney Johnson Britt criticized Sheriff Sealey prior to the November 2014 midterm elections, noting that:
"...attempts during the past 10 years to be reinstated have failed because Sealey has been “unwilling to comply with regulations of eligibility.”
Britt said that the Justice Department is still concerned that Sealey employs individuals implicated in Tarnished Badge but not charged; provides inadequate supervision of the Drug Enforcement Unit; and that training of department personnel is inefficient.
“I don’t think these issues have been worked out or they would be back in the program,” said Britt. “… From information shared with me, unless these concerns are addressed, the department will not be reinstated.”
According to Britt, the inability of the Sheriff’s Office to regain eligibility in the federal program has been a “management decision.”
“I believe that if a new sheriff is elected, and that individual demonstrates to the Justice Department he or she is willing to make necessary changes, then opportunity to participate in the program will be greatly enhanced and likely to occur.”
Ultimately, the challenges facing Robeson law enforcement extend beyond a future reinstatement to the federal Equitable Sharing program. Sending non-appropriated federal forfeiture revenues to local law enforcement undermines local control of law enforcement, and skews law enforcement priorities away in the direction of collecting revenue. Additionally, federal oversight of these programs is generally lacking, as the Office of the Inspector General only audits a handful of agencies annually for compliance with federal Equitable Sharing regulations. The North Carolina legislature should act to take control of this situation by demanding all federal forfeiture revenues go to the North Carolina general fund, for appropriation by the elected representatives of the people of North Carolina.
Anne Arundel County Police Denies Records Request for SWAT Use, Civil Forfeiture Activity
Elizabeth Myers at the Maryland Watchdog reports on a public records request she filed with the county police of Anne Arundel, Maryland:
Anne Arundel County participates in required reporting in Maryland, part of Governor O’Malley’s StateStat initiative. SB 447, signed into law in 2009, requires certain reporting from jurisdictions with Special Weapons and Tactics (SWAT) teams.What is a SWAT team? The guys in the tactical gear that serve no-knock warrants.Since the county reports this information to the state, every six months, I requested it from Anne Arundel County in electronic format – that request was refused. Furthermore, I requested the fees be waived since all but a couple questions were straight from the state level StateStat report – they refused, charged $20, and didn’t answer those questions, anyway.Each reporting agency is required to provide:
- The number of times the SWAT Team was “activated and deployed;”
- The location where SWAT Team deployed (e.g., zip code);
- The legal authority for each activation and deployment (i.e., Arrest Warrant, Search Warrant, Barricade, Exigent Circumstances, or Other);
- The reason for each activation and deployment (i.e., Part I Crime, Part II Crime, Emergency Petition, Suicidal, or Other); and
- The result or outcome of each deployment (i.e., forcible entry used; property or contraband seized; weapon discharge by a SWAT Team member; the number of arrests; person or animal injury or death by a SWAT Team member; injury to SWAT Officer).
In Anne Arundel County calendar year 2012, there were 94 SWAT raids: 1.81 per week. Anne Arundel County ranks as one of the top 5 jurisdictions in the state that conducts SWAT raids.Raids are for two types of statutory crimes: Part I; Part II. Part I crimes are homicide, rape, robbery, aggravated assault, breaking and entering, larceny/theft motor vehicle theft, and arson. Part II crimes are essentially all drug related. Here are some stats for Anne Arundel:
- 68 percent of raids were for drugs/drug related
- 37 percent of raids used forcible entry
- 18 percent of raids seized property (no further information given)
- 30 percent of raids had 0 arrests
- 45 percent of raids had 1 arrest
- 9 raids were without warrant
- 0 raids had a weapon discharged
For all of this activity, the total budget is $2,716,900, which breaks down to a cost of $28,903 per raid.
Radley Balko commented on the potential for this activity to be funded by federal asset forfeiture revenues shared with Anne Arundel County Police in 2011:
Working with the feds, the Anne Arundel County, Maryland, Police Department set up a fraudulent payment processing business for online poker players. They then took the players’ money, under false pretenses, and deposited it in the federal government’s asset forfeiture fund. Complaining players, none of whom were ever charged with a crime, were told they’d have to try to recoup their losses from the poker sites, which of course have now had their assets seized in a separate federal investigation, and which never actually saw the money from these particular players, anyway.
Under federal “adoption” policy, any local police department working with the federal government in a criminal investigation gets to keep up to 80 percent of the property it seizes in that investigation. And once the feds get involved, the whole thing officially becomes a federal investigation, which allows local police departments to skirt state laws aimed at protecting citizens from forfeiture abuse.
In this case, the Anne Arundel Police Department bagged $30 million
seizedstolen from online poker players. They celebrated with a press conference and oversized novelty check. They’ll use the money to buy some cool new police equipment. Let’s hope it’s for more SWAT gear, so they can feel a bit safer the 150 times each year Anne Arundel County SWAT teams are deployed, most of the time to serve search warrants that result in misdemeanor charges.
This wouldn't be possible under Maryland law, which sends forfeiture revenues to a general fund, but as the Institute for Justice notes:
...But Maryland civil forfeiture law, unlike most other states, avoids creating a profit incentive for local law enforcement. All proceeds from civil forfeiture flow to the state general fund or the local governing body.
With the profit incentive eliminated under state law, Maryland law enforcement can and does still obtain forfeited property by working with federal authorities through adoption and equitable sharing. Despite the mandate that forfeiture proceeds go the general fund, state law enforcement, working with their federal partners, received more than $50 million in forfeiture revenue from 2000 to 2008. This end-run around state forfeiture law was challenged in court, but the Maryland Court of Appeals ratified the practice of equitable sharing even when law enforcement failed to obtain a court order permitting the use of the loophole
In Jefferson County MO, Drug Cops Run Wild
The Missouri State Auditor's Office just released their comprehensive annual report on the federal asset forfeiture activity of Missouri law enforcement agencies. This report demonstrates the extent to which dozens of Missouri police departments rely on asset forfeiture proceeds to fund their budgets. Even more concerning, the report indicates that multiple agencies had federal asset forfeiture proceeds but did not fill out the necessary paperwork or keep the records required to do so.
As a result, money and property are being seized from Missourians without accountability or transparency. That is even more troubling given the self-serving nature of federal asset forfeiture laws, which allow local law enforcement agencies to keep 80 percent of the money seized through forfeiture.
State law requires forfeiture reports to be submitted by "law enforcement agencies involved in using the federal forfeiture system under federal law." Seven law enforcement agencies reported holding a balance of funds in their federal forfeiture accounts on December 31 2012, but failed to disclose activity in 2013. Holding federal forfeiture dollars in your agency's bank account certainly constitutes being "involved in the federal forfeiture system" under any objective reading of the statute [as it would be impossible to know how federal forfeiture proceeds were spent by law enforcement if this disclosure isn't submitted].
Last year, seven law enforcement agencies in Missouri didn't supply the required documents to the Auditor's office for their annual report. State Law makes this lack of compliance a class A misdemeanor, and also prevents the Department of Public Safety from issuing funds to agencies who have not complied. The seven agencies with federally funded accounts but no records in 2013 include:
Cameron Police Department
Eureka Police Department
Hickory County Sheriff's Department
Jefferson County Municipal Enforcement Group (JCMEG)
Normandy Police Department
Park Hills Police Department
Webster Groves Police Department
State Law makes "knowing failure" to comply with the reporting requirement a class A misdemeanor -- although there's no evidence to suggest this law has been recently enforced. The 2013 audit report referenced above notes that:
"The DPS compiled a list of law enforcement agencies using information from the Peace Officer Standards and Training (POST) program and the Justice Assistance Grants (JAG) distribution lists, and notified the law enforcement agencies of the requirement to submit reports if the agencies participated in the federal forfeiture system."
The agencies have been notified by DPS of their requirement to comply, which means that they are guilty of a "knowing failure to comply with the reporting requirement" and thus should be charged with a class A misdemeanor and shall be denied funds from the Department of Public Safety (DPS) -- as prescribed by section 513.651.1 of the Revised Statutes of Missouri. After all, if police aren't held accountable when they knowingly defy the law, how can they claim the moral authority to enforce the law themselves?
Of these seven non-complying agencies, one stands out as having the most to lose by being cut off from funding through the Department of Public Safety. The Jefferson County Municipal Enforcement Group -- a multi-jurisdictional drug task force based in Jefferson County -- received over $336,000 in funding allocated through DPS in the last two years. With so much on the line, you might think law enforcement would be more attentive to reporting requirements, but JCMEG has flouted reporting requirements for asset forfeiture not only from the State Auditor, but from the Department of Public Safety as well.
A look into documents obtained from DPS via open records requests might shed some light on how this important responsibility could have been cast aside. To maintain eligibility for state grants from DPS, state law requires each multi-jurisdictional enforcement group (like JCMEG) to:
"(2) Establish a MEG policy board composed of an elected official, or his designee, and the chief law enforcement officer from each participating unit of local government and a representative of a hazardous materials response team or, if such team is not formed, then a representative of the local fire response agency, to oversee the operations of the MEG and make such reports to the department of public safety as the department may require;"
These policy boards provide some of the only formal oversight of drug task forces, so the law requiring them serves a compelling public interest. Unfortunately, documents from a site monitoring visit/compliance check conducted by DPS in March 2014 indicate that the Jefferson County MEG does not have an established policy board as required by state law. This raises the question: Does anyone actually oversee this government agency?
Moreover, some members of the task force seem to openly disdain public oversight and their roles as public servants. As part of another research inquiry, open records requests were filed with the JCMEG in November 2013. The commander of the task force, Corporal Chris Hoffman, was extremely hostile and disorganized in his response.
Upon receiving my requests, Corporal Hoffman started off his response by mocking my open records request and sarcastically thanking me for my "official-sounding email."
I replied the day I received this email with a follow-up request, providing some clarification on my end and requesting additional information. That second request went entirely ignored for over a month, at which point I emailed Corporal Hoffman again to follow up on my second request.
He responded by saying he planned to have answers to my request "forwarded to you at our convenience," either unaware that the Missouri Sunshine Law requires a response to an open records request within three business days, unwilling to comply with that law, or both.
The Sunshine Law exists because legislators decided (rightfully) that Missourians have a right to basic information about how their government agencies enforce laws and spend their tax money. When state officials openly mock the Sunshine Law, they are mocking one of the basic tenets of good governance in a republican society while simultaneously proving its necessity.
The Sunshine Law lays out specific guidelines to ensure transparency, including provisions of law that require timely responses to requests for information. I informed Corporal Hoffman of this provision and requested a response within three business days as required by state law.
He responded by telling me to talk to someone else (after nearly six weeks of back and forth emails in which he fulfilled submitted open records requests himself). Maybe if JCMEG complied with the state law that requires it to organize a policy board for oversight and transparency, it might find it easier to comply with state open records law. Just an idea.
Unfortunately, the lack of oversight I found in Jefferson County is hardly an isolated incident. I hope to continue exploring how Missouri's drug laws are enforced and the shocking lack of transparency and accountability shown by these government agencies.
However, this research is time-intensive and expensive. Simply acquiring the records upon which this research is based cost nearly $4,000. There is far more to write about those documents, but we can't do it without the funding.
Aaron Malin is the Director of Research for Show-Me Cannabis. You can email him with questions or comments at Aaron@ShowMeCannabis.com. Special thanks to Americans for Forfeiture Reform and the National Cannabis Coalition for making this research financially possible, as well as to Kelsey Smith for countless hours of research assistance.
Audit Ordered After San Diego Union-Tribune Watchdog Public Records Request Spots $1 Million in Missing SDPD Forfeiture Funds
Jeff McDonald at the San Diego Union-Tribune Watchdog reports:
A million dollars appears to be missing in records of San Diego Police Department funds seized from drug runners and other criminals, and the department is seeking an audit after U-T Watchdog spotted the issue.
Under a program that directs seized assets to local law enforcement agencies, the police force receives money from the U.S. Treasury Department. The Watchdog identified the missing money in reviewing records of the program over the past five years.
The certification report San Diego police submitted to the federal government in 2010 showed a closing balance of $1,153,426.
For 2011, the same report showed a beginning balance of $153,426 — exactly $1 million less than the prior year — with no explanation.
The funds in question came from assets seized by Treasury agencies including Internal Revenue Service, Customs and Border Protection and the Secret Service. Local agencies also receive funds from the Department of Justice when assets are seized by the Federal Bureau of Investigation, the Drug Enforcement Administration and other agencies.
Over the past five years, San Diego police received $6.4 million from the Justice and Treasury programs.
The U-T has been reporting on spending through such programs in jurisdictions across the region since April. The Watchdog received the San Diego police program records on May 14, and asked the next day about the $1 million inconsistency.
On Thursday, spokesman Lt. Kevin Mayer issued a brief statement saying the matter was being referred to financial investigators at City Hall.
“We acknowledge you have noted a discrepancy,” Mayer wrote. “We have asked the City Comptroller to do a complete review and audit of the seized asset fund to see if there is an error.”
The Treasury Department declined to discuss what ramifications there might be for the San Diego Police Department. Officials issued a statement saying the government has measures in place to make sure program participants comply with federal rules over how the funds may be used.
The complete records obtained by McDonald's Public Records Act request are here.
Diane Goldstein, a speaker with the organization Law Enforcement Against Prohibition, says, "Regardless of what is going on with the missing funds, the California Legislature should reform the process to reclaim Equitable Sharing revenues to a general fund, where a legislature will be responsible for them (either state or local), and the state auditor will be able to conduct more vigorous oversight."
What's the Point of Having a Legislature When the Cops Have Asset Forfeiture?
Kevin Glaser, a retired narcotics officer who currently serves as current vice president of the Missouri Narcotics Officers Association, has a very important quote in an article in today's St. Louis Riverfront Times that really deserves a lot more attention. To wit (emphasis mine):
"If we seize $50,000 from a drug seizure and it is drug proceeds, it's forfeited through the state of Missouri to the school fund to fund our schools. That sounds good. They have $50,000 to play with now. In actuality, though, what happens is our state legislators, when they're divvying out the money to the schools, and they see that $50,000 go into the school fund from asset forfeiture, they take out $50,000 they were gonna contribute to the school fund. The school fund does not make an additional $50,000 off of that. That's the way asset forfeiture has been since it came into effect.What law enforcement has done is, seeing that there's really no good coming to Missouri from asset forfeiture because other than funding general revenue - that's all it really does - we utilize federal forfeiture, which allows us to take that $50,000 seized from the drug proceeds and then we can, applied through a court system that has several checks and balances to make sure it was a very factual and legitimate seizure, then that $50,000 -- and actually it's only 80 percent of that because the federal government gets 20 percent right off the bat -- but 80 percent of that $50,000 can come back and be used by local law enforcement for very specific -- buying equipment, buying cars, -- there are very specific requirement, you just can't go out and spend it randomly on whatever you want. It can be utilized by the police department to further enhance the department and drug investigations and criminal investigations.
In other words, Kevin Glaser has a problem with the idea that the Missouri Legislature might do their duty and *gasp* appropriate funds to public uses that aren't law enforcement. Indeed, under federal asset forfeiture, Missouri law enforcement does not *really* need the consent of the legislature to receive or spend public dollars...which is really the point of having a legislature in the first place.
Addendum: Carl Bearden, who served as the Speaker pro tem of the Missouri House of Representatives from 2005 to 2007, says of Glaser's statement:
His statement is a bunch of bovine fecal matter. It is an example of attempting to show the ends justify the means. His statement of redirecting money is false. He simply plays on a common perception of what happens. In the end, It is much better to have people we elect to make those decisions that the non-elected, unaccountable people like Glaser make them "on our behalf".
Family wants their $48k back. Local officials say money they seized isn't a local matter.
Responding to a tip from the DEA, the Iowa City Police Department (ICPD) stops family’s car with a K-9 unit. K-9 (of course) alerts to vehicle. Officers don’t find any drugs. Officers, however, find family has $48,000 in cash. Officers take the money. Family claims money was intended to buy property from relatives. Family claims that the sale didn’t go through. Family says they were driving home with the money when ICPD pulled their vehicle over. Family demands the return of their money. ICPD says they gave the money to federal authorities. Family sues in Iowa court for return of the money. County Attorney argues local courts lack jurisdiction over the matter because the money was given to federal authorities. ICPD and County Attorney claim federal authorities thinking about forfeiting the money. Called to provide witnesses on the seizure and transfer, ICPD sends (apparently) uninformed sergeant as witness. Sergeant speculates on the case:
“Iowa City Sgt. David Droll, who took the stand as a state witness during the hearing, said that although he did not conduct the initial traffic stop, it was his understanding that a DEA official contacted the Iowa City Police Department on March 16 and informed them that the vehicle being driven by Overton was to be stopped as part of an ongoing narcotics investigation.
“My take on this was that it came from the DEA. They made the phone call to one of our officers that got the ball rolling,” Droll said. “I believe there is an ongoing drug investigation, but it’s not being done by the Iowa City Police Department.”
Little additional information was made available during the hearing about the DEA investigation and none of the three Iowa City officers who conducted the traffic stop or searched the vehicle attended the hearing.” Mitchell Schmidt, Sides Debate Legality of Police Seizing Couple’s $48K, Iowa City Press-Citizen, May 13, 2014.
Thus far, neither federal or local authorities have raised charges against the money or the family. The family is, however, without its money. Further, the family faces fighting two costly legal battles, in federal and local courts.
Mitchell Schmidt, reporting for the Iowa City Press-Citizen, quotes the presiding district court judge as saying that he is profoundly troubled by the situation.
As for the ICPD, they stand to receive up to 80% of the proceeds of the seizure if the money is ultimately forfeited by federal authorities. Insidiously, under federal guidelines, the ICPD is free to spend the windfall on overtime salaries for the very officers who seized the cash on a DEA tip.
Could The Southeast Missouri Drug Task Force Exist Without Asset Forfeiture?
A 2012 financial report by the firm of Bucher, Essner and Miles and delivered to the office of Missouri Auditor Tom Schweich found that the Southeast Missouri Drug Task Force was seriously dependent on forfeiture proceeds:
“The Task Force is reliant on funding from local governmental units participating in the agency in conjunction with federal grant monies applied for each year. In addition, the Task Force is entitled by current federal regulations to receive a portion of any money seized or proceeds from the sale of property seized by it during the course of an investigation or arrest. Changes in the laws concerning cooperative sharing of seized property, availability of federal funds or the economy in the area surrounding the governmental units could have an adverse effect on the task force.
"restricted balance of $923,944.40 represents unexpended federal forfeitures that are limited to the following permissible uses; activities to enhance future investigations, law enforcement training, law enforcement equipment and operations, detention facilities, law enforcement facilities and equipment, drug education and awareness programs, pro rata funding and asset accounting and tracking."
Many thanks to Aaron Malin, who received this audit report through a Sunshine Law request and is working with AFR and the American Victory Coalition to further research the modalities of drug law enforcement in Missouri, particularly with respect to asset forfeiture and marijuana law reform.