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Brennan David’s coverage of the debate over the use of forfeiture funds by the Columbia (Missouri) Police Department from last night’s Columbia Tribune is a welcome addition to the media coverage of the issue. Unfortunately, the article contains several inaccuracies, and I further wanted to use the story to illustrate the underlying issues that Americans for Forfeiture Reform continues to oppose.

The Columbia City Council on Monday night heard the first reading of a police department request to spend $16,000 in asset forfeiture funds on new SWAT team headsets, despite a request from the Citizens Police Review Board to use the money to launch its mediation program.

Council members did not directly question last night whether asset forfeiture funds collected by the U.S. Department of Justice and U.S. Department of Treasury could be allocated to the review board, but a police department presentation made clear that such a transaction would not be permitted. Federal guidelines prohibit the use of the funding to supplement salaries for positions exceeding one year, as well as the use of funding by non-law-enforcement personnel.

The Department of Justice Equitable Sharing guidelines controlling the use of federal asset forfeiture funds by recipient state and local law enforcement agencies are contained in the DOJ publication “Guide to Equitable Sharing for State and Local Law Enforcement Agencies” (April 2009). They are not statutory law; they are policies set by the Attorney General. It is correct that the use of federal forfeiture money by the Citizens Police Review Board would be prohibited by these guidelines, but that begs a larger question: why does a federal agency presume to tell Columbian citizens how they can spend the money received by the Columbia Police Department? Do we not have the right to control our own city and local agencies?

The Tribune continues:

The police department receives asset forfeiture funds through its participation in federal cases that result in the seizure of money collected as evidence or used in the process of a crime, assistant city counselor Nicole Volkert said. A federal judge then decides whether the money can be reallocated to the Federal Asset Forfeiture Equitable Sharing Program.

Strictly speaking, this is not entirely true. Federal forfeiture laws allow the seizure of property on the suspicion that the property was involved in illegal activity. The federal government does not have to substantiate its allegations, provide proof, or even file charges in criminal court to seize and forfeit property. As our colleagues at the Institute for Justice noted in their 2010 “Policing for Profit” report:

Seized assets transferred to the federal government through equitable sharing agreements may be forfeited regardless of whether an individual is charged, let alone convicted, of a crime in either state or federal courts.  If the assets are successfully forfeited to the federal government, the funds are deposited in the appropriate federal asset forfeiture fund, and state and local agencies receive a percentage back.

It is also worth noting that federal judges do not decide whether the forfeiture can be disbursed to the Federal Asset Forfeiture Equitable Sharing Program; that decision is wholly the purview of the federal agency initiating the forfeiture. Additionally, it is not necessarily even a common occurrence that a judge is involved; most federal forfeitures begin and are resolved as administrative forfeitures, where there is no judicial supervision. Additionally, federal agencies and US Attorneys will often try to “trick” claimants into filing a claim for remission (where the agency is the arbiter deciding the merit of the claim) instead of filing a claim to contest the forfeiture in federal court.

In September 2012, the Department of Justice’s Office of Inspector General (OIG) released an audit of Drug Enforcement Administration (DEA) adoptive seizure process and equitable sharing requests. It is worth noting that:

Of instances involving federal adoption of assets seized, 65% of reported samples [41 of the 63 examined samples] required DEA headquarter approval to adopt the seizure because the instance lacked all of the following criteria:

  1. the seizure was based on a federal or state judicial seizure warrant;

  2. an arrest was made for a felony violation of the Controlled Substances Act or an equivalent state felony charge that would be a felony if pursued under federal law; and/or

  3. drugs or other contraband associated with a federal felony drug offense were also confiscated at the time of seizure.

These statistics indicate that it is a lie that forfeiture proceeds represent the proceeds of crime. We argue that in forfeitures where there is no warrant, felony arrest, or contraband found that innocent people (ordinary Americans) are essentially being robbed blind by a powerful federal agency. And it’s not just the DEA. As we reported in August:

Attorney General Eric Holder has granted the Bureau of Alcohol, Tobacco, Firearms, and Explosives authority, for a one-year trial period, to seize and administratively forfeit property allegedly involved in controlled substance offenses pursuant to United States Code Title 21 › Chapter 13 › Subchapter I › Part E › § 881.

21 U.S.C. § 881 is, among other things, often invoked to seize and forfeit bulk currency, where no drugs are found, on theories that the currency was furnished, or intended to be furnished, in exchange for a controlled substance.

Do we want Columbia Police Department involved in this federal racket? Unfortunately, it appears Columbia Police Chief Ken Burton turns a blind eye to this reality:

Funding collected through the federal program increased last year because Columbia police assigned a detective to work with the DEA in Jefferson City, Burton said. The department collected $61,165 in 2010, $41,769 in 2011 and $121,964 in 2012.

Burton said the detective’s assignment to the DEA was not meant to increase asset forfeiture funding.

“It’s the effect they can have on drug trafficking in Columbia,” Burton said of the reason for the assignment.

Extra credit: What precise effect does the DEA have on drug trafficking in Columbia?

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