Americans for Forfeiture Reform

The Chicago Tribune reports:

North Chicago Police Chief Michael Newsome, accused of stealing more than $140,000 from the city’s drug asset forfeiture fund in 2012, is scheduled for trial Feb. 2.

Both Assistant State’s Attorney Fred Day and defense attorney Douglas Zeit said this fall they wanted to see the case resolved before the end of this year, but delays due to illness and final evidence disclosure pushed the case into 2015.

Newsome pleaded not guilty in February 2013 to charges of theft of government property, which carries a mandatory 6- to 30-year prison sentence upon conviction. He is also charged with official misconduct and misallocation of funds.

After 14 years with the North Chicago Police Department, Newsome was promoted to police chief in 2005. He resigned in 2012.

In 2012, the Chicago Tribune reported that:

Newsome, 51, was also charged with a separate count of theft of $500 to $10,000, stemming from an allegation that he withdrew an amount of money on May 4 of last year to pay for his children's school, authorities said.

Newsome's case highlights the ongoing and persistent issues with allowing law enforcement to control the non-appropriated revenues garnered through asset forfeitures. A key reform at the state and federal level would be to simply send forfeiture revenues to general funds controlled by legislative bodies; this policy change would eliminate a source of temptation and corruption endemic to law enforcement agencies that receive these revenues.

The following article is republished with permission from the Florida law firm of Woodward & Reizenstein. You can contact the author at Philip@miamicriminallaw.net:

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The forfeiture of assets, like the forfeiture of cash, forfeiture of cars, forfeiture of cells phones and other personal electronics is a powerful tool in the government's arsenal against a person they have arrested.

Both federal and state prosecutors employ forfeiture procedures, and the rules about getting your property back and emplying a successful forfeiture defense are different for each entity that seized your property.

State Forfeitures and Forfeiture Defense in Florida.
Typically, the police and prosecutors will seek forfeiture of cash, jewelry, cars, and electronics. In order to obtain a forfeiture of the property, the seizing agency must provide notice of the forfeiture. Sometimes they will give the person notice of the forfeiture at the scene of the arrest and other times they will send notice of the forfeiture in the mail.

Your rights to fight forfeiture and get your property back:
Once you receive notice of the forfeiture, you have twenty days to file a notice requesting an Adversarial Preliminary Hearing (APH). The form of your request for a hearing must be in writing, must identify the property and the seizing agency and the date of the seizure, and most importantly- must be sent by certified mail to the agency seeking forfeiture. Upon receipt, the agency must schedule a hearing in court before a judge within ten days.

At the APH the seizing agency bears the burden of showing probable cause for forfeiture: a nexus between the criminal conduct and the property. If the court finds no probable cause, the property will be returned. If the court finds probable cause, then the forfeiture case will continue. The seizing agency will file a lawsuit against the property seeking forfeiture. One defense to this forfeiture lawsuit would be an "innocent owner" defense.

FEDERAL FORFEITURES:
While the law regarding forfeiture in Federal Court is similar to the laws in the State of Florida, the procedure to fight the forfeiture is different.

The agency seeking forfeiture will send a notice of seizure which requires the forfeiture claimant to file a response within 30 days.

There are several options about how you can respond to a federal forfeiture. They include making an immediate offer of settlement, requesting an administrative review of the forfeiture, and requesting an immediate court case on the forfeiture. Many times we will request an administrative review of the forfeiture as it still allows for us to request the filing of a court case at any time.

One of the overriding principles of forfeiture asset seizure law is that the laws allowing for forfeiture asset seizure are "strictly construed" against the seizing agency. This means that if at any time during the forfeiture process the seizing agency fails to provide proper notice or misses a statutory deadline, the property will be ordered returned.

Those interested in the use of aggressive, militarized law enforcement tactics in Ferguson, Missouri, should consider the role of  non-appropriated asset forfeiture revenues as a substantial funding mechanism for military weaponry and its use. First, consider this note from the website of the Metro Air Support Unit (a joint operation with the St. Louis County Police Department, the St. Louis Metropolitan Police Department, and the St. Charles County Sheriff’s Department):

The contracts signed by each of the three participating departments specify the agreements of each department to provide the personnel as listed above and the annual dollar amount to be contributed by each department towards operating expenses. The contracts state the St. Louis County Police Department and the St. Louis Metropolitan Police Department are to contribute $150,000 annually and due to a lower call volume and usage of the helicopter the St. Charles County Sheriff’s Department is to contribute $100,000 annually.

All of the money contributed by each department is money that is collected from asset forfeiture. Asset forfeiture is a term used to describe the confiscation of assets which are either the proceeds of crime or the instrumentalities of crime. No funding of the Metro Air Support Unit comes from any of the police departments actual budgets.

In recent years all of the Metro Air Support Unit’s major equipment purchases have been funded with federal grant money, most of which is provided through the Department of Homeland Security or U.A.S.I. (Urban Areas Security Initiative). The unit’s 2009 model MD-500E helicopter, FLIR (forward looking infra-red) system, and onboard moving maps systems are some examples of this equipment that has been purchased. The unit is also scheduled to receive a fourth MD-500E model helicopter upon its completion at the MDHI factory in November of 2012.

Second, consider this October 2011 story by Christine Byars in the St. Louis Post-Dispatch:

Use of rifles has raised questions in some communities about liability and the propriety of issuing military-style weapons to rank-and-file officers who seldom encounter terrorist or spree shooting situations.

But Fitch cited a 2008 Maplewood shooting, in which a sniper killed a firefighter and wounded two police officers, and the 2008 Kirkwood City Hall attack, that left six victims and the killer dead, as situations in which rifles would be valuable.

"I understand the criticism, but it isn't realistic," Fitch said. "Hoping that it never happens is not a good strategy."

St. Louis County was among large departments to issue rifles after a 1997 incident in which two heavily armed bank robbers shot it out for 44 minutes with Los Angeles police, wounding 11 officers and seven civilians before being killed. Out-gunned police obtained rifles from a gun shop to fight back.

The county police have bought about 156 rifles with asset forfeiture money, about half the number needed. At more than $1,000 each, it could take years, Fitch said.

Taken individually, it doesn't seem like much that these law enforcement agencies purchased heavy duty weapons or fund personnel costs for the operation of military-grade hardware through asset forfeiture revenues, but it begs the question: why do we have a legislative branch of government when the executive branch can fund itself through property seizure and forfeiture? Would a legislature make substantially the same appropriations if this money were part of the general fund for the respective political units involved in these organizations? Should the Missouri legislature, county, and municipal governments continue to abdicate their power of the purse over law enforcement?

It is also worth noting that under Missouri law, civil forfeiture revenue is supposed to go to the School Building Revolving Fund. Unfortunately, thanks to the federal Equitable Sharing Program, law enforcement can funnel these revenues through federal agencies. As the Institute for Justice notes:

Equitable sharing makes this bad situation worse. Through equitable sharing, police and prosecutors can take property from citizens under federal civil forfeiture law instead of their own state laws. From the perspective of law enforcement, this is a good deal: Federal law makes civil forfeiture both relatively easy and rewarding, with as much as 80 percent of proceeds returned to the seizing agency.

Thus, with equitable sharing, state and local law enforcement can take and profit from property they might not be able to under state law. If a state provides owners greater protections or bars law enforcement from directly benefiting from forfeitures, agencies can simply turn to federal law.

I am reminded of this quote from Kevin Glaser, a retired narcotics officer who currently serves as current vice president of the Missouri Narcotics Officers Association, from an article in the St. Louis Riverfront Times. 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.

Carl Bearden, who served as the Speaker pro tem of the Missouri House of Representatives from 2005 to 2007, responded to Glaser's statement:

There are two legislative solutions that can fix this situation. First, the Missouri legislature can ban the practice of civil asset forfeiture and state law enforcement participation in federal equitable sharing; the Institute for Justice has drafted excellent model legislation on this point. Second, US Senator Rand Paul's (R-KY) Fifth Amendment Integrity Restoration Act would send federal forfeiture revenues from the Department of Justice to the Treasury's General Fund, and would further force federal forfeiture distributions to state law enforcement to follow state law. You can support Senator Paul's FAIR Act by clicking through here and using AFR's Popvox legislative advocacy tool to send an endorsement of this legislation to your elected federal representatives.

Michelle Sullo at the New Haven Register has a good article last week on the use of asset forfeiture revenues in Connecticut. The whole story is worth reading, and Sullo concludes by highlighting a fundamental issue with the asset forfeiture system:

Eapen Thampy, executive director of Americans for Forfeiture Reform, based in Missouri, said there are thousands of recipients annually, with very little oversight or auditing to protect against inappropriate purchases like luxury items or trips.

Thampy expressed concern over how much control police have over how the money is spent, without consent from an outside municipal legislative body.

“Even if they are following the law, they are not necessarily using it for the best thing,” Thampy said. “Military grade equipment in a local police department is probably legal, but is it desirable? There is this conflict of interest because law enforcement gets to decide what they do with the revenue, rather than having it go through a system of checks and balances. We advocate that this money should go to a general fund, and a legislative body should appropriate it.”

Connecticut Police Chiefs Association President John Daly, who is chief in Southington, responded to the criticism by saying that the law allows for police to decide how the money will be spent.

“I would say that the way it is set up now, with the money being used for training and to enhance investigative skills, that is where it is well spent,” John Daly said.

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: