Americans for Forfeiture Reform

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 seized stolen 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

The Coeur d'Alene Press recently published a three-part series on civil forfeiture in Idaho. The first part "Taking the profit out of crime" describes how law enforcement can force criminal defendants to defend themselves in both criminal and civil court through the use of civil forfeiture:

"The laws are set up that we can hurt those people two ways: you take them to jail and seize their drugs, which takes them out of business, or you can seize their assets," Wolfinger said. "We've done both fairly successfully and we continue to do that."

Under Idaho statute, law enforcement agencies have the ability to seize assets potentially used in drug trafficking or manufacture. These assets range from cash and vehicles to equipment used to cultivate and create the drugs themselves.

Once assets are seized, the case is forwarded to the civil division of the county prosecutor's office.

"We (then) file a civil complaint and get the interested parties served to give them an opportunity to contest the case if they want to," Kootenai County Prosecutor Barry McHugh said.

If the civil case is successful, both the investigating agency and the prosecutor's office receive portions of the assets seized.

Law enforcement agencies are able to use these funds for, according to Wolfinger, anything in the "drug enforcement nexus." This includes training, new equipment, banquets and contributions to organizations such as the Idaho Meth Foundation.

The prosecutor's office receives 15 percent of the proceeds in the event that funds are obtained as a result of the case.

"This is for, in some regard, the time and the work that went into the effort in the forfeiture action as a way to reimburse the county for the time spent by employees," McHugh said.

In the second part, "Drug seizure funds to purchase vehicle", reporter Keith Cousins notes the use of forfeiture proceeds to fund K-9 enforcement squads and purchases of military weaponry:

"There's no way we could spend over $300,000 for a SWAT vehicle; the budget certainly couldn't handle that," Wolfinger said. "But here's the opportunity to keep our team safe and the taxpayer doesn't deal with a nickel of it."

The sheriff's office is currently awaiting delivery of its own $335,000 BearCat, purchased with money from the county's drug forfeiture fund. The transaction was approved in March by the county's board of commissioners.

The armored truck is expected to arrive at the end of this month.

Since 2009, the Kootenai County Sheriff's Office has taken in nearly $2 million in drug forfeiture proceeds.

In 2013, the sheriff's office took in $271,230 in illegal drug proceeds. According to Lt. Stu Miller, the office has been awarded $39,136.55 of those proceeds. The rest of the funds are either part of pending court decisions, have been returned to defendants or given to the prosecutor's office.

"We use it (the funds) to send officers to schools to learn about how to find these drugs and take them off the street," Wolfinger said. "We buy equipment for the SWAT team and for the patrol guys. We've done some weapon enhancements for the patrol guys because they're dealing with these people every day, so there's certainly a drug nexus there."

This total does not include three vehicles that were seized and then used by sheriff's office detectives in the course of their work.

"That's a great opportunity for us to get a vehicle with no taxpayer dollars involved," Wolfinger said.

Smaller items, such as replacement siren speakers for sheriff's office vehicles and parts for weapons, have also been purchased using forfeiture funds.

Post Falls Police Chief Scot Haug said that, while his department has a much smaller drug forfeiture account when compared to the sheriff's office, the funds are all used "to reduce illegal drug activities in the community."

"So there is a variety of things that we've done with the money in the past such as provided training for our officers, drug reduction type programs and body armor for our SWAT officers," Haug said. "It's all one-time purchases, typically capital purchases."

Haug added that the department's K9 program was created using a significant amount of seizure money and the majority of the program is still funded with it.

The third part, "Burden of proof", features a defense of civil forfeiture by law enforcement:

Kootenai County Prosecutor Barry McHugh argues that it's in fact the prosecution that bears the burden of proof.

"In some cases, the claimants don't present any evidence but ultimately the court decides in their favor," McHugh said.

To support his argument, McHugh referenced a recent appellate court decision that could return property seized under the state's civil forfeiture law to its owner. The ruling states "the plaintiff must prove by preponderance of the evidence that the vehicle was used or intended to use ... " indicating, McHugh said, that his office bears the burden of proof.

According to Salzman, forfeiture can also create a "course of least resistance" for law enforcement agencies because "you just have to suspect the property of being involved in a crime" in order to seize it.

"I think it breeds a culture of seizure where it's easy for the law enforcement agencies to do it compared to the alternative which is charging people for a crime and making a case," Salzman said.

However, those in charge of local law enforcement agencies say they disagree with Salzman's assessment.

Kootenai County Sheriff Ben Wolfinger said the motivation behind any civil forfeitures his office makes is not the proceeds, but taking drugs off the street.

"We haven't really gone after the cash, we are going after the dope," Wolfinger said. "We're not making money taking dope off the street, but we are taking dope off the street."

Wolfinger added that individual officers do not get bonuses and do not have any additional incentive when it comes to drug cases that include forfeitures.

"We've been able to send some officers to training we wouldn't have been able to and that's good. We've been able to buy some equipment we wouldn't normally have been able to buy and that's good," Wolfinger said. "But we're taking a lot of dope dealers off of the street."

Post Falls Police Chief Scot Haug said he sees civil forfeiture as a mechanism that makes criminals pay for their crimes while taking the burden of funding law enforcement activities off taxpayers.

"What a better way to be able to help train some officers and help get them some equipment, to help start a K9 program, then to have the drug dealers pay for it," Haug said. "If we didn't have that drug seizure money, you and I would be paying for that. It's about time that the criminal chips in and pays for some of the equipment and training to fight this problem that we have."

First, a word of congratulations is in order to Lee McGrath at the Institute for Justice, who has spearheaded the effort to reform asset forfeiture in Minnesota. As Bob Adelmann reports in the New American:

On August 1, citizens in Minnesota will rejoice that the police can no longer steal their property without their being convicted — or even charged with — a crime. Until then, Minnesota remains an upside-down world, as do many other states, where police can seize cash and property if they think that somehow that cash or property was involved in a crime. Until August 1, citizens who have had their property seized will still have to prove a negative: that their property was neither the “instrument” nor the “proceeds” of the charged crime.

Lee McGrath, executive director of Minnesota’s chapter of the Institute for Justice (IJ), which was instrumental in successfully pushing for passage of the bill, noted:

"No one acquitted in criminal court should lose his property in civil court. This change makes Minnesota’s law consistent with the great American presumption that a person and his property are innocent until proven guilty."