1889 Institute: OK should abolish Civil Asset Forfeiture

ABOLISH CIVIL ASSET FORFEITURE SAYS INSTITUTE

Or at least change the incentives officials face

OKLAHOMA CITY, OK (March 6, 2019) – The United States Supreme Court recently held that the protection against excessive fines, enshrined in the Eighth Amendment to the U.S. Constitution, applies to state governments, not only to the federal government. It also notes that the practice of Civil Asset Forfeiture can run afoul of this vital constitutional protection. In a new legal analysis, the 1889 Institute gives a brief summary of the decision and an analysis of what comes next.

The piece recommends that Oklahoma, which will be bound by the court’s decision, ban the abusive practice of Civil Asset Forfeiture, and realign incentives to avoid corrupt revenue measures like fines and fees that help to fund the agencies charged with enforcing them.

Civil Asset Forfeiture allows police departments to seize property belonging to citizens based on a suspicion that the property was used in or was the proceeds of a crime. However, basic due process rules do not apply, such as the right to an attorney, trial by jury, and presumption of innocence. Hearings often go unopposed because the cost of hiring an attorney to dispute the accusations is more than the value of the property. Often, criminal charges are never filed against the property owner.

“There is no accusation of wrongdoing on the part of current officials, but the incentives current law gives them are badly misaligned,” said Michael R. Davis, the author of the report. “Anyone involved in writing tickets, anyone involved in enforcing fines or fees of any kind should be completely separated from the fiscal impacts of those fees and fines. A foundational principle of the rule of law is that no one may judge their own case. But when your department is funded through fees and fines, that’s exactly what happens.”

The paper recommends that all fines and fees received from any state or local government agency be placed into the state general fund. This ensures that financial penalties are doled out when they are deserved, not when the relevant agency needs a cash infusion. “Even the most honest officials change their behavior when an agency gets funding from fines,” said Davis.

Says Davis, “Civil Asset Forfeiture is the most widely abused of these money grabs. But unless Oklahoma puts an end to them all at once, we can expect law enforcement agencies to turn from forfeiture to increased ticketing when their expenditures outrun their budgets.”


About the 1889 Institute
The 1889 Institute is an Oklahoma think tank committed to independent, principled state policy fostering limited and responsible government, free enterprise and a robust civil society. The publication, “Well Begun is (Only) Half Done: The Supreme Court’s Excessive Fines Decision; Need for Further Reform” and other reports on licensing can be found on the nonprofit’s website at http://www.1889institute.org/govt-profiteering.

Another resignation: State Sen. Kyle Loveless steps down

State Sen. Kyle Loveless (R-OKC) abruptly resigned today, amid investigations by the Oklahoma Ethics Commission and Oklahoma County District Attorney's office into possible campaign finance violations.

Loveless was first elected in 2012, and had made civil asset forfeiture reform his primary mission in recent years, getting major opposition from some in the law enforcement community.

This becomes the fifth resignation in the legislature since the 2016 general election; State Rep. Tom Newell (for a private sector job), State Rep. Dan Kirby (sexual harassment allegations), State Rep. Scott Martin (for private sector job), State Sen. Ralph Shortey (child prostitution arrest). State Rep. David Brumbaugh's sudden passing creates another vacancy requiring a special election.

Oklahoma Police Chief speaks at CPAC on Civil Asset Forfeiture

Police Chief Stephen Mills of Lindsay, Oklahoma, spoke at CPAC this morning on the topic of Civil Asset Forfeiture. Here's his speech:



Here's his bio/resume from CPAC. Chief Mills occasionally writes opinion pieces on his Facebook page here.

SoonerPoll finds rising support for Civil Asset Forfeiture Reform

State Sen. Kyle Loveless

SoonerPoll: Support for Civil Asset Forfeiture Reform on the rise

(August 24th, 2016)  New data from Sooner Poll shows more Oklahomans than ever want to see Civil Asset Forfeiture reform. Support for reform is up to 73.7% in 2016 compared to 69.9% in 2015.

"These numbers clearly show Oklahomans are ready for lawmakers to act on Civil Asset Forfeiture," says Bill Shapard, President of Sooner Poll.  "Despite overwhelming public support during the 2016 legislative session, for whatever reason, leadership decided to brush the issue aside.  But, when almost 3 out of 4 Oklahomans want to see this issue addressed, lawmakers really need to pay attention."

Sen. Kyle Loveless (R-Oklahoma City) has championed Civil Asset Forfeiture reform for more than a year and plans to re-introduce legislation in 2017.  Sen. Loveless has built a coalition spanning the political spectrum to push for substantive reform next year.

"The work to reform Oklahoma's Civil Asset Forfeiture system has always transcended partisan lines and this new poll only amplifies the call to end the practice of seizing money and property from Oklahomans who have not been convicted of any crime," says Ryan Kiesel, Executive Director of the ACLU of Oklahoma.  "Oklahomans across the political spectrum understand that empowering the government to take a person's property or money with very little, if any, actual cause is an affront to our fundamental rights and freedoms."

Senator Loveless believes the burden now lies solely on the legislature to fix a broken system.

"This is not a law enforcement issue, this is an issue where government is wrong to take people's property without proving anything in court," Sen. Loveless says.  "Oklahomans of all walks of life, metro area to the smallest town, blue or red, left or right, regardless of where they come from Oklahomans want serious forfeiture reform."

Senator Loveless has requested an interim study on Civil Asset Forfeiture.  A date for that hearing has not yet been scheduled.

The poll surveyed 398 Oklahoma voters from July 20-25th and has a margin of error of 4.91%. The questions and results are posted at www.SoonerPoll.com.

Loveless comments on Fallin's ERAD-delay order

Following Governor Fallin directing the Oklahoma Highway Patrol to delay use of their ERAD card readers, State Sen. Kyle Loveless (R-OKC) issued the following statement:

"On behalf of freedom-loving Oklahomans across the state, I want to thank Governor Fallin for taking this issue seriously.  Suspending OHP's card scanner program is the appropriate response until we know exactly what the full capabilities of these device are."

"When we are faced with balancing Constitutional liberty and public safety, we should always err on the side of the Constitution until we have all the facts."

Fallin directs OHP to delay ERAD usage

Governor Mary Fallin Directs Oklahoma Highway Patrol to 

Delay Use of Credit Card Reading Devices

Governor Wants Policy Developed for Using Electronic Card Readers

OKLAHOMA CITY - Governor Mary Fallin today directed her Cabinet secretary of safety and security to delay the use of devices that read the magnetic strips on credit, debit and gift cards as well as any other card that has financial information on them.

The Oklahoma Highway Patrol has had the Electronic Recovery and Access to Data readers for about a month. The agency purchased 20 card readers, with 16 assigned to troopers. None of the devices have been used to help seize any funds.

The readers are intended to apprehend those involved in identity theft or other illegal activities involving monetary transactions. The readers allow troopers to read the back of the strip on a card or other item, such as a hotel room card, to see if it matches the information on the front.

Secretary of Safety and Security Michael Thompson, who also serves as commissioner of the Department of Public Safety, said that before troopers may use the readers, they must have reasonable suspicion to believe a crime has occurred. Troopers typically would not use the devices unless a motorist was stopped traveling with dozens of cards.

Some groups and lawmakers have raised concerns that the devices could be misused and raised suspicions that troopers were scanning everyone’s information.

“The Department of Public Safety needs to formulate a clear policy for using this new technology,” said Fallin. “It can be a viable tool for law enforcement only if authorities are able to ensure Oklahoma motorists and others driving through our state that it will be used appropriately.”

More than 25 states use the card-reading devices. Their use has been upheld by courts.

“The Oklahoma Highway Patrol has enjoyed the trust of Oklahoma motorists for decades,’’ Fallin said. “Taking time to develop policy for the use of these devices and to educate the public will help calm the fears of the motoring public.”

OHP, Loveless comment on ERAD card reader usage

Civil asset forfeiture has been a brewing controversy over the past few years, both in Oklahoma and across the nation.

What is civil asset forfeiture? Here's an explanation from the Cato Institute:

Under state and federal law, police departments can seize and keep property that is suspected of involvement in criminal activity. Unlike criminal asset forfeiture, however, with civil forfeiture, a property owner need not be found guilty of a crime—or even charged—to permanently lose her cash, car, home, or other property.

Oklahoma is widely recognized as a state with many abuses in the civil asset forfeiture practice. Mike McCarville of The McCarville Report has posted extensively about this topic. One recent case took place right here in Muskogee County, when Burmese Christian band manager Eh Wah had over $53,000 in sales proceeds and donations seized by the Muskogee County Sheriff's Department after being pulled over for a broken tail light. Wah was never charged with a crime, and after the story hit national media Muskogee County District Attorney Orvil Loge dropped all charges and returned the money.

Recently, news broke that the Oklahoma Highway Patrol had acquired new technology that can be used in asset forfeiture. Enter the Electronic Recovery and Access to Data (ERAD) Prepaid Card Reader. Here's this from the Department of Homeland Security:

During arrests of criminal couriers, law enforcement officers rarely find bundles of cash wrapped in rubber bands anymore. Instead, they find stacks of plastic cards — bank credit and debit cards, retail gift cards, library cards, hotel card keys, even magnetic-striped Metrorail cards — that have been turned into prepaid cards.

The Department of Homeland Security Science and Technology Directorate’s Electronic Recovery and Access to Data (ERAD) Prepaid Card Reader is becoming a vital tool for law enforcement seizing these cards and funds associated with criminal activity.Several credit cards, hotel key cards and other cards with magnetic strips

The ERAD Prepaid Card Reader is a small, handheld device that uses wireless connectivity to allow law enforcement officers in the field to check the balance of cards. This allows for identification of suspicious prepaid cards and the ability to put a temporary hold on the linked funds until a full investigation can be completed. The project, developed by S&T’s First Responder Group (FRG), began in March 2012.
[...]
FRG transitioned the card reader to the commercial market, and it is now available for law enforcement use.

The Oklahoma Highway Patrol acquired between 15 and 20 ERAD devices from ERAD Group, Inc., in April. According to the contract (PDF link), OHP is paying a one-time implementation charge of $5,000, in addition to 7.7% of all funds seized through the readers and up to $1,500 for training.

I spoke with OHP public information officer Capt. Paul Timmons yesterday about the program. According to Timmons, "The [ERAD] readers have been used in other states across the country for quite some time; Oklahoma has had them for approximately 3 weeks." He didn't have any information about surrounding states using the readers. Due to the amount of readers purchased, only a small number of patrol cars have the devices.

I asked how many incidents have resulted in seizing of funds, and he said that "there have been no seizures of funds to date." 

He further said that two arrests have taken place as a result of OHP implementing the ERAD readers. "There have been charges filed for taking a credit card without consent, false making of credit/debit cards, possession of unsigned credit/debit cards, and possession of incomplete credit/debit cards as a result of having the [ERAD] machines. Other charges filed include possession of falsely/embossed bank cards and possession of drug paraphernalia. Total arrested so far 2 subjects with charges totaling over 260 felony charges.  Arrest warrants have been issued for two other suspects." The two individuals arrested had 129 cards with them.

When asked under what circumstances the readers are used, Capt. Timmons likened it to a DUI stop. The individual has to meet certain benchmarks before being pulled over, and if the officer determines there is enough probable cause or reasonable suspicion, they obtain consent to search vehicle and to run cards through reader. If the information listed on the card doesn't match what shows up when the card is scanned, the ERAD reader gives an error message, at which point they can pursue to an arrest and/or seizing of the card(s).

Capt. Timmons said that the biggest misconception about the readers is that they can scan bank debit or credit cards and pull banking information off. He said that is not the case; the readers only work on preloaded gift cards and similar cards. "We absolutely will not ask for your banking information" or credit card information.

According to Capt. Timmons, OHP is using the devices primarily to investigate credit card fraud and identity theft.

State Sen. Kyle Loveless, the primary legislative author of civil asset forfeiture reform, has strong concerns about the program.

Overreach by the government without any or little due process is what we fought the British over 200 years ago.

Rewind your clock a year, we were told NO innocent people's property was ever taken, and we only could use the property on drug interdiction efforts and law enforcement purposes.   That sounds great- but it is patently FALSE.

Ask the Goss family of Creek County or Chief Steven Mills of Apache, Oklahoma or the famous case out of Muskogee – of international fame because of Mr. Wah who was the manager for the Christian band that traveled around the US raising money for missions, and for orphans in Burma.

If their money isn't safe neither is yours or mine. These ERAD readers are forfeiture on steroids.

Their own promotional materials boast of taking months of wasted time and process where we can drain the funds from these cards in seconds—from months to seconds. They leave two words out – DUE PROCESS.

The legislature was never told about these purchases and when 25 states had legislation to reform their terrible forfeiture laws- Oklahoma double downed and went the opposite direction.  The timing of hearing about this after session is lost on no one.

We are hearing of how business and tourism will be effected by this unacceptable, unconscionable, un-American and the opposite of what Oklahomans want.  This is a slap in the face of every Oklahoman.  Guess who the biggest card issuer is of prepaid debit cards?  The state of Oklahoma uses pre paid cards for all kinds of reasons.

I will continue to fight, there is no left or right up or down – there is wrong and right and this is plain wrong.

According to OklahomaWatch, the ERAD readers are also in use by "a joint law enforcement drug interdiction team under the Oklahoma County District Attorney’s Office".

What do you think about the program? Comment with your thoughts.

Muskogee DA Drops Forfeiture Case Against Christian Orphanage, Church, and Band

Victory: Muskogee DA Drops Forfeiture Case Against 

Christian Orphanage, Church, and Band

Muskogee, Okla.—This afternoon, Muskogee, Oklahoma, District Attorney Orvil Loge indicated that his office was officially dropping all charges against Eh Wah, a Burmese refugee he had charged with possession of drug proceeds [background stories from the Institute for Justice and the Washington Post]. He also indicated that he would drop the civil forfeiture and immediately return the money Muskogee law enforcement officials took from a group of Karen Christian refugees from Burma and Thailand. The announcement comes less than a day after the Institute for Justice announced that it was representing the innocent owners in the case.

Following the announcement, Institute for Justice (IJ) Attorney Dan Alban issued the following statement:

“We are thrilled that District Attorney Loge has dropped the criminal case against Eh Wah and offered to return the money to the band, the church and the orphanage. The intense public scrutiny generated by this outrageous case led to justice being served. Unfortunately, civil forfeiture laws allows property to be seized from innocent people every day in this country. The law allows this to occur and most people do not have the media or pro bono counsel to fight it. Absent the extraordinary circumstances of this case, that property is almost always forfeited and lost for good, even if no one is charged with or convicted of a crime.”

“Muskogee has no excuse for this gross miscarriage of justice. Based on next to no evidence, what started as an ordinary traffic stop turned into a nightmare. They turned a man’s entire life upside down. It should have never come to this. This is a clear-cut case of abuse of power.”

“Not every civil forfeiture victim is a Christian orphanage or a world-renowned Burmese Christian band, but when even their money isn’t safe, no one’s money is safe from forfeiture abuse. This case illustrates that civil forfeiture laws are fundamentally unjust.”

IJ Senior Attorney Matt Miller added:

“Earlier this year, Oklahoma rejected a bill that would have reformed the state’s civil forfeiture laws to better protect property owners after law enforcement claimed that there was no evidence the law was being abused. This case shows that no one’s property is safe from a forfeiture system that incentivizes police to take as much cash and property as possible while making it difficult for owners of that property to fight back. Civil forfeiture needs to end, or be radically reformed. It cannot come soon enough.”

Finally, Eh Wah added:

“This was an experience that no one should ever have to live through. It felt like something that would happen in a third-world country, but not in the United States. I’m just so happy that this is over and I hope that no one else will have to go through something like this.”

          *          *          *          *          *

It's amazing how quickly justice can move when enough attention is brought to bear. It certainly makes you wonder about similar situations where money is wrongly seized, but this type of ending doesn't occur. Kudos to the Washington Post and others for shining light on this, and bringing this outcome to pass.

Mike McCarville (the "elder statesman" of Oklahoma's conservative blogosphere) has been beating the drum for quite some time now on changing Oklahoma's civil asset forfeiture laws. It's a shame that powers-that-be in the state legislature stopped State Sen. Kyle Loveless' attempts to bring much-needed reform to this issue.