OCPA column: No need for state handout to tribal government

No need for state handout to tribal government

By Jonathan Small

Oklahoma’s tribal governments have their own police forces, their own court systems, and immense wealth from casinos to pay for their public-safety responsibilities. So why did tribal entities recently seek an indirect subsidy from state government?

Lawmakers recently passed House Bill 3501, which would have required the Department of Public Safety to “recognize and act” upon a report of conviction from any tribal court in Oklahoma.  Supporters said the bill would target drunk drivers, but tribal courts can issue orders regarding issues other than DUI violations, and it appears the legislation could have required state police to carry out a wide range of orders on behalf of tribal governments.

Fortunately, Gov. Kevin Stitt vetoed the bill, writing that it would have required state law-enforcement officials “to carry out tribal court adjudications, no questions asked.” That’s worth stressing because tribal courts can issue orders that might not pass legal muster in Oklahoma’s state court system.

To cite one prominent example, the Cherokee council approved an “Anti-Harassment Act” that allows tribal officials to obtain tribal-court ordered restraining orders against any individual who “annoys” officials, apparently including through social-media posts made “over time, however short.”

State budget agreement announced; includes inflation relief rebate up to $150 per family

State budget agreement reached

Republicans prioritize savings, inflation relief, police, economy & more

OKLAHOMA CITY (May 17th) – Historic state savings deposits and more money returned to taxpayers highlight the Fiscal Year 2023 state budget agreement, which also funds law enforcement at record levels, eliminates the years-long developmentally disabled services waiting list, fights federal overreach, and makes generational investments in economic development.

Legislative leaders on Tuesday announced plans to send the agreement, which continues to fund education at the highest levels in state history, to Gov. Kevin Stitt this week for approval.

Stitt activates OK National Guard to assist OHP with State Capitol security

GOVERNOR STITT ACTIVATES OKLAHOMA NATIONAL GUARD AT STATE CAPITOL 

OKLAHOMA CITY (Jan. 15, 2021) – Governor Kevin Stitt announced today that out of an abundance of caution he is activating over 75 members of the Oklahoma National Guard (OKNG) to assist local law enforcement should any protests at the State Capitol, or other locations, turn violent. 

"I support the right for Oklahomans to peacefully demonstrate, but we will not tolerate violence or damage to property," said Gov. Stitt. "At the request of the Oklahoma Highway Patrol, the National Guard has been authorized to provide support as needed. These hardworking Oklahomans are our friends and neighbors who step up in times of need. Any violence and damage to property goes against the Oklahoma Standard and is a distraction designed to keep us from uniting together."  

Members of the guard will be activated from Saturday, Jan. 16 to Thursday, Jan. 21. No specific, credible threats have been identified in Oklahoma, but increased safety measures are being taken in a proactive response to intelligence shared by federal law enforcement regarding state capitol buildings across the country. 

State Sen. Bergstrom files bill to unify public safety agencies

Oklahoma Public Safety Unification Act of 2020 is filed

Sen. Micheal Bergstrom, R-Adair, has filed Senate Bill 1602, also known as the Oklahoma Public Safety Unification Act of 2020, which would create the Oklahoma Public Safety Agency.

The new agency would unite state law enforcement and public safety agencies to more efficiently and effectively enforce public safety laws and deter crime. The following entities would become divisions within the new Oklahoma Public Safety Agency:

• Oklahoma Highway Patrol (OHP)
• Oklahoma State Bureau of Investigation (OSBI)
• Oklahoma State Bureau of Narcotics and Dangerous Drugs (OBN)
• Council on Law Enforcement Education and Training
• State Fire Marshall
• Homeland Security
• Oklahoma Emergency Management
• Alcoholic Beverage Laws Enforcement (ABLE)

All functions currently performed by the OHP, OSBI, OBN, Office of the State Fire Marshall, Oklahoma Office of Homeland Security and Oklahoma Department of Emergency Management would remain under their respective divisions preserving the historic identity, specialization, and mission of each original agency. 

“The purpose of this legislation is to improve the efficiency and effectiveness of our state law enforcement and public safety agencies serving and protecting Oklahoma citizens,” Bergstrom said. “This unification will allow for better communication between the state and local law enforcement agencies and departments, as well as between these state entities and the general public.”

Under SB 1602, the director of the Oklahoma Public Safety Agency would be appointed by the Governor and approved by the Senate. The director would have the power to affirm current directors or chiefs of the divisions within the agency, or appoint a new director or chief if the position is vacant.

Director duties would also include formulating and implementing a unified law enforcement and public safety strategy, administering budgetary activities for each division, preparing rules and regulations necessary for the agency to operate, and entering into contracts with public or private organizations for research and special projects, among other duties.

The bill would also create the Oklahoma Public Safety Agency Revolving Fund, consisting of state and federal funds for the agency to operate. All money in the account would be budgeted and appropriated by the Oklahoma Public Safety Agency.

Bergstrom said while this legislation is unifying our law enforcement entities under one agency, it is not expanding the state’s police powers.

“By unifying these agencies, we are making them more efficient and allowing them to better provide the services our citizens deserve and depend on,” Bergstrom said. “Developing unified training for our law enforcement officers will elevate their skills and professionalism.”

SB 1602 would also create the Investigation Oversight Commission, which would consist of seven members including the Oklahoma Attey General; Chief Justice of the Oklahoma Supreme Court; Oklahoma State Auditor and Inspector; one member appointed by the governor; one member appointed by the President Pro Tempore of the Senate; one member appointed by the Speaker of the House of Representatives; and one member appointed by the District Attorney’s Council.

The Investigation Oversight Commission would have the ability to investigate political and public corruption.

“Oklahoma’s state law enforcement is fragmented,” Bergstrom said. “The reason I first became interested in this unification project was because of a conversation I had with a police officer in my district about the issues he saw in our law enforcement agencies and the way they work together. This legislation is aimed at fixing this problem. As this plan moves forward, I intend to ensure our law enforcement stakeholders, sheriffs and police chiefs are at the table to make this the best bill possible for Oklahoma and our law enforcement agencies."

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.

State Capitol Security Fails FBI Test

According to sources who work inside the State Capitol building in Oklahoma City, a test of Capitol security today by the FBI showed much to be lacking.

A suspicious package was left on the first floor rotunda; the Oklahoma Highway Patrol, which runs the security at the Capitol, discovered the package and reported that it appeared to be a bomb.

Word is that this was a test of the security measures at the Capitol by the FBI, and Capitol security failed the test. Reportedly, an agent brought the mock bomb through the main east entrance of the building, and made it through security without being detected or stopped. The Capitol has been buzzing with OHP officers ever since the incident.