The Great Roll Call Roadtrip: Minnesota's Civil Forfeiture Law: A Recipe for Corruption and the Exploitation of Vulnerable Citizens

Civil forfeiture laws have been around for a long time and have proved quite successful in combating pernicious societal evils like organized crime (e.g. RICCO). So it seemed just common sense for law enforcement types and state legislatures around the country to expand a successful crime fighting tool to other stubborn problems and challenges to public safety. The logic went something like "not only does it take away valuable resources used by criminals thereby helping to prevent future crime, but it turns those resources over to the state where it can be applied to help alleviate tight budgets in state and local government".

A perfect pancea? Hardly. Unintended consequences? You bet. I would even go further and say that the unintended consequences of official corruption with its consequences of fostering public disrespect for law enforcement and loss of confidence in the judiciary are far worse than the original problem it was designed to combat. It also creates an open season on some of our most vulnerable citizens, the poor and chemically dependent, while reinforcing corrupt police tactics with an incredibly lucrative reward system and a flood of cash. In austere times, the "free money" easily finds its way into the pockets of individual officers, agents and deputies as well as the intended beneficiaries: strapped government budgets.

But hey, we are only talking about dirt balls and drug addicts right? Unfortunately nothing could be more wrong. A society is judged on how well it treats those without a political voice and unable to protect themselves, especially when nobody is looking. Hopefully this article will shine a spotlight on a known and growing problem with Minnesota's Controlled Substance Civil Forfeiture laws and specifically the use of bad appellate case law which actually promotes and rewards the worst in police behavior and poses a distinct threat to the constitutional rights of all citizens.

I will give you a very credible hypothetical. You and your passenger are driving through a sparsely populated region of North Central Minnesota minding your own business when you find yourself being pulled over by local police or deputy sheriff. It could be for something as minor as speeding, an equipment violation or no violation at all. In Minnesota, like most jurisdictions in the United States, law enforcement does not need probable cause or even criminal activity in order to pull someone over. An officer is given wide discretion to use his experience and professional hunches to justify a stop as long as the officer can articulate some kind of reason, not discriminatory in nature , that criminal activity may be afoot. Well guess what, you put this kind of unbridled power in the hands of people who may not be the brightest bulbs in the pack but have a real penchant for being control freaks and you have got a real recipe for the violation of constitutional rights.

So the officer calls for backup and then separates you and your passenger and starts playing 20 questions. Since most people don't rehearse what they should tell the police if they are pulled over, even the flatest of feet can create a discrepency in the stories of two, even innocent, members of the public.

Focusing on slight differences in semantics, our erstwile officer expands the scope of the traffic stop on the basis that the driver and passenger's stories don't jib. Based upon their training, law enforcement officers are taught that they must be trying hide some illegal activity, perhaps drug possession. Thus under this scenario every routine traffic stop becomes open season on the public all because of poor police training and the incentives created by the civil forfeiture laws.

Think this is an exageration? This was an actual case I handled and is repeated thousands of time a day through out the country. The time to repeal most civil forfeiture laws is long overdue except in the case for which was originally intended, to combat organized crime.

The expansion and widespread use of the civil forfeiture laws to everyday, run of the mill drug possession cases has done much more harm than good and created the predatory mentality that is at the heart of everything that is wrong with law enforcement practices in this country.

Remember the disasterous Metro Gang Strike Force? In the wake of rampant corruption and criminal behavior committed by members of the task force a review panel was created by the Commissioner Of Public Safety to make findings and recommendations. The panel, consisting of then former Assistant U.S. Attorney (and later U.S. Attorney), Andrew Luger and retired FBI agent John Egelhof, made the following recommendations as to the forfeiture law back in 2009:

"Forfeitures as a Funding Mechanism. We recommend against the use of forfeitures

as a significant source of funding for law enforcement operations. No law

enforcement officer's employment or salary should be dependent upon seizures or

forfeitures. The same should be true of any law enforcement agency. This is

consistent with the guidance of the Department of Justice's "National Code of

Professional Conduct for Asset Forfeiture."

The Forfeiture Statute. Under Minnesota's forfeiture laws, officers can seize funds

and other valuable items under circumstances that create a presumption that the items

are subject to forfeiture. This presumption requires an individual to challenge the

forfeiture and establish that the items were not related to criminal activity. If no

challenge is made, no lawyer reviews the facts of the case and the items are cleared

for forfeiture. In some of the cases described in this Report, individuals retained

lawyers and are challenging the attempt to forfeit their funds. Based on what

occurred at the Strike Force, we have concerns about the breadth of the forfeiture

statute and the lack of legal oversight of the process. We recommend that the

legislature, in conjunction with law enforcement officials, prosecutors and defense

lawyers, consider whether Minnesota's forfeiture laws provide sufficient oversight

and protection for the rights of individuals and whether principles or guidelines

binding on law enforcement are warranted given the practices detailed in this Report.

Appointment of a Special Master to Handle Remaining Forfeiture Funds. The

Panel has been informed that there are approximately one million dollars remaining in

forfeiture funds in various Strike Force law enforcement accounts. Because proper

notice has not been provided in some cases and the funds have not been submitted for

forfeiture, and for other reasons, every effort should be made to return some of these

funds. In addition, a number of vehicles have been seized without proper notification

and have not been submitted for forfeiture. These vehicles will have incurred

significant towing and storage fees that the owner should not have to pay. Moreover,

the Legislative Auditor has recommended that funds be paid to the Attorney General

pursuant to the statutory requirement that the Attorney General receive 20% of seized

funds it handled for the Strike Force. We recommend the appointment of a Special

Master with authority to locate property owners, return property not lawfully forfeited

to them (including funds, vehicles and other items), pay for fees incurred on vehicles

and determine how much needs to be paid to the Attorney General. The Special

Master should be given a budget and a time frame to complete these tasks."

As you can see from the above recommendations, there has been concern over law enforcement practices with respect to civil forfeiture laws for a long time. The two most important things that we must do as a society when it comes to law enforcement in this country are to change the rules with respect to the use of lethal force by peace officers from reasonable to necessary and the elimination of the incentive for police officers to view the public as streams of income instead of what they really are: taxpayers who pay their salaries to protect and to serve them, the public.

Here is how Minnesota's civil forfeiture law and practice is graded on a report card compiled by the Institute for Justice (to see the study's methodology click here)