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In spite of reform efforts, Minnesota law enforcement’s use of civil asset forfeiture hasn’t gone down

Civil asset forfeiture shows no sign of abatement in Minnesota
REUTERS/Mariana Bazo
Last year, forfeitures in Minnesota appeared to have jumped over the 7,000 mark, with $7.4 million in proceeds.

On Oct. 29, 2015, U.S. Postal Service inspectors at the Minneapolis-St. Paul International Airport found a package containing 18 pounds of marijuana, addressed to a man in Wright County. They enlisted the help of the county sheriff’s office to arrest the St. Michael man at the address, and seized more than $401,000 in cash found at his house.

“This was our largest seizure ever. Normally (in) Wright County, we don’t have a lot,” said Wright County Sheriff Chief Deputy Todd Hoffman.

A big bust like the one in Wright County is cause for celebration: a large pile of cash like that is a visible sign of a job well done. But there’s another cause for a department to celebrate making a big seizure like this: in Minnesota, local law enforcement agencies get to split the proceeds with the county attorney’s office and the state, under civil asset forfeiture statutes. The more than $401,000 bust was the biggest-ticket forfeiture reported in Minnesota last year and the biggest ever for Wright County.

Civil asset forfeiture is controversial in Minnesota: opponents argue it creates incentives for law enforcement to seize assets to supplement their departments’ budgets. Proponents, many of them in law enforcement, disagree, arguing it’s a way to take away the instruments and spoils of crime and funnel them back into the community.

Nearly a decade ago, revelations that the Metro Gang Strike Force, a since-shut down law enforcement agency whose job was to crack down on gang crime in the Twin Cities, was seizing property from people never convicted of a crime (among other bad behavior) put legislators on a mission to reform the law so such abuses of it didn’t happen again.

In 2010, the state tightened reporting requirements and prohibited forfeited property to be sold to members of law enforcement, employees and their families, among other measures. In 2014, legislation required a conviction for asset forfeiture in drug cases and drive-by shootings. And this year, the legislature passed a law protecting vehicle owners whose cars are forfeited after being used by someone else in drunken driving incidents.

Despite the reforms, data show that the number of civil asset forfeitures conducted by Minnesota law enforcement agencies isn’t going down.

What the numbers don't say

For the most part, recorded civil asset forfeiture incidents in Minnesota have stayed steady:  about 6,000 forefeitures per year since 2011, with total proceeds around $6 million, according to annual reports by the Minnesota State Auditor’s Office. Last year, forfeitures appeared to have jumped over the 7,000 mark, with $7.4 million in proceeds.

Net proceeds from civil asset forfeitures by year, 2011-16
Because forfeitures are reported to the State Auditor's Office after "final disposition," incidents may not be reported in the year in which the assets were seized. Proceeds are divided between law enforcement, county attorney's offices and the state general fund.
Source: Minnesota State Auditor

While that looks like a jump, we can’t be sure it means there were more asset forfeitures in 2016 than in previous years. That’s because asset forfeitures are recorded in the year of “final disposition,” when officials are finished processing the property through the system. That can take a while — sometimes a year or more — as some is held as evidence, and other times, agencies collect items for a period of time for having a big auction.

The data doesn’t include every asset forfeited in Minnesota, either. The report from the state auditor’s office details asset forfeitures by Minnesota law enforcement agencies under state law. These include forfeitures by local police departments, county sheriffs’ offices, drug task forces and state agencies like the State Patrol and the Department of Natural Resources. They do not include asset forfeitures handled under federal law, such as those made by the Federal Bureau of Investigation and the Drug Enforcement Administration. Additionally, three law enforcement agencies, the Cosmos Police Department, Minnesota Financial Crimes Task Force and Prairie Island Indian Community Police, did not file reports to the State Auditor’s Office.

But those caveats aside, the data do allow us to draw some conclusions. “What we do know is that the number of forfeitures is not going down,” State Auditor Rebecca Otto told MinnPost. “They fluctuate but this year it appears there were more (forfeitures) in the calendar year.”

What gets forfeited, why and by whom?

In 59 percent of forfeiture incidents reported in 2016, it was vehicles, including cars, trucks, motorcycles and ATVs. In 28 percent of instances; cash. Eleven percent of the time, it was guns, and 1 percent of cases involved other property.

In the majority of the cases, alcohol or drugs were involved, but property was also forfeited in fleeing, prostitution, robbery/theft, weapons, assault, burglary and other crimes.

Forfeitures by associated criminal activity
Because forfeitures are reported to the State Auditor's Office after "final disposition," incidents not be reported in the year in which the assets were seized.
Source: Minnesota State Auditor

Many of the agencies reporting the most forfeitures in Minnesota in 2016 are among the state’s largest.

Agencies with more than 100 forfeiture incidents reported in 2016
Because forfeitures are reported to the State Auditor's Office after "final disposition," incidents may not be reported in the year in which the assets were seized.
Source: Minnesota State Auditor

What happens to the property varies: In some cases, such as a 2014 Chevy Silverado seized by the Crystal Police Department associated with a DUI, the department kept the item. Same with a Polaris ATV seized by the Morrison County Sheriff’s office in a DUI incident and a 22-caliber gun seized by the Alden Police Department coinciding with a drug crime.

Other outcomes for forfeited property include the items (or some proceeds from their sale) being returned to the owner or lienholder, and in others, they are destroyed, or sold with the proceeds going back to government agencies. Such was the case when a 2007 Toyota Prius seized in a DUI incident was sold by Eden Prairie Police for proceeds of about $3,500.

Typically 70 percent of proceeds go to the law enforcement agency, 20 percent goes to the county attorney’s office and 10 percent goes to the state’s general fund.

‘Policing for profit’?

The division of proceeds is something critics of Minnesota’s civil forfeiture laws take issue with. They say the fact that law enforcement and county attorneys stand to benefit from forfeiture creates a perverse incentive to be aggressive about forfeiting property. That makes police more likely to initiate forfeitures, according to critics, and gives county attorneys reason to seek charges with a forfeiture component.

“It’s a substantial amount of money,” said Lee McGrath, the managing attorney at the libertarian Institute for Justice’s Minnesota branch, which has advocated for asset forfeiture reform for many years.

Some states have tried to remove that conflict of interest, real or imagined, from the equation by funnelling all of the proceeds from asset forfeitures to other government agencies, such as a city or state general fund. Diverting the proceeds to the state’s general fund has been proposed in Minnesota by the American Civil Liberties Union.

Members of the law enforcement community tend to disagree with the characterization of forfeitures as a way to boost department budgets.

“The ’policing for profit’ comment comes up once in awhile and it’s absolutely ridiculous. It’s borderline offensive because it’s essentially implying that we’re out to grab money,” said Shakopee Police Chief Jeff Tate.

Proceeds from asset forfeitures by Shakopee Police, before being divided with the county and the state, totaled $74,216 in 2016.

“It has had a positive impact on our budget, but it is, in the overall scheme of the budget, small. The smaller the agency, the bigger that impact’s going to have,” Tate said.

Tate said he understands reforms passed in recent years, but hopes asset forfeiture laws don’t get tightened further.

He said the department is restricted to using the funds for things like community education, training and prevention. The Shakopee Police Department, for example, offers $3,000 in scholarships for residents who seek treatment for drug or alcohol abuse. The department also paid for the Twin Cities’ Climb Theatre to perform an educational play about making good choices in Shakopee schools. Tate said if you looked around the state, you would find similar programs in other jurisdictions funded with asset forfeiture money. Wright County uses its asset forfeiture funds for DARE programs and bought an unmanned aerial vehicle to help them find lost and missing people.

Tate recalled a drug bust by Shakopee Police last month that turned up 28 grams of heroin and about $9,600 in cash. The money seized in drug busts like this, he said, should be put to use to reduce drug crimes in the community and for repeat DUI offenders, as department data shows taking away cars reduces drunk driving recidivism overall.

Is it fair?

Another point of contention for civil asset forfeiture: how fair is the process?

More than just seizing the instrument of a crime and its proceeds, Brad Colbert, resident adjunct professor of law at Mitchell-Hamline School of Law with experience as a public defender, said he believes civil asset forfeiture has come to be used as a punishment.

“No one has a problem with chasing assets of Bernie Madoff, that makes perfect sense. But when they’re taking cars from people who get a DUI, I think that’s when they start using it more extensively,” he said.

In Minnesota, forfeitures often happen through an administrative process, and challenges must happen in civil court, which advocates say puts too much burden on property owners to challenge forfeitures if they believe their stuff was wrongfully seized.

Data from the state auditor’s office show most people whose assets are forfeited do not contest the forfeiture. Since the average value of assets in a forfeiture is less than $2,000, it’s often not worth the cost to hire a lawyer to fight it in civil court, where no public defender is provided, McGrath said.

McGrath would like to see a criminal asset forfeiture process adopted in Minnesota. In states with criminal asset forfeiture processes, such as New Mexico and Nebraska, the forfeiture goes through the criminal court process along with criminal charges against the defendant.

“It would require the prosecutor to file forfeiture charges in the same ... criminal complaint against the individual so the two would walk together, the criminal charge and the subsequent litigation of the property,” he said.

Tate disagrees that the process is unfair. He said law enforcement shares in the burden of proof, and that those whose assets are seized have ample opportunity to challenge forfeitures in court.

“We have to prove that this is tainted money, that it’s associated with the case, and this individual is going to have to be convicted of the charge,” in order for the forfeiture process to go through, Tate said.

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Comments (4)

Data

Is there any data on whether the money/property being collected comes as the result of convictions? The change in the law was meant to end the practice of seizing assets without a conviction - is the law being ignored? Are there loopholes being used? Or are they just seizing more money/property following convictions?

conflict of interest

Within the legal profession, there is great care to make sure that there not only is no actual conflict of interest but no possible perception of a conflict of interest. For this reason, a relative of a county attorney or sheriff charged with a crime will have the case referred to a different county for prosecution. There's no reasonable excuse for not having a related standard about conflict of interest in pursuing forfeitures. The ACLU's proposal that the seizing police agency or prosecuting county should receive no financial reward from a conviction should be a no-brainer, and libertarians (recognizing big government at its worst) are already on board as well.

Secondly, it should not be difficult to distinguish property used in the commission of a crime from property obtained as a result of the crime. As stated, taking cars from drunk drivers is different from taking back money fraudulently obtained. The former ends up having significant discriminatory impact given that both squad car deployment patterns and profiling create inequities in who is most likely to end up investigated for DUI.

Otherwise known as...

Civil forfeiture is otherwise known as "Guilty before proven innocent"...

Maybe the best reform for asset forfeiture

Would be to have the proceeds go to pay public defenders....