In the summer of 2009, the Twin Cities area Metro Gang Strike Force was found to have been taking property, including cars, cash, jewelry and televisions. They did not take this property as evidence of a crime, but rather for funding their operations. The FBI is now investigating what happened.
This behavior was an extreme and, most likely, illegal use of a power the State of Minnesota has granted its law enforcement officials: the power of seizure and forfeiture. The use of seizure and forfeiture has grown dramatically in recent years, and now accounts for approximately $5,000,000 in law enforcement funding. The use of seizure and forfeiture has grown dramatically in recent years. From 2000 to 2008 the statewide reported income from forfeiture has grown 164%, the number of seizure/forfeiture incidents has grown 193% and the number of agencies using forfeiture has grown 436%. The scandal and increased use warrant a close look at this police power.
The seizure and forfeiture laws are complicated and vague. The worst part is administrative forfeiture, where there is no underlying conviction or arrest. Administrative forfeiture turns the presumption of innocence on its head and creates a conflict of interest for law enforcement.
Under criminal law, a person is innocent until the state can prove guilt beyond a reasonable doubt. Under tax law, the IRS must write to you, audit you, and allow you a number of appeals before you have to pay the taxes they claim you owe. However, under Minnesota's administrative forfeiture laws, the police can keep the property they take under the DWI or controlled substance law unless the owner sues them and wins the property back. And this must be done within 30 days for a DWI offense and 60 days for a controlled substance offense. And an innocent owner cannot sue for court and attorney fees.
Under the forfeiture laws, law enforcement can seize money (or other property) in connection with drug offenses or certain DWI offenses. They issue a complicated notice form. If the owner does not sue to regain their property, law enforcement keeps 70%. 20% goes to the appropriate prosecutor, and 10% goes to the State's general fund. This creates a conflict of interest.
When an official has a conflict of interest that means the official must choose between serving themselves and serving their constituency. Usually, laws prohibit officials with a conflict of interest from making decisions on the matter where they have a conflict. However, the administrative forfeiture laws are both a crime fighting tool and a fundraising tool, so the officer cannot ignore the crime because of the potential for financial gain. But it still can influence their use of power.
In a DWI case, the officer may choose to seize an old car for forfeiture which is fully paid for and will net the department $3000 but not seize a car for forfeiture which is worth $10,000 but has a $9,000 loan on it. The amount of money the officer may raise can influence their enforcement of the law.
The ACLU-MN supports a bill in the Legislature to make forfeiture serve criminal justice. To that end, the bill would require a criminal conviction and a direct connection between the property and the crime to allow forfeiture. Furthermore, the proceeds of forfeiture would go into a fund controlled by elected officials to be appropriated out to fighting crime based on need, not on who seized the property.
This is a complicated topic, and it affects civil liberties under the Fourth, Fifth, Sixth, Seventh and Eighth Amendments to the Constitution. We will be contacting you with more talking points and asking for your support in the Legislature as this issue progresses. Stay tuned for an interesting legislative session.
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