Civil Forfeiture in Minnesota

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1 Civil Forfeiture in Minnesota Lee McGrath Institute for Justice April 17, 2015 Approved CLE Event Code:

2 Agenda: Civil Forfeiture I. Institute for Justice II. Incentives III. Design and perspectives IV. History V. Conclusions VI. Q.& A. 2

3 Institute for Justice Libertarian public-interest law firm with 45 lawyers in seven offices. Founded in 1991 Supported by 8,000 donors. We don t charge our clients. Constitutional rights: Speech Economic Liberty Property Misuse of eminent domain, forfeiture and other governmental powers. Defend school choice programs. 3

4 IJ believes Civil Society Big Families Churches Markets Private organizations Friends Schools Media Government Limited: Protect people and property from crime 4

5 IJ s legal view Institute for Justice: People enjoy a presumption of liberty under the law. More popular counterview: Laws enjoy a presumption of constitutionality. 5

6 Part II: Forfeiture s Incentives Forfeiture is One of the Biggest Issues Today Involving Property and Due Process Rights

7 State Law Forfeiture in Minnesota (2013) Forfeiture: Property seized: Vehicles 58% Cash 28% Firearms 13% Crimes: Drugs 46% DUI 45% 7,000 incidents $8 million Average Seizure: $1,408 7

8 Federal Forfeitures in Minnesota (2013) Total property seized: $1,800,000 Largest collaborations: West Metro Drug Task Force $342,000 Hennepin County Sheriff's Office $157,000 MSP International Airport Police $139,000 Saint Paul Police Department $137,000 8

9 Incentives Forfeiture proceeds supplement official budgets State forfeiture Up to 70% to police and sheriffs budgets and Up to 20% to prosecutors Federal forfeiture Up to 80% to police/sheriffs 9

10 10

11 One LEO s View 11

12 Part III: Forfeiture s Design and Perspectives.

13 Design: Two-Track Process Person enters criminal justice system. Property enters civil system. In rem jurisdiction ( against the thing. ) Legal fiction that property can be found liable Responsibility for filing civil claims varies: Prosecutor in DUI cases; Suspect who owns property in drug cases; or Innocent owner claimant in DUI and drug cases; 13

14 Perspective: Police and Prosecutors Police do seizures Certainty level: On streets Based on probable cause 35% Can call either state or federal prosecutor triggering application of different criminal and forfeiture laws. Prosecutors do forfeitures In court rooms Legislators sets burden of proof: Prosecutor must prove claim or Property owner must disprove claim Legislators sets standard of proof: Preponderance of the evidence 51% Clear and convincing evidence 70% Beyond a reasonable doubt 95% 14

15 Perspective: Defense attorney Suspect enters criminal justice system. Government has burden to prove crime. Standard of proof is beyond a reasonable doubt. Property enters civil system. Public defender cannot represent property in civil court. Different burdens and standards of proof Do legal costs exceed the property s value? 15

16 Perspective: Two property owners Suspect Was the property an instrument of the crime? Were the proceeds derived from the crime? Innocent owner claimant Spouse, relative, friend, bank, leasing, or rent-a-car company Did innocent owner claimant: Consent to the property s misuse? Know about the property s misuse? 16

17 Side-by-Side: Constitutional Protections Track 1: Crime Miranda warnings Right to counsel Prompt probable-cause hearing/grand jury Process: Criminal procedure Burden: Guilt beyond a reasonable doubt. Presumption of innocence Track 2: Civil Forfeiture None None None Process: varies by type of crime Burden: Clear and convincing* Burden on innocent owner claimant to prove lack of knowledge or consent 17

18 Part III: History How did we get here?

19 History British Navigation Acts of the mid-17 th century. King prosecuted ships and cargo. Owners were beyond personal jurisdiction. Practical necessities of enforcing admiralty, piracy & custom laws. A ship is the most living of inanimate things. It is only by supposing the ship to have been treated as if endowed with personality, that the arbitrary seeming peculiarities of the maritime law can be made intelligible. Oliver Wendell Holmes, Jr., The Common Law 25 (1881). 19

20 History of Forfeiture in U.S. Customs Act of July 31, 1789 first used forfeiture in U.S. Owners beyond jurisdiction. National Prohibition Act extended forfeiture to include instrumentalities of crime: vehicles. Comprehensive Drug Abuse Prevention & Control Act of 1970 Amended in 1978 to provide for civil forfeiture of: All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter 20

21 History of Forfeiture in U.S. Proceeds realized from federal forfeitures were deposited in the general fund of the U.S change: Funds go to Justice Department's Assets Forfeiture Fund and the Treasury Department's Forfeiture Fund. Usable for forfeiture-related expenses and various law enforcement purposes. 21

22 History of Forfeiture in Minnesota Forfeiture in Minnesota was unremarkable until 2009 Scandal of Metro Gang Strike Force. Sworn officers repeatedly took for their own personal use property seized during searches; Officers and family members purchased, at low prices, property from evidence room including flat screen televisions, jet skis, a trailer and other items; and Substantial quantities of evidence went missing. 22

23 History of Forfeiture in Minnesota Strike Force used saturation details where suspected gang members congregated. Later included stops of individuals with no connection to gang activity and seizures of money and property. Strike Force officers began to seize funds from those stopped, regardless of any intent to file charges against the people stopped and without regard to whether the funds could reasonably be connected to illegal activity. Source: 23

24 Laase v Chevrolet Tahoe 776 N.W.2d 431 (Minn. 2009) Mr. David Laase was asleep when his wife called about 1 a.m. on May 17, 2006 Mrs. Jean Laase was stopped in the early morning on suspicion that she was DWI. Mr. and Mrs. Laase owned jointly the 2007 Chevrolet Tahoe. They shared the vehicle, although he was the primary driver. Each had a set of keys. Ms. Laase was arrested, charged and pleaded guilty to second degree criminal test refusal under Minn. Stat. 169A.20, subd. 2. (It is a crime for any person to refuse to submit to a chemical test of the person s blood, breath or urine). Sept. 28, 2006, the district court convicted Ms. Laase of this offense and imposed sentence. Isanti County seized the 2007 Chevrolet Tahoe that Ms. Laase drove. 24

25 Laase v Chevrolet Tahoe Holding Innocent-owner defense does not apply in a case of joint-ownership of a vehicle. If one of the joint owners is convicted. 25

26 Laase v Chevrolet Tahoe Holding While Mr. Laase may be an innocent owner, Ms. Laase is not. Because Ms. Laase is both an owner and the offender, we hold that the innocent owner defense does not apply. The vehicle was properly forfeitable. We recognize the result in this case may be open to question on policy grounds. We do not disagree with Justice Paul Anderson s view about the importance of private property rights. 26

27 Three Rounds of Legislative Changes 2010 Reporting of all seizures Petition to prosecutor for mitigation; and Increased access to conciliation court; Hennepin County Conciliation Court s forms and video: goo.gl/lmrxws 2014 Prerequisite of conviction/admission; and Switch burden of proof in drug cases. 27

28 Garcia-Mendoza v Chevrolet Tahoe MN Supreme Court adopts holding in One 1958 Plymouth Sedan v. Pennsylvania 380 U.S. 693 (1965) Court issues unanimous decision on August 20, 2014 Illegally seized evidence must be suppressed in civil forfeiture cases. IJ s amicus brief at: 28

29 2015 Proposed Legislative Changes SF384/HF456 Innocent owner reforms Addresses Laase v Chevrolet Tahoe Shifts burden of proof to state Defines actual and constructive knowledge. SF385/HF415 Proceeds reporting and restrictions Requires reporting of use of proceeds Prohibits using proceeds for salaries, benefits and overtime. 29

30 Nationwide: Legislative Reforms Landmark reforms: End civil forfeiture. Replace it with criminal forfeiture; Eliminate profit incentive; and Limit participation in federal programs; Major reforms: Restore the presumption of innocence for property of suspects and innocent owner claimants; Provide for prompt hearing; and Provide for counsel. 30

31 Public Opinion Criminal conviction should be required before losing property. Law enforcement should be held to beyond a reasonable doubt standard to take property through forfeiture. Property owners should be presumed innocent and government should have to prove owner s guilt 31

32 Public Opinion Law enforcement agencies should not be allowed to keep property they take for their own use. It should be placed in a state general fund or some other neutral account State and local agencies should not be allowed to take property under federal law to make civil forfeiture easier and receive more in proceeds than under state law. 32

33 IV. Conclusion

34 Not Just Bad Apples Incentives Matter 34

35 FACT 35

36 36

37 INSTITUTE FOR JUSTICE Lee McGrath Institute for Justice 520 Nicollet Mall-Suite 550 Minneapolis MN (612) John Oliver's show on HBO: 37

38 38

39 Innocent Owner Claimants Burden of Proof 39

40 40

41 I 41

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