One State Is Making It Easier for Government to Take Property

Melissa Quinn / June 15, 2016

Over the last two years, the shortfalls of the civil forfeiture system have garnered attention from both the media and state and federal lawmakers as more and more people who had property seized by police have come forward—the vast majority of whom were never charged with a crime.

In that time, state legislatures, in particular, have tackled the issue. This year alone, 22 states saw legislation addressing civil forfeiture, and at least eight states passed bills reforming their civil asset forfeiture laws to varying degrees.

In seven states, 11 bills are still pending, according to The Center for Public Integrity.

And in Washington, D.C., Congress took a step forward in reforming federal civil forfeiture laws when bipartisan groups of lawmakers in both chambers introduced the Due Process Act, which would make it more difficult for law enforcement to seize property from innocent Americans.

Despite the action in many state houses and the federal government, one state not only resisted efforts to reform its civil forfeiture laws, but recently made it easier for police to seize money by purchasing machines that allow officers to swipe prepaid debit cards and gift cards and seize the money stored on them.

And that state is Oklahoma.

“Every step of the way, [civil forfeiture] has been fraught with abuse, and the system is broken,” state Sen. Kyle Loveless, R-Oklahoma City, told The Daily Signal. “There hasn’t been any good coming out of this other than it’s raised the level of discussion around the issue.”

Civil forfeiture is a legal tool that gives law enforcement the power to seize property if they suspect it’s tied to a crime. Opponents of civil forfeiture have been calling for the system to be reformed, as innocent people have had cash or property seized, yet were never charged with any wrongdoing.

Furthermore, opponents say current civil forfeiture laws put the burden on the property owner instead of the government to prove their cash, cars, or property wasn’t tied to a crime at all.

In the last six months, Oklahoma has found itself at the center of controversy surrounding its use of civil forfeiture.

First, Oklahoma’s legislature rejected legislation spearheaded by Loveless overhauling its civil forfeiture system.

Then, just after Loveless’s bill was killed in committee, deputies with the Muskogee County Sheriff’s Department seized more than $53,000 from one of the most sympathetic forfeiture victims to emerge thus far: a Burmese Christian rock band raising money for an orphanage in Thailand and a nonprofit Christian college.

And most recently, it was discovered that the state Department of Public Safety had purchased Electronic Recovery and Access to Data (ERAD) card readers, which allow law enforcement to learn the balance of prepaid debit cards and gift cards, seize the money stored on the cards, or freeze the accounts if they believe it’s tied to criminal activity.

“I believe we have a good government, and law enforcement for the vast majority are doing a good job,” Loveless said. “But the system they’re working in is clearly broken. I think Oklahomans are getting past the tipping point.”

Resistance

Oklahoma kicked off 2016 with intense debate after Loveless introduced comprehensive legislation reforming the state’s civil forfeiture laws.

The Republican lawmaker’s legislation first required law enforcement to secure a conviction before forfeiting cash, cars, and property from people.

Such a provision has been included in multiple bills reforming civil forfeiture laws, including in legislation recently passed in Maryland, Nebraska, and New Hampshire.

However, in Oklahoma, law enforcement pushed back on the requirement.

“All these states have done that in the last year,” Loveless said of requiring a conviction before forfeiting property. “We’ve seen that law enforcement gets on board, but here in Oklahoma, they resist.”

Loveless’ bill also struck at the core issue opponents have with civil forfeiture: its profit incentive.

In the Sooner State, law enforcement agencies can keep up to 100 percent of the proceeds of forfeited property. But under Loveless’ plan, forfeiture proceeds would be directed to a fund controlled by a 15-member board.

That board, comprised of members of the law enforcement community and civilians, would be tasked with distributing money in the form of grants to fund drug treatment centers, drug courts, and drug interdiction efforts.

In addition to requiring a criminal conviction, other states like New Mexico, one of the first to reform its civil forfeiture laws, have eliminated the profit incentive civil forfeiture creates, since forfeiture proceeds go directly back to the law enforcement agencies forfeiting the property.

“They need to be subject to appropriation. Whether it’s the city council, the state legislature or the U.S. Congress, that money needs to go to the government, not directly to the law enforcement agency,” Hal Stratton, New Mexico’s former attorney general, told The Daily Signal. “That provides too much of an incentive to make good cops bad cops.”

Stratton originally was in favor of expanding civil forfeiture in New Mexico during the 1980s to address the crime wave, he said. But when the legislature’s civil forfeiture reform bill headed to Republican Gov. Susana Martinez’ desk last year, Stratton encouraged her to sign it.

The bill included the requirement that all civil forfeiture proceeds go directly into the state’s general fund instead of to law enforcement agencies.

“We need to structure the law to where there’s not an incentive to do bad things, and the asset forfeiture laws, the way it’s interpreted by the courts, was not in that category,” Stratton said. “It was structured for abuse.”

Back in Oklahoma, Loveless’ bill was praised by groups across the political spectrum, from the Institute for Justice, a public interest law firm that has represented many civil forfeiture victims, to the American Civil Liberties Union of Oklahoma.

But the law enforcement community mounted fierce opposition to it, arguing that reforming civil forfeiture will eliminate a vital tool officers have to combat drug trafficking and money launderers.

County sheriffs and prosecutors called Loveless a liar and a socialist, in the pocket of organized crime and a best friend to terror organizations for championing civil forfeiture reform.

Tulsa’s district attorney even warned that passing Loveless’ civil forfeiture bill would lead to headless bodies swinging from bridges.

Because of the steep opposition from law enforcement, Loveless’ bill died in the state Senate Judiciary Committee.

“If we have to balance public safety and constitutional protections, then I think law enforcement should err on the side of the Constitution instead of taking an innocent person’s stuff,” Loveless said. “The thing in my mind is the Constitution has worked for us for 200-plus years. We need to strengthen those provisions because the scale is being dramatically tipped.”

‘What Is So Special About Oklahoma?’

Following the end of Oklahoma’s legislative session in May, the debate over civil forfeiture in the state began to quiet, despite Loveless’ vows to continue his fight next year.

But earlier this month, Oklahoma Watch, a nonprofit in the state, discovered the Oklahoma Department of Public Safety purchased ERAD card readers—devices that make it easier for police to seize money stored on prepaid debit cards and gift cards during traffic stops.

Officers with the Oklahoma Highway Patrol, as well as those on a joint law enforcement drug interdiction team under the Oklahoma County District Attorney’s Office have the card readers. Oklahoma City police officers who are part of the drug interdiction team also use the ERAD machines.

The Oklahoma Highway Patrol did not return The Daily Signal’s request for comment.

The Oklahoma Department of Public Safety is paying a $5,000 implementation charge and a $1,500 training charge for the card readers to the ERAD Group, according to Oklahoma Watch.

ERAD Group, which manufactures the devices, is to receive 7.7 percent of all funds forfeited with the ERAD machines, according to its contract with the Department of Public Safety.

In addition to notifying law enforcement of the balance of prepaid debit and gift cards, ERAD card readers can also provide officers with information about any card that has a magnetic strip, which includes hotel keys, bank debit cards, and credit cards.

Lt. John Vincent, public information officer for the Oklahoma Highway Patrol, told Oklahoma Watch the machines are helping law enforcement catch up to drug traffickers, who have been loading money onto prepaid cards instead of carrying cash, and combat identity theft.

“If someone has 300 cards taped up and hidden inside the dash of a vehicle, we’re going to check that,” Vincent said. “But if the person has proof that it belongs to him for legitimate reasons, there’s nothing going to happen. We won’t seize it.”

The Oklahoma Highway Patrol obtained 16 ERAD card readers, and they were installed in May. Vincent stressed that the machines won’t be used to swipe people’s gift or prepaid cards unless the officer believes there is illegal activity going on.

Despite Vincent’s reassurances, news that the state purchased ERAD devices angered civil forfeiture opponents and has reignited debate in the Sooner State.

“This has nothing to do with public safety and has everything to do with policing for profit and making it easier to take people’s money,” Diane Goldstein, retired lieutenant with the Redondo Beach Police Department in California, told The Daily Signal. “The state of Oklahoma at this point cannot be trusted.”

Goldstein, a member of the group Law Enforcement Against Prohibition, said she wouldn’t be surprised to see college students wrongly caught in the forfeiture machine because of the devices, particularly those traveling back to school with gift cards and prepaid debit cards.

“Cases [where you find 300 prepaid cards] are the exception,” she said. “The rest of it is going to be the college student, people who can’t afford access to banks. Think about when you’re living at or below the poverty level. Prepaid cards are easier.”

Matt Miller, a senior attorney with the Institute for Justice, said more employers are moving toward paying workers on prepaid cards, which then effectively become that person’s bank account.

“When that happens, you can’t seize that cash because it’s in a bank account,” he told The Daily Signal. “Now you have this device that can access someone’s bank account with no warrant and no probable cause.”

Miller stressed that someone who had their money seized or frozen by these ERAD card readers now has to learn the complex civil forfeiture process, hire a lawyer, and mount a lengthy and expensive legal battle to prove their assets aren’t connected to criminal activity.

“As cash has become less common, police have to find new ways to get the money,” he continued. “It raises concerns because you have a private company working with the government and profiting off of it. It sounds like a red-light camera.”

Loveless, who attempted to overhaul the state’s forfeiture system earlier this year, called the use of the ERAD machines a “slap in the face” to Oklahomans.

“It’s even more troubling because we were told and they still say today that the presence of a large sum of cash is the thing that tips the scale—that no law-abiding citizen would have $50,000 in cash,” he said. “Here, they don’t have to have the cash. It’s basically taking the same law and putting it on steroids.”

Since it became public knowledge that the state had purchased and installed ERAD card readers, the Oklahoma Department of Public Safety temporarily suspended their use until its commissioner, Michael Thompson, can attend training on the devices.

Additionally, Loveless is asking Oklahoma Gov. Mary Fallin, a Republican, to intervene.

“They’re putting the burden on the individual versus the government proving it’s guilty before they take it,” he said. “Whether it’s cash or a card reader, the principle is the same. It’s the government should not be able to take your stuff without an arrest warrant, trial, and conviction.”

Though Loveless’ efforts to change his state’s civil forfeiture laws were defeated last year, he will continue pushing the state to make it more difficult for police to take property from innocent people. Loveless said he will be collaborating with law enforcement in the coming months in search of compromise and hopes to see Oklahoma joins the ranks of states who have further protected the rights of their residents.

“In Michigan, Florida, and other states, law enforcement is on board,” he said. “I want to use those models and say, ‘Why can’t we do what they’ve done? Why can’t we have that? What is so special about Oklahoma?’”