End Civil Asset Forfeiture in Oklahoma
By: Steve Byas
William Cicco left his Broken Arrow, Oklahoma, home in March 2013, and was arrested by Bixby police for driving under the influence -- he had taken a prescription painkiller medication to treat his cancer. After searching the car, they found a bag full of $15,555 in cash.
So they just took it, under what is called "civil asset forfeiture" (CAF). They assumed it to be drug profits. Under CAF, a person does not have to be convicted of any crime before law enforcement can take their property. This nefarious practice is used by both federal government officials and state and local law enforcement officers to seize property that they suspect has been used in wrongdoing -- without having to even charge a person with wrongdoing.
In contrast, under criminal asset forfeiture, the accused is afforded all the constitutional and statutory procedural safeguards available under criminal law. Before the property is forfeited, the accused must be found guilty beyond a reasonable doubt.
Civil forfeiture, on the other hand, is an assault upon the very concept of private property and the legal position that an accused person is presumed innocent until found guilty beyond reasonable doubt.
While it is true that a person who has had cash or other property taken from them may demand a jury trial in some cases, this is not true of all cases. No such right to a jury trial exists for cases involving amounts under $1500. And the burden of proof has now shifted to the person whose property was taken.
The harsh reality is that if law enforcement seizes cash, the expense of hiring a lawyer and fighting to get the money back is simply not worth it for the suspect -- the amount seized is generally less than the expenses of going to trial. Many times, a law enforcement agency does not even file criminal charges, but simply takes the cash or other property. Tom Fook, an official with the Michigan Association for the Preservation of Property, said he believed that "most" civil forfeitures in his states are little more than "curbside shakedowns," involving seizures of hundreds of dollars, when it would cost thousands of dollars for a suspect to fight to regain the money.
One argument used by supporters of CAF is that those wanting reform or abolition of this practice favor drug dealers over law enforcement. The drug problem is so severe, they argue, that law enforcement must simply have the "tools" to combat the drug kingpins. But it is unfair to charge those who wish to rein in the abuses of CAF as favoring criminals, just as it would be wrong to say those who argue for due process for accused murderers as supporting homicide.
This travesty occurs all over America, but its defenders here in our state argue that abuses of CAF are practically nonexistent. They argue that all these horror stories are drawn from other states -- not Oklahoma. I don't know if they really believe that, or if they are just lying, but they are flat wrong. The Institute for Justice, an organization which fights CAF abuses, has given Oklahoma a "D" for the lack of fairness in its civil asset forfeiture laws.
I have gathered multiple examples of unjust civil asset forfeitures here in our state. I will offer just a few to demonstrate that we have a problem -- a serious problem -- in Oklahoma.
In the case of Cicco, he was compelled to spend $3,000 on a lawyer and a bond to get his money back. "My lawyer told me the DA was stonewalling; they didn't want to give the money back," Cicco said. "I knew I wasn't going to get it unless I went through this long court battle."
In Creek County, the Goss family recalled that in March, 2012, Creek County sheriff's deputies came to their home, then proceeded to arrest them for drugs they did not have. The 62-year-old Linda Goss said that she and her husband had never done illegal drugs. One of the officers claimed he had discovered meth in their home, so they proceeded to take their firearms, fishing boat and truck, and put the Gosses in jail for three days.
They had to come up with $10,000 for bond.
Then it was learned that the officers had mistakenly raided the wrong house. The address on the search warrant was wrong. Tests showed that there were no illegal drugs in the home.
The Gosses lost their truck because they could not afford the impounding fees, and when they got their boat back it was so badly damaged it could no longer float.
James Todd was a police detective in Sand Springs, who is now a lawyer, who handles CAF cases. "It's gotten so easy for them that they're taking any money they come across." Todd says that in many instances, the owners of assets confiscated by law enforcement opt not to fight in court, especially if the amounts involved are small. It costs more to pay the court and attorney fees than to just walk away. "They really feel like they have no recourse, especially the individuals out of state."
Julius Crooks was stopped on I-40 near Hinton, Oklahoma, on his way home to California, after visiting family in Alabama. Oddly, District Attorney Jason Hicks hired a private company, Desert Snow LLC, to assist in his drug interdiction effort. Hicks' "task force" seized more than $1 million in the stops in Caddo County. The company was given 25 percent of all forfeited proceeds from the stops.
Crooks, a cousin, and a friend were traveling in a new rental car, with a paper plate, when they were pulled over. Desert Snow employee Jason Henderson questioned his having only a paper plate, and proceeded to search the car.
"They tore our whole car up . . . They just like violated all our stuff. They stepped on our food, poured out our drinks, everything," Crooks explained. "It was just crazy, like we were real live drug dealers. And I've never been in trouble with any of that."
Prosecutors claimed that traces of marijuana were in the bag with money, which they took. When Crooks asked why the money was being taken, Crooks said that the DA's chief investigator, Lewis Garrison, "got mad . . put his finger in my face and said, "You better get the hell off my freeway and right now!"
Even law enforcement officials themselves can get into problems with CAF. Stephen Mills, the chief of police in Apache, is an outspoken critic of CAF. His property was seized after an employee used it to commit an alleged crime, even though he knew nothing about it.
While Mills was in Texas, someone with a truck registered to his name was observed stealing copper wire from an oilfield site. A few days later, sheriff's deputies arrested an employee of Mills at his ranch, and seized the truck from his carport.
Mills assumed the truck was taken for evidentiary reasons, and would soon be returned. When he contacted the sheriff's department, however, he was stunned to find out they were seizing the truck under CAF!
"I spoke to several people at the sheriff's department trying to explain who I was and that it was my truck and not the ranch hand's. I was told that it wasn't my truck even if it was registered in my name . . I was told it didn't matter that I didn't have anything to do with it since the truck is considered guilty of the crime. I pointed out that I had an absolute innocent owner defense and was told, "How do we know you didn't have something to do with it? Maybe we should start looking at you.' I told them they could look all they wanted. This went on for a few weeks and then my calls stopped getting returned."
Six months later, Mills took his story to the Chickasha Express newspaper, which then called the DA's office for comment. Finally, Mills was called and told that he could pick up his truck from the sheriff's impound lot. The keys were missing, it had a broken window, a flat tire and the antenna was significantly bent.
Mills believes a criminal conviction should be required before assets can be forfeited. This is not an opinion unique or new with Mills. A provision of the English Bill of Rights, adopted in the aftermath of the Glorious Revolution in 1689, is very relevant to this issue: "Forfeitures before conviction are void."
But Chris Ross, the DA in Huges, Pontotoc and Seminole counties evidently disagrees with the English Bill of Rights. "The proposal that a conviction be necessary before forfeiture is granted is an ill-conceived notion that ignores the reality of the drug trade." He added, "Weakening Oklahoma's laws based on abuses in other states would needlessly tie the hands of law enforcement and benefit violent criminal organizations for no compelling reason."
This past session, Oklahoma's Legislature made a small move toward reform. According to this new law, judges may award attorney fees to people whose assets were unjustly seized by law enforcement. But, at the same time, the Department of Public Safety (DPS) is now preparing to take money off pre-paid debit cards of citizens who are suspected by law enforcement of doing something illegal!
Another argument for CAF is that law enforcement agencies are woefully underfunded. But that does not justify taking property from American citizens who have not been convicted of any crime. As 19th century U.S. Senator Daniel Webster said, "Good intentions will always be pleaded for every assumption of power . . . The Constitution was made to guard the people against the dangers of good intentions."
The late Congressman Henry Hyde contended that CAF is also a violation of the Eighth Amendment, which prohibits "excessive fines." He wrote, "There is little or no proportionality between the crimes alleged and the punishment imposed in most cases, citing examples of entire hotels being taken from the owners simply because the gangs used a room for drug transactions, or apartment houses being confiscated because of drug deals allegedly taking place in some of the units." (One would think that this has happened in the vast majority of apartment complexes in the United States).
And then, of course, if the Constitution is not a good enough argument to rebut CAF, there is the Seventh Commandment, "Thou shalt not steal."
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