Wyoming Supreme Court Decision Should Prompt the End of Civil Forfeiture

by Steve Klein

Ten years ago, Wyoming Liberty Group published my paper Reforming Civil Asset Forfeiture in Wyoming. The paper detailed how the Wyoming Controlled Substances Act permitted police to seize property—including cash, cars, and firearms—on mere suspicion it was related to drug trafficking, without convicting or even charging the owner with a crime. Following seizure, in civil court the government only had to prove by a preponderance of the evidence that the property was proceeds or a tool of the drug trade to permanently keep it—that is, forfeit it. Understandably, the government almost always won, because it usually came down to the word of a police officer versus the word of the property owner. In 2016, after three years of lobbying by a nonpartisan (and, within the Wyoming Legislature, bipartisan) coalition, Wyoming law was amended to adopt the evidentiary standard suggested in my paper, clear and convincing evidence, which is, in theory, just shy of the proof-beyond-a-reasonable-doubt standard used in criminal cases.

It was a good start. But it wasn't enough.

Prior to the 2016 amendments, during the 2014-2015 interim the Judiciary Committee undertook a surprising but welcome mission: to replace civil forfeiture with criminal forfeiture. The bill they proposed in the 2015 General Session would have required a suspect to be "convicted of a violation of this act punishable by imprisonment for more than one (1) year" before his property was subject to forfeiture. It passed both houses overwhelmingly, but was then vetoed by Governor Matt Mead (in one of the few vetoes he exercised during his two terms) and failed to garner enough votes in the Wyoming Senate to override the veto. With the governor's veto in mind—and the wobbliness in the legislature immediately afterward—the Judiciary Committee returned to the lighter reforms, including requiring clear and convincing evidence and permitting attorney fees for property owners who successfully defend against forfeiture.

The years since the 2016 reform have proved that certain segments of Wyoming law enforcement are not too keen on these amendments and are not above abusing the same kinds of loopholes that police usually complain about. The Wyoming Division of Criminal Investigation issued a form for "roadside waivers" to have owners forfeit property on the spot, with chilling results, until the legislature specifically banned the practice in 2018. State law does not prevent law enforcement from cooperating with the federal government in enforcing federal drug laws, which are still as loose as Wyoming law before 2016. Cooperating state agencies can receive forfeited property as part of Uncle Sam's "equitable sharing" program. The Casper Police Department rejoined the program earlier this year.

A recent opinion from the Wyoming Supreme Court has caused the latest commotion, In The Matter of U.S. Currency Totaling $75,000. In an article in the Cowboy State Daily about the decision, Tyler Lindholm, former state representative and Wyoming State Director of Americans for Prosperity, pulled no punches against the court, the Attorney General, and the civil forfeiture law:

"Dear government: stop stealing from people," said Lindholm. "That's what I want for Christmas – for the government to stop taking money from random people traveling through my state."

Indeed, the case goes to the fundamental conflict that makes the debate so contentious: fundamental principles in the face of bad facts.

Lorenzo Gallaga is a drug dealer. He has deep experience in the California marijuana trade, where recreational marijuana is legal but highly regulated (and, as a result, where a black market still thrives). The Wyoming Highway Patrol seized $75,000 of cash from him following a search of his vehicle on I-80 near Cheyenne. They also found "marijuana, concentrated tetrahydrocannabinols (THC), and MDMA (otherwise known as Ecstasy)" along with ledgers evincing myriad drug transactions and multiple mobile phones that still had voicemail messages on them referring to drug transactions.

The state sued to forfeit the cash but lost at district court, where the judge rulded that Mr. Gallaga "merely 'pass[ed]-through' Wyoming with the currency. In other words, [that] Mr. Gallaga had not violated the Wyoming Controlled Substances Act." The Wyoming Supreme Court reversed and has ordered that the money is to be forfeited to the state. Obviously, the $75,000 at issue in the case was drug money by clear and convincing evidence. The court's opinion raises issues far beyond civil forfeiture itself, such as how one may engage in a conspiracy for purposes of Wyoming law. But amidst that larger legal puzzle, the fundamental problem and principle hold: even in the case of Mr. Gallaga, drug property should not be seized without convicting him of a crime.

According to his appellate brief, Mr. Gallaga was tried in Wyoming criminal court simply for possession of marijuana—nothing close to conspiracy to distribute—and acquitted by a jury of his peers. I believe he would have been acquitted if he was tried for conspiracy or a larger crime, because, indeed, there's no evidence he was dealing narcotics in Wyoming. There are two ways about it: Mr. Gallaga is a drug dealer, but is innocent until proven guilty in a court of law. And he wasn't convicted of any crime. Nevertheless, civil forfeiture still permits a separate trial and forfeiture of Mr. Gallaga's property.

The $75,000 case is but another reason Wyoming should enact something akin to the criminal forfeiture bill that Governor Mead vetoed in 2015. It is fundamental to due process and property rights that the government be prevented from chasing someone's stuff over an alleged crime at a lower evidentiary burden afforded to a person in criminal court. Even the most ardent proponent of a war on drugs must acknowledge that civil forfeiture isn't fighting the drug trade, it's just randomly taxing it. Mr. Gallaga's money should be as free as he is, absent a criminal conviction. That's the best standard for Wyoming—and, indeed, America.