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Civil Forfeiture is a Problem in Wyoming

Last week, at the meeting of the Joint Judiciary Committee of the Wyoming Legislature in Newcastle, I testified in favor of two bills that, if passed, will reform the practice of civil forfeiture in Wyoming. Both bills would bolster due process and property rights that are currently at risk under the Wyoming Controlled Substances Act. Wyoming police agencies may currently seize and the Attorney General may permanently forfeit one’s property on the basis that it’s “intended for use” in the drug trade, without actually charging the property owner of a drug crime. This includes cash, cars, firearms, houses, and just about any other personal property. The proposed committee bills will help alleviate—if not entirely end—cases where property is seized without charging the owner of a crime. Indeed, the second committee bill requires conviction of a felony before property may be forfeited.

This is hardly a novel concept—that one is innocent until proven guilty—but certain representatives of Wyoming’s law enforcement establishment are having a tough time with it.

And, frankly, when it comes to what they’re telling the Judiciary Committee, I’m tired of the bull.

In the 2014 Budget Session, when testifying before the House Judiciary Committee, Steve Woodson, director of the Wyoming Division of Criminal Investigation, criticized aspects of my Liberty Brief on civil forfeiture. On page 4 of the brief, I discuss a case where the Wyoming Highway Patrol seized $131,000 from a man driving through Wyoming. The case was turned over to the federal government, and eventually the money was permanently forfeited when the owner did not contest the forfeiture. Woodson insisted the driver is (or was at the time Woodson testified) a “fugitive from justice.” This did not change the fact that his money was taken in a civil proceeding without convicting—much less charging—the driver of a crime. Woodson also took issue with my portrayal of a Wyoming Supreme Court case (pages 4-5 of the brief) where I showed how difficult it is for the average person to represent him or herself in court in a civil forfeiture proceeding, and that it’s not worth hiring an attorney when $7,000 is at issue. Woodson ignored these points and described the plaintiff in the case as a “jailhouse lawyer” with a long criminal record. With testimony from prosecutors and other representatives of law enforcement, the bill was largely gutted before dying in the Senate Judiciary Committee.

Since the last session, this narrative has only picked up steam that civil forfeiture is an important tool for Wyoming law enforcement to take away the ill-gotten gains of bad guys with no undue risk to law-abiding citizens. But last week, law enforcement seriously overplayed its hand.  Joe Baron, Crook County Attorney and First Vice President of the Wyoming Association of County Officers, testified that there is “no problem” with civil forfeiture in Wyoming. Byron Oedekoven, former Campbell County Sherriff and lobbyist for the Wyoming Association of Sheriffs and Chiefs of Police, went even further, testifying that someone driving down a Wyoming highway with $20,000 in cash to go purchase a bull would have nothing to fear from law enforcement.

In my testimony, I responded with these examples:   

In December 2008, a man from Florida was pulled over on I-80 here in Wyoming. A search of his car revealed $17,000 in cash and a .44 caliber pistol. Wyoming law enforcement seized this property. The man was not charged with a crime and allowed go on his way. After initially offering to return 10% of these funds, then engaging with the property owner’s attorney, the Wyoming Attorney General returned the $17,000 and kept the pistol, in an agreement releasing the state of any liability surrounding the seizure.

In July 2009, a duffel bag containing $774,506.00 in cash and gold was seized from a man after he landed on a plane in Jackson from Chicago. The man was not charged with a crime. Neither the federal Drug Enforcement Agency nor the Wyoming AG could make a case, and the property was returned a month later.

In June 2010, Wyoming Highway Patrol pulled over three men travelling from North Carolina to Oregon. During the officer’s investigation, the driver went to the back of the car to retrieve some money. Upon noticing the $7,000 in cash that the driver was transporting, the officer seized the funds. No one was arrested or charged with a crime. The driver’s wife explained in a letter a few days later that the cash was part of their business. Two months after that, the money was returned to the driver after he signed a document releasing the state of any liability relating to the seizure.

(These cases are 2008-0405, 2009-0246, and 2010-0243, listed on the Attorney General’s forfeiture database. I researched the cases based on the fact that the money was actually returned, and have not had the time to look at the other 400 or so cases in the time period.)

No problem? Did the visitors from Florida and North Carolina simply err in not buying a bull on their way through our state? Is it okay that the state baselessly seized their property because it was returned later? Is it okay that the Attorney General offers 10% settlements in cash seizure cases and conditions returning the property on releasing the state of liability? No, no, no, and no.

I’ve strived to maintain objectivity in my work on civil forfeiture. Indeed, I stand by my assessment that Wyoming law enforcement is not abusing the law, but is simply enforcing a bad law. The vast majority of the forfeiture cases the AG brings involve actual narcotics— that is, they’re going after actual criminals. But the ignorance and, I can now say, arrogance displayed by certain representatives of Wyoming law enforcement before the Judiciary Committee is inexcusable.

The reforms offered in the draft committee bills will still allow law enforcement to nail the bad guys and will ensure that property cannot be forfeited—or even seized in the first place—without a bona fide criminal case. This is nothing more than added due process for the very people law enforcement is sworn to protect, and reform should have their support.

So, with continued due respect to law enforcement, spare us all the bull.

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Thursday, 18 January 2018

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