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The Moral Peril of Minnesota Asset Forfeiture Laws

The Minnesota Senate is now considering a Bill to reform abusive asset forfeiture laws, SF2613.

Let’s review Minnesota’s current law on asset forfeiture (government takes your money):

  1. The government (police) can take your property at any time if suspicious to them, even if you are innocent.
  2. The burden is on you, not them, to do something about getting a court to look at it.
  3. If you do nothing, they keep your property, your money; and you lose; without any court or judge ever even seeing the case.
  4. If you want to do something about it, you need cash for a lawyer and court filing fees.  The law provides the government a free lawyer and requires them to pay no court filing fees.
  5. The police agency that targeted you and took you down gets to keep 70% commission on the cash, valuables, your vehicle they seize from you.  Could this affect their honesty about their investigation; or, the appearance of propriety?

The King vs. the Lords vs. The People

Property rights for common people are relatively recent individual human rights, against the government or the king.  In 1066, William the Conqueror seized nearly all the land in England.  He exercised complete power over the land, but granted fiefs to landholder stewards, who paid fees and provided military services as a condition for use of the King’s land and people.

William the Conqueror
William the Conqueror

Centuries later, the Magna Carta asserted that the government must pay cash payments for expropriations of land.  Over time, tenants held more ownership rights rather than only possessory rights over their land.

The Third Amendment to the United States Constitution says:

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

This amendment was to prevent soldiers taking over in private property as the British armed forces had done in Colonial America by under the Quartering Act before the American Revolutionary War.

Property rights for the little people?

The Fifth Amendment to the United States Constitution says:

“No person shall be … nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The goal was to destroy lingering feudalism.

Under feudalism, the king or the government owns the property, and the common people own nothing, except at the discretion, whim or caprice of the government.

The third, fifth, eighth and fourteenth amendments of the United States Constitution all attempt to further this goal.

But history has repeatedly shown us that this struggle for individual property rights against theft or seizure or taking by the ruling government has been ongoing.  The common people have gained and lost, and gained again over the years, both in politics and in law.

Asset forfeiture Hypothetical?

Imagine that you are peacefully driving down the road, having an average day.

Then, people in a vehicle with weapons stop you.  They hold you against your will.  These people question you in a controlling manner. 

And then they ask for your “consent” to search you and your vehicle, though they make it seem that it will happen regardless. 

They take your personal valuables.  And they seize your vehicle.  But there is no court process.  It’s just gone.  They have it now.  You no longer do.  You work hard.  And they take it, claiming the law.

What would you call this?  Armed robbery?

What if the “people in a vehicle armed with weapons” who stopping you were police officers of the State of Minnesota, acting under the color of the laws of Minnesota?

Now what do you call it?

“Administrative Asset Forfeiture.”  What does that mean?

Asset forfeiture laws are a type of government “taking” of private property that has been around a long time, but they have degenerated in recent years from “Judicial Asset Forfeiture” after conviction into “Administrative Asset Forfeiture” on a police officer’s view of suspicion.  What’s the difference?  First, a little background and context.

If you steal from a thief, is that stealing?

Ask Robin Hood, or the Sheriff of Nottingham.

Does every thief claim justification?

The government claims two justifications for laws permitting it to seize and keep private property it suspects to have some connection to crime:

  • instrumentality, and
  • criminal proceeds.

Instrumentality.  If a burglar uses special tools to commit a burglary, then the government seizes and keeps those as instrumentality of the crime, this may somewhat disable the burglar from committing a similar crime.  Almost all asset forfeiture seizures in Minnesota are of this type.  The instrumentality rationale for property forfeiture, however, has been stretched wafer thin.  It is now most commonly used in cases of suspected petty crimes like DWI, prostitution and banned drugs possession; not commonly in serious or violent crimes.

Criminal proceeds.  This type is relatively rare, and involves and attempt to trace (equitable tracing) the source of the funds used to purchase an asset to crime.  These usually involve larger dollar amounts only, well over $100,000 per case.  The type of crime alleged is less important.

Is the Property Guilty?  Is the Owner?

Asset forfeiture: Cash taken by U.S. Customs
Asset forfeiture: Cash taken by U.S. Customs

Nothing Personal: In Rem Jurisdiction.  Few asset forfeiture cases ever make it into court.  But the caption of the legal papers for those that do name the owner as a party to the lawsuit against the property (not the thief.)  

Rem is Latin meaning “thing.” When courts exercise in rem jurisdiction, they assert authority over a thing, not a person.  Like much in the law, there are historical reasons for this.

If the justification for the “taking” of another’s property is that the owner is a criminal, or that the property is somehow related to crime; should we be certain that the owner really did commit a crime in connection with the property?

Should police be able to seize and keep your vehicle or other property even though you’re still “presumed innocent?”  And before you get a hearing before a fair and neutral magistrate?

Reversing the burden:  In Minnesota today, police can seize your vehicle or other property under circumstances they view as suspicious, keep it, sell it and keep the cash, unless you file a court challenge “EXACTLY AS PRESCRIBED IN MINNESOTA STATUTES SECTION …” within 60 days.

You’ll need money for lawyer and court filing fees – just to get a day in court.

Crime does pay, for the government with its asset forfeiture laws 

Conflicts of interest: The money they get from your property after they sell it?  “70 percent of the money or proceeds must be forwarded to the appropriate agency…” i.e., the Police Agency that originally took your Private Property.  This is Minnesota’s current “administrative” asset forfeiture scheme.

What about “Judicial Asset Forfeiture?”

Judicial asset forfeiture is slightly more fair in that it affords procedural due process – the right to notice and a hearing before a neutral magistrate before the government can permanently keep your property.  But the law does not currently require a criminal conviction before the government can prevail in a judicial asset forfeiture case. 

Who are the victims of government asset forfeiture?

Targeting unbanked, low-income people:  The salt of the earth – the common people of modest means have disproportionately been the victims of government abuses, negligence and shoddy practices in the area of criminal law generally.  When it comes to asset forfeiture laws, it is no different.

The rise of modern age feudalism?

Police officers on an asset-forfeiture treasure hunt take cash, gold, vehicles, other valuables from a person never charged, never convicted of any crime.

And what is the cost-benefit ratio for that person to fight for return of the property in court?  Could they even afford (hire a lawyer, pay a court filing fee) to if they wanted to?  Can they do all that in time to meet the 60 day deadline?  Would that cost too much relative to what police stole from them, to be worth it? 

Do they have enough faith in the legal process to believe it would be fair, anyway?

The innocent are victims of asset forfeiture laws:  Sometimes the innocent owner is not accused of having any criminal association, but merely an association with another who is suspected, such as a spouse, parent or employer.  This is an anti-marriage law, that encourages divorce of a troubled spouse.

The Minnesota Supreme Court recently published a case that makes this clear, and a majority of the Justices asked the Minnesota legislature to reform the statutes, in the Laase case.  So will the legislature and the government heed this call, from the Court and from the People?

Is the Minnesota government corrupt, victimizing the weak?  Are its laws a corrupting influence on our good police officers?

Gallagher Criminal Defense logo smHas the time has come to reform (or repeal entirely) asset forfeiture laws in Minnesota?  Call the legislature.  Support the Reform Bill.

And in the meantime, protect yourself from police.

For example, avoid a marijuana arrest in a car.

The author, Thomas C Gallagher, is a criminal defense attorney in Minneapolis.

His practice includes Minnesota Forfeiture cases.

6 thoughts on “The Moral Peril of Minnesota Asset Forfeiture Laws”

  1. With no evidence my client knew the individual who took his ATV (he did not); no evidence he knew or had reason to know she was intoxicated when she took it, no evidence he knew her license had been suspended for prior DWI’s, and a dispute whether he had given her permission to take it or simply failed to stop her (debatable whether ATV was stolen), his ATV was taken by administrative action. After thousands in attorney fees and paying a $1,000 penalty, my client able to get the ATV returned. An absolute travesty, but the local judge refused to intervene, the prosecutor was not willing to dismiss, and my client was not willing to gamble on the system. My client had volunteered the use of his ATV at a local community event, which he will not do again, nor will anyone else with whom he shares his experience.

  2. A number of years back, a Captain, I believe, of the Golden Valley PD, publicly stated that asset takings for illegitimate cause was common by police among those they knew could not afford to fight back.

    Then, of course, we have our Infamous Gang Task Force scandal to show that not all professional law enforcement officers are above temptation.

    I am really concerned about laws that allow forfeiture for a conviction “under the circumstances” of a more serious law, where, in the criminal case, one is not convicted of that more serious law, or one is even acquitted, and yet still one loses in the civil forfeiture case because they convicted the person of the lesser degree criminally, and then go to civil court, and, despite the acquittal, prove those same, more serious, circumstances by a lower standard of proof. A second bite at the apple with no double jeopardy even considered.

    But all these forfeitures are just a second twist of the knife, and should be dubbed double Jeopardy.

    If I continue to drive drunk, then take the car and sell it. But if you are going to keep the money, that is punishment, and that taking belongs in the criminal case, labelled the “fine” that it really is. Public safety was accomplished when they removed and sold the car. Keeping the loot, is punitive.

    You also touched on a notion that bothered me the first time I ever read a forfeiture law, and has troubled me since, because it was so foreign to the ethos of the country I thought I was brought up in.

    It is that, those vested with the discretion whether to forfeit or not, benefit financially from the decision, through their agency’s “take” of the forfeiture sale.

    I do not even understand how that is ethical under our revered high standards of professional conduct.

    I don’t even expect every prosecutor to be above our species’ proclivity to succumb to temptation, (though one hopes they beat the Gang Task Force in the race for morality).

    That is why due process of law is implanted in the first place. We know we are not divine.

    But I am also sorely troubled by the inconsistencies from one prosecutor or one cop shop to the next. The unfeeling comments I get from some law enforcement officers, and the gross disproportionality of some takings, leave one wondering if we are members of the same species to begin with.

  3. Fantastic and very well written post.

    The problem is always the same, and that is what legislator will stand up and say “you’re being too hard on drug users/dealers or Drunk Drivers?” The answer is, as we all know, no one. Neither party will want to be seen as weak on crime or a flaming liberal.

    What is the most ironic thing about this is that the people who are frequent flyers in the criminal justice system, that is repeat drunk drivers or repeat drug users/dealers know how to thwart the system, they don’t keep the title in their own name or they drive a very cheap car knowing it will be gone and not caring.

    The real victims, as Tom points out, are the husbands/wives of the drunk driver who can ill afford to replace the family truckster. My favorite part of the forfeiture statute is that the prosecuting authority actually pocket some of the money.

    1. Thanks Jason. As for the politics of the reform Bill currently in the Minnesota legislature, I think it could very well pass. The liberals folks should realize that it’s mostly poor people being victimized by these laws, and want to help that constituency. The conservative folks care quite a bit about protecting individual civil rights to property from government fiat. I mean – administrative property forfeiture? Really? No court review first? No conviction required? And another attack on marriage – innocent spouses be damned? There should be bipartisan support.

      This is not about getting tough on criminals. The criminal laws do that quite severely. These asset forfeiture laws are corroding public confidence in our legal system. Just read the Minnesota Supreme Court in Laase (my previous blog post – on the innocent spouse case). Even though that was a flawed court decision, seven of nine Justices agreed on one thing – the legislature should reform asset forfeiture laws in Minnesota. This included two Pawlenty appointees. Yes, there should be bipartisan support. Reform is needed to bring back fairness, and stop the corrosion of public trust in the laws.

  4. Here in Chicago pretty much all vehicles are impounded if *any* of the occupants have contraband. I guess the onus is on the driver to know what’s inside the car.

    I don’t do traffic cases, but I think driving with no license gets your vehicle snatched. I imagine DUI is the same.

    Also routinely taken is all cash found surrounding any drug arrest. It’s presumed the currency was acquired in the drug business. I have seen all money in a house taken after a search warrant found negligible amounts of drugs.

    I know first hand of over $2,000 seized and the only thing found was some cannabis seeds. That was it.

    I don’t chase people’s cars down, but I am told if they beat the case the vehicle is returned. But if it’s not the defendant’s car the owner probably doesn’t want to wait and see what’s going to happen. It’s usually well over $1,000 to get a car out of impound.

    Reclaiming seized currency involves a hearing before a civilian administrator. The claimant has to fill out and mail a multi-page form and a money order for $100.00.

    Also the county takes 10% of all cash bonds.

  5. Asset forfeiture is becoming more and more pervasive in this country. To see the more than 800 pages of property the Gov. plans to permanently take from citizens see the website http://www.forfeiture.gov/ ….again many of these owners are never charged with, much less convicted of a crime. To attempt to get their property back they must follow strict guidelines to file a claim. This then triggers a judicial lawsuit–for which it will pretty much be necessary to hire an attorney to deal with motions, discovery, the selection of a jury and an actual trial—where the Gov. can win on a 51% to 49% standard (preponderance of the evidence)–or your innocent property can end up on a criminal indictment list, and you can’t get your day in court until the conclusion of the criminal trial, followed by possibly months until the “ancillary hearing” where you must again present your case before a judge—either way could take YEARS to get to court—and this is called DUE PROCESS under our present laws.

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