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Kirsten Kuhn: Civil asset forfeiture is true highway robbery (Column)

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Many of you may be familiar with the libertarian rallying cry, “taxation is theft.” And although we have solid basis for this claim, there exists an arguably even more egregious and immoral variety of government robbery — the drug war-initiated practice of civil asset forfeiture.

Through this, police may seize any property or money that they can claim may be connected to an alleged crime. This process does not require a conviction, nor even necessarily a charge to be brought against the owner. 

Though ostensibly aimed at “drug kingpins,” the practice itself more commonly scoops up low-level dealers, individuals who struggle with addiction, peaceful users, and even entirely innocent owners. The standard required for forfeiture is merely that of “probable cause.” Once the property has been seized by law enforcement, the burden to prove innocence moves to the owner, although the proceedings accuse the property itself. Case names such as U.S. v. One Mercedes Benz or U.S. v. Eight Rhodesian Stone Statues underscore the absurdity of the situation.

Civil asset forfeiture is a complete bastardization of our country’s legal ethics, and the premise that a defendant (and thus, their property) is innocent until proven guilty. These injustices occur on our roadways, in our airports, and in our own houses. Often, the amount or value taken is of such a low number that it isn’t reasonable or even financially prudent to hire an attorney to fight the seizure. Even if you do, there is no guarantee of relief. In some places, the forfeiture is handled administratively, leaving no room for judicial review. Forfeited property and cash is then used by the very agencies who seized it.

Many of these incidents are shocking to the conscience. Gerardo Serrano lost his brand new F-250 to Customs and Border Protection over five loose bullets. A woman flying domestically with her father’s life savings of $82,000 to be deposited in a bank had it seized by the Transportation Security Administration. TSA, often working in partnership with the DEA, has also seized $43,000 that Stacy Jones was travelling with for the purpose of gambling, $40,000 from Jerry Johnson for the purchase of a truck, and $181,500 from another trucking company attempting to make a similar purchase. 

Currently, the law states that it is not a crime to travel within the country with sums of money, but the actions of U.S. federal agencies belie that fact. Neither are local and state law enforcement forces immune to the incentives of profit. Kevin McBride lost his $15,000 car after his girlfriend sold $25 worth of cannabis to undercover officers. Manni Munir, who runs a car rental business, lost one of his vehicles after a customer was discovered with contraband. These injustices happen everywhere, all the time.

This state-sanctioned theft is big business. According to the latest edition of the Institute for Justice’s Policing for Profit report, this scheme has netted the federal government (and, through equitable sharing agreements, state and local agencies as well) billions of dollars annually — more than $63 billion from 2002-2018. That is more than actual robbers and burglars stole from Americans. The concerning part is that this total is most likely an undercount. Many states did not or do not report all of their forfeiture information. 

Although CAF purports to target high-level dealers and traffickers, most of these are not high-stakes seizures. The average sum of money forfeited was only $1,276. This amount will do nothing to hurt major drug distributors, but it can be disastrous for an average person. This national problem holds for Kansas as well: the state most recently received a grade of D- in the Policing for Profit report, a result of a “low bar to forfeit (based on solely a “preponderance of the evidence”) and no conviction required, poor protections for innocent owners, and 100% of proceeds going to law enforcement.” For this poor performance of justice, the state has received almost $52 million from the DOJ from 2000-2013 alone.

Kansas has passed the Standard Asset Seizure and Forfeiture Act (KSASFA), which requires agencies to report relevant information to the state Repository (KASFR), launched in 2018. The 2020 report indicates that about $2.07 million in currency and $773,000 in property (total: ~$2.85M) was forfeited after final disposition. The state had initially seized $6.26 million, so at least some of these seizures were successfully disputed. 

In Kansas, the Junction City Police Department is the clear winner in revenue with $504,000 forfeited, but notable mentions go to the Kansas Highway Patrol ($423,000), Wichita PD ($294,000), Geary County Sheriff ($294,000), Logan County Sheriff ($274,000), and KCPD ($212,000). There was one reported seizure in Douglas County, but it was conducted by the Kansas Highway Patrol rather than a local agency, according to the KBI.

Statutorily, these monies must only be used for certain things, such as training and prevention/awareness problems, and equipment. However, the largest portions are funding law enforcement operations and equipment, with little left over for community programs. The state spent $116,000 on prevention and awareness, but the federal sharing proceeds for programming only amounted to $500! Operations, investigations, equipment, facilities, travel (and per diem), salaries, overtime, and other enforcement-related categories amounted to more than 97% of state expenditures (with precisely $0 going to nonprofits) and more than 99% of federal expenditures in the state. It’s clear that this is a revenue-building exercise for law enforcement, even if they are supposedly only to use the funds for special enforcement activities. 

Law enforcement uses CAF to raise revenue under questionable circumstances. The activity leading to the seizure was a traffic stop in 48% of the cases statewide, and 65% of the seizures occurred on the highway or street. Rather than utilizing a warrant or seeing plain view evidence of a crime, the majority of these were “authorized” under the low bar of probable cause. In 86.8% of cases, the underlying charge was drug-related. By the finalization of the seizure action, only 19% had been convicted, meaning that more than 80% of these legally innocent individuals had their property stolen by the government. Only 9% of people even bothered to contest the seizure. This is, indeed, a local problem, in addition to a national one. 

Civil asset forfeiture does not deter or decrease public crime. Abolishing it does not lower arrests. It functions as a slush fund for law enforcement agencies as it strips our legal system of its legitimacy. Civil asset forfeiture is literal highway robbery, and the time to abolish it has come.

— Kirsten Kuhn (she/her) is a super awesome Libertarian porcupine residing in Palmyra Township. She believes in personal freedom and self-determination for all people and enjoys gardening and beekeeping in her spare time. She can be reached at douglascountylibertarians@gmail.com or @KSLibertarians on Twitter. Read more of her work for the Times here.

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