TAKEN: Despite reforms, burden still heavy on owners of seized property

By Karen Liu and Pam Dempsey/Midwest Center for Investigative Reporting; June 10, 2019

This story is part of a collaborative reporting initiative supported by the Pulitzer Center on Crisis Reporting. See all the stories at taken.pulitzercenter.org.

A 2018 recreational brand vehicle, $500,000 in cash, a quarter and a red Bass Pro Shop baseball cap.

These are just a few of the thousands of items that Illinois police agencies have seized over the past decade under state and federal laws known as civil asset forfeiture. The laws allow the seizure of property without a criminal charge being filed or case being filed in court.

And they allow the police to keep and use the cash and property to finance for various expenses of the agencies, often without much oversight or disclosure on how the money is spent.

The value of the property seized has totaled in hundreds of millions of dollars in property, cash, jewelry and real estate over the last eight years, according to an analysis of Illinois State Police data by the Midwest Center for Investigative Center.

The analysis of data from three Midwest states collected under the Freedom Information Act shows:

• Illinois police agencies seized more than $226 million in personal property, cash and real estate between July 1, 2010 through June 30, 2017.
• Indiana police agencies seized $3.4 million in cars, real estate and other property in the past three years. Agencies in Indiana weren't required to report on the seizures until 2016.
• Iowa police agencies seized at least $24 million in cash, personal property and real estate between 2010 and 2017.

In Missouri, police agencies seized more than $9 million in assets in 2018, the St. Louis Post Dispatch reported in February.

The laws enable police, prosecutors and other government agencies to seize property they believe is involved with crime without even arresting or convicting a person.

Under the laws, a person does not have a right to a court-appointed attorney as the person would under criminal law. Instead, the person must pay for one.

"The worst part of it is, statistics (show that) vast majority of forfeiture property in the state of Iowa and elsewhere, is forfeiture without anybody contesting," said Dean Stowers, a Des Moines-based attorney who argued a 2018 case on civil asset forfeiture before the Iowa Supreme Court.

He added, "Not because it was correct, it's that people don't have a right to an attorney to contest the forfeiture … often times hiring an attorney is more expensive than what's at stake in the forfeiture."

A person can fight to get the property back, which can take 10 years or more, or opt to settle – often for half or less of the property seized.

Such was the case in October 2017 after drug enforcement agencies detained $28,000 from an Ohio man at Chicago O'Hare Airport. Officers questioned him about his travel, which they found suspicious.

Despite the man's claims that he was flying to California to buy a car, inconsistencies in his story prompted officers to seize his property on suspicion it was linked to criminal drug activity.

The man filed a claim to get his cash back and - after several months – the U.S. agreed to return $10,000 of the property.

But in many cases, a person will walk away if he or she can't afford the expense of hiring an attorney - especially at a cost higher than the value of the property seized, experts said.

In February, the U.S. Supreme Court ruled that states cannot impose excessive fines in relation to a connected criminal case.

In the court's ruling, Justice Ruth Bader Ginsberg wrote: "Even absent a political motive, fines may be employed 'in a measure out of accord with the penal goals of retribution and deterrence,' for 'fines are a source of revenue,' while other forms of punishment "cost a State money."

Illinois, Indiana, Iowa and Missouri are among at least 32 states since 2014 that have moved to reform its civil asset forfeiture laws, according to the libertarian law firm Institute for Justice.

A system still flawed

But critics claim that there continues to be a lack of transparency on how states use the funds.

They also say that states are circumventing reforms by routing seizures through federal agencies who take a small percentage of value of the seizure and send the remainder back to the states.

"It's a racket," said Stephen Komie, a Chicago-based attorney who has worked with clients to retrieve property seized in Illinois, Indiana and Wisconsin since the 1980s. "Victims in part are ordinary citizens involved in ordinary transactions."

And critics continue to say the law provides incentives for the police to seize property at a profit to the agency.

Not so, said Dan Miller, an attorney with the Indiana Prosecuting Attorneys Council.

"The reality is for the most part, police agencies don't make enough from seizures, much less a profit," he said.

The proceeds from seizures go to cover the cost involved across all agencies in seizing the property, Miller said.

But there are exceptions, he said.

"I realize that law enforcement is not perfect around our country, but the key is that forfeiture is a tool to deter, stop, and prevent crime," he said. "As long as we look at in that way, we are going to have a healthy respect in how to use it."

It's used frequently through federal agencies as well.

Federal agencies, such as the Drug Enforcement Agency, seized:

• More than $282 million in assets in Illinois between 2010 and 2017, according to an analysis of federal data by the Pulitzer Center for Crisis Reporting, a nonprofit journalism organization based in Washington D.C., which is leading a national review of forfeitures.
• In Iowa, federal agencies seized $29 million in assets between 2010 and 2017;
• In Indiana, federal agencies seized $92 million in assets between 2010 and 2017, according to an analysis of federal seizure data.

Overall, state data is not collected in a uniform or complete way, making it difficult to compare one state to another and to get a larger national picture.

As part of national collaborative reporting project through the Pulitzer Center on Crisis Reporting, the Kentucky Center for Investigative Reporting found that only 11 percent of the more than 300 state law enforcement agencies reported what they have seized under civil forfeiture laws. Between 2013 and 2017, at least $36 million was seized, reporters found.

Texas police seized $50 million in 2017 alone in cash, cars, jewelry and other property under both civil and criminal asset forfeiture laws, the Texas Tribune reported.

And in St. Louis, law enforcement agencies in two counties each seized $1 million under civil asset forfeiture laws in 2017, according to reporting by St. Louis Public Radio.

Nationwide reform requires higher burden of proof

Reform efforts nationwide focus on several key aspects of current laws such as requiring a higher burden of proof before property may be seized, shifting the burden of proof from property owner proving his/her innocence to government proving guilt and requiring criminal convictions before forfeiture proceedings.

And the reforms aren't consistent - where one state may require a criminal conviction for each seizure, another only requires a criminal conviction of values below $5,000.

While reforms have lessened the burden on those who lose property, critics say the reforms still do not go far enough to protect those whose property is seized – such as those with cash.

"A person has to prove they are the owner of the money," Komie said. "How do you prove that? There is no title to money."

Despite reforms, in many states the law still has one commonality: police agencies still keep a large portion, if not all, of the proceeds from the seizures.

"There's a very strong incentive built into the law for law enforcement to seize as much property as they possibly can," said Ben Ruddell, criminal justice policy attorney at the American Civil Liberties Union of Illinois in Chicago.

Critics point out that law enforcement agencies often circumvent state reform laws and route civil seizures through federal agencies – to keep more of the money.

The case of the RV and half a million in cash

Such was the case with Patrick N. Barber, who filed a lawsuit last year to get back his property – a new recreational vehicle and more than half a million in cash.

Officers in a Pontoon Beach. Illinois police car kept the grey 2018 Forest River Forester 2391 Recreational Vehicle Barber was driving when they pulled him over on May 31, 2018 on Interstate 70 west bound. Pontoon Beach, Illinois, is a town of 5,600 people nearly 30 minutes from St. Louis and police there also kept the $510,910 in cash they found inside under the RV's bed and a handgun.

Barber, a singer and songwriter, told them he used the vehicle as part of his cash-based business – performing concerts on tour and selling T-Shirts, CDs and other products.

The Arizona resident was traveling through when officers pulled him over after noting that he did not signal when changing lanes, according to court records.

The officers were task force officers with the U.S. Drug Enforcement Agency and reported the inconsistencies in Barber's answers about his recent travels raised their suspicions that Barber "was being deceitful and could be involved in criminal activity."

Komie, Barber's attorney, said police dogs reportedly alerted officers after a search of Barber's RV.

"His entire working capital was under the bed," Komie said.

Barber was arrested, taken to the Pontoon Beach Police Department, and later released. He was not charged with any crime.

Despite his immediate written request and eventually a judge's orders to preserve the money police confiscated from his RV so Barber can have it independently tested, police instead deposited it anyway, Komie said.

Once that happens, the money is released back into circulation and can no longer be retrieved for testing.

"The ability of an ordinary citizen to contest the lore and legend of a dog was made impossible by the government's total disregard of citizen rights," Komie said, "because the dog will never come and testify and you can't cross examine a dog."

On June 5, 2018, just days after his traffic stop, Barber filed a lawsuit against the DEA and the U.S. Marshal for the Southern District of Illinois to get his property back.

And on September 4, 2018, the U.S. filed a lawsuit against the property – a common practice – to keep the property through forfeiture, stating the property was used, or intended to be used, in criminal drug activity.

And now, "the RV is rusting in a lot somewhere," Komie said.

Additional research by Marium Kureishy