by: David Malban

The Forfeiture Laws are bad medicine.  They make 21st century highwaymen out of our law enforcement officers.  They allow for the summary seizure of personal property which flies in the face of our notions of due process, equal protection, and fundamental fairness.  At street level, these laws typically put the strongest members of society -- cops -- against the weakest.

    Don’t want to answer any questions?  Then I guess I’ll just have to take that truck of yours.  Don’t want to give up your source?  I guess I’ll help myself to your cash.  No explanations.  No legal theories.  Just a one page notice with your “rights” handed to you.  And what are these rights?  You have the right to sue the government, after paying a hefty filing fee to the court, just to find out what the cops theory of seizure was (if you’re lucky) and then face off against a well- trained, well- paid government lawyer who has no worries about where her next paycheck, or health care, is coming from.

    Forfeiture laws suck.  In my opinion, they make thieves out of cops, victims out of regular citizens, and a mockery of the notion that this country is based on fundamental freedoms that can be backed up in court.

    The forfeitures associated with Jim Carlson and with the Last Place on Earth are only the most recent and notorious examples of the folly of these laws.  At least Carlson seems to have the economic wherewithal to fund a vigorous legal defense.  But the average shmoe often does not, and there is no public defender system because of the “civil” nature of these proceedings.
    Let’s start with a single question.  Should those people who break the same law in the same way be treated similarly?  Yes?  Well, forfeiture laws in Minnesota almost make sure that is not the case.  If you have a prior alcohol incident on your driving record, -- no need for a prior DWI conviction -- the cop now has a built in incentive to declare your hesitancy about taking a breath test a “refusal.” I have seen many DWI suspects refuse to test because they feel the arrest is lame, or because they have gotten into a scuffle with the cop.  But the “refusal” let’s the cop grab your ride, no questions asked, no explanations given, it’s just gone Johnson.  Not to be returned, unless you sue the cops.  And you typically only have 30 days to do it.  Often less time than you’ll have before your first court appearance on the ticket or even before your attorney, if you get one, will have before she sees the police reports.

    And it’s not just suspects that lose property under the forfeiture laws.  Innocent owners are regularly subjected to the loss of their cars, cash, or other property as well, perhaps more often.

    Have you ever been in love with a person with a substance abuse problem?  That’s not so much their problem as yours once they get pulled over in your car under the influence.  I once had a client who was married to a wonderful woman, but she drank.  He hid the keys to his classic 70’s car in a tool box in his shed to keep them from her, even though she had six months of sobriety under her belt.  When he went to work, she found the keys, went out for errands, but ended up at a bar.  He came very close to losing that car in forfeiture, but instead parted with cash to buy it back.

Another troubling area of forfeiture is the taking of cash – especially by Duluth P.D. – when a person is found in possession of a small amount of marijuana.  Understand that a small amount of marijuana is not a criminal offense in Minnesota.  It is considered to be a petty misdemeanor, the equivalent of a speeding ticket.

    But can you image a cop taking all of your cash out of your wallet when you get pulled over for speeding? This happens frequently in Duluth on petty misdemeanor marijuana cases.  Disturbingly, it happens more often, in my opinion, when minorities and citizens from lower-economic social statuses are involved.

    At a recent statewide symposium, a room full of criminal justice practitioners were aghast at this practice.  I have had judges both returned the cash in the forfeiture, and other judges deny the return of cash to the citizen.  There is no clear rhyme or reason to the rulings.

    Imagine the case of a young mother of two children and a boyfriend who uses her car.  When he sees the lights go on behind him on a country road after having “just a few beers” he panics.  We all hear so much about how horrible it is to get pulled over for drunk driving that sometimes young people just panic.  Instead of pulling over, he hits the gas.  About a mile and a half down the road, he realizes his mistake and pulls over.

The cops will interrogate the boyfriend about how often he uses the car, whether it is stolen or not, and try to determine facts to justify keeping the car from the mother.  While they are doing this, they will make no mention of how or why they are going to use this information, but they will imply with questioning that the driver has stolen the car or has no proper permission to be using it - - a notion that he will assure them is false, which in time will be used against the mother in the forfeiture case.

    The result is that the young mother’s car, her only means of transportation to work, which is twenty miles away, is now forfeited by the cops.  It will take her weeks, if not months, and thousands of dollars in attorney’s fees to get her car back, if she’s lucky.

The forfeiture laws should run smack into the concept of the equal protection clause of our state and federal constitutions.  That constitutional phrase should mean that all similarly situated persons should be treated (read: punished) the same.  But that doesn’t happen in forfeiture situations because nobody is going down the road in the same ride -- even if it is the exact same car --.  Those people who have no car payments are typically screwed the worst.  Those that are upside down on their vehicle come out the best.  The banks don’t get whacked by forfeiture legislation, because they get paid off after the auction.  An auction that usually takes place without any notice given to the original owner.

     One more example.  You may remember the case of the young college student who was run down by an admitted drunk driver on a dark road on Halloween night a few years ago.  He was seriously injured.  The driver came forward, admitted her guilt, and helped the injured man get Dram shop insurance coverage for his injuries.  The Duluth Police Department - -Accident Bureau - - forfeited her car because it could.  The driver was fine with losing the car as she saw it was just, under the circumstances.  She did however insist that the proceeds of the sale of her car at auction be given to the victim.  She owned the car outright, had insurance that would fix the damage, and the car blue booked in the low teens.  Following my client’s instructions, I got an order from Judge John DeSanto ordering the Duluth P.D. to submit those funds to the badly injured victim.  What was the cops response?  No.  We’re keeping this car under the forfeiture laws and we are not selling it.  We are going to drive it, and use it as we see fit.  No sale, no money to the victim, no reduction in the driver’s personal monetary restitution, at least for several years until they have depreciated the car to half or more of it’s value.

    And the forfeiture laws are not just bad medicine for the people whose property is prosecuted under them, they are also bad policy for the police department and society as a whole.  Tom Tyler, a psychologist at N.Y.U., and Tracey Meares, a law professor at Yale, have compiled an impressive amount of work that proves this notion: people do not comply with the law because they are afraid of going to jail.  Rather, people comply with the law because of police legitimacy.  That legitimacy is chipped away every time the police claim a forfeiture.  Proving that one thing is true:  Possession is 9/10ths of the law, until the cops show up.
                           

David J. Malban is a private attorney in downtown Duluth.

This story originally appeared last week, computer glitches rendered it difficult to read.