Kansas officers couldn't keep your money without criminal conviction under civil asset forfeiture bill

Kansas officers could soon have a more difficult time taking and keeping cash and other property from people they suspect are connected to crimes.

Lawmakers are weighing two proposals targeting civil asset forfeiture, a legal procedure allowing the government to take money, guns, vehicles and other property they believe was involved in a crime.

House Bill 2648 would require law enforcement to get a criminal conviction before proceeding with asset forfeiture and send the proceeds to the state general fund, among other related provisions. The 22-page bill was requested by lobbyist Mike O'Neal on behalf of Kansas Policy Institute, a limited-government think tank.

House Bill 2640 would create a new process for criminal forfeiture of property worth less than $100,000. Rep. Dan Osman, D-Overland Park, introduced the 10-page bill, which would also bar seizure of money amounts under $200 and vehicles worth less than $2,000, among other provisions.

"Have you ever tried to explain what civil asset forfeiture was to someone who’d never heard of it before?" Osman testified. "I have. I don’t care where you are politically, the result is always the same. First their eyes get wide. Then they get shocked. Then they get confused. 'How in the world is this allowed?' they ask."

Civil asset forfeiture is a process where law enforcement can seize property they suspect is connected to a crime, then have a court forfeit the property to the government.

Under current law, the government can take property from someone, even if they are never charged with a crime. Additionally, people who are acquitted of a crime can still lose their property.

Asset forfeiture has gain greater public attention because of a seizure of medical marijuana proceeds that led to a federal lawsuit.

Federal prosecutors filed for the forfeiture of more than $165,000 seized by a Dickinson County sheriff's deputy. The money was in a cash transportation company's van, which was pulled over in Kansas after the Drug Enforcement Administration surveilled Missouri medical marijuana dispensaries.

The driver of the Empyreal Logistics van was never issued a traffic citation.

"This is nothing but highway robbery using badges," said Institute for Justice attorney Dan Alban, who is representing the company.

More: Can Kansas cops seize cash from legal marijuana sales in Missouri? A federal judge will decide.

The bills were referred to the Kansas Judicial Council for further study and potential amendments. It is unclear whether lawmakers will debate the issue again this session.

Does 'profit motive' lead to 'slush fund?'

KBI executive officer Robert Jacobs testified that asset seizure and forfeiture is intended to "deter and prevent criminal activity by taking proceeds away from those conducting criminal enterprises."

Additionally, he said, "law enforcement struggles with funding" and "forfeiture revenue is used to supplement law enforcement operations."

A budget office fiscal note indicates the Kansas Highway Patrol receives nearly $849,000 a year in forfeiture revenue and spends about $437,000 from forfeiture funds. The agency would anticipate less revenue under the bill and would likely have to shift some expenditures to other funding sources. The Kansas Bureau of Investigation acquired about $400,000 in forfeitures over the past five years.

More: ACLU files suit challenging Kansas troopers' 'two step' roadside strategy

The KBI's 2020 Civil Asset Forfeiture Report showed $5.1 million in cash and $1.2 million in other property seized statewide. Forfeitures totaled $2.1 million in cash and nearly $800,000 in other property.

The agency has not completed its 2021 report, but partial reporting shows $4.8 million worth of cash and $1.5 million in other property was seized. Forfeited totals were $3.3 million in cash and more than $800,000 in other property.

Agency figures for 2020 show the Kansas Highway Patrol's seizures totaled $3 million, with more than $400,000 forfeited.

Forfeiture funds can be spend on limited uses. Of the $4.9 million spent by all state agencies, the most common expenses were equipment, operations, buildings and vehicles.

Jefferson County Attorney Joshua Ney supports forfeiture reform. He served on the Kansas Judicial Council's Civil Asset Forfeiture Advisory Committee in fall 2017.

He said existing law creates a potential for "profit motive" in law enforcement and prosecutor offices.

Sedgwick County Sheriff Jeff Easter said law enforcement are accused of using forfeiture money as a slush fund, but "we emphatically deny this accusation."

'A black eye for law enforcement'

Easter, representing the Kansas Sheriffs' Association, explained how many seizures happen.

"We are aware of many instances where mules carrying drugs across the U.S. borders to the State of Kansas, then pick up cash as payment for these drugs to return to the cartels in Mexico," he said. "During these stops, probable cause exists to search the vehicles. Large amount of money is seized and the mules do not claim the money as theirs, do not know how it got there and were only instructed to return the car to someone they do not know in Mexico."

That's not an uncommon occurrence, KBI data show. In nearly half of all seizures, the person who was in possession of the property claimed they were not the owner.

Without the person claiming ownership of the property, and with little likelihood for criminal charges, it is unclear what would happen to the suspected drug money under the bill.

Easter argued the bill would give the money back to people "who are using this property from ill-gotten means to infiltrate our state with more illegal drugs."

Nearly half of all seizures stem from a vehicle stop for a traffic violation, KBI data show. A warrant was obtained in less than one-quarter of seizures. Suspected drug offenses account for the vast majority of seizures.

Retired Johnson County Sheriff Currie Myers, who also served as a KBI special agent and a KHP trooper, called civil asset forfeiture a "constitutional crisis" and "a black eye for law enforcement."

"I fully understand that asset forfeiture is an important tool in crime reduction strategies, but it should never be used if the asset is not linked to criminal activity and a resulting conviction for those crimes accused," he said.

Myers said studies have shown forfeiture isn't an effective crime-fighting tool.

"The purpose of civil and criminal forfeitures is for law enforcement agencies to utilize the ability to seize assets of ill-gotten gains form illegal criminal enterprises with the hope of disrupting the enterprise and better communities in Kansas," said Ed Klumpp, a lobbyist for the Kansas Peace Officers Association, which opposes the bill.

No 'innocent until proven guilty'

Bel Aire Police Chief Darrell Atteberry said it is not practical, rational or logical to require a criminal conviction before forfeiture proceedings. Atteberry represented the Kansas Association of Chiefs of Police.

Under the bill, defendants could flee the country, or an untimely death would make forfeiture impossible, he said.

Jon Lueth, of the Kansas chapter of Americans for Prosperity, said the bill doesn't block law enforcement's ability to seize property suspected of a crime, but police would have to wait until after a conviction before the seized property would be forfeited.

KBI data for 2020 showed that at the time of forfeiture, 50% of cases had charges filed, a conviction or a diversion agreement.

Without a criminal conviction, forfeiture law "flips the principles of innocent until proven guilty on its head," Lueth said.

"A substantial portion of these seizures never results in criminal charges or a conviction," he said. "This data reveals that law enforcement in Kansas is frequently using this power to seize the property of innocent Kansans without the necessary due process protections normally provided in our criminal justice system."

Opponents of the bill argue that court procedure provide an appropriate check and balance on the process.

While the government does have to go through court to keep the property, the civil nature of the case comes with a lower burden of proof. Additionally, most forfeiture cases progress through court uncontested, according to KBI data.

Advocates for reform argue that most cash seizures are less than the cost of an attorney to fight the forfeiture, dissuading property owners from paying for a legal fight.

Jeanette Bottler, of the Justice Action Network, said lawmakers should protect innocent people from having their property taken.

"Asset forfeiture was one of the many grievances our founding fathers held against the king of England," she said.

Jason Tidd is a statehouse reporter for the Topeka Capital-Journal. He can be reached by email at jtidd@gannett.com. Follow him on Twitter @Jason_Tidd.

This article originally appeared on Topeka Capital-Journal: Kansas bill requires officers get conviction before taking property