Lawmakers introduce seizure bill
DENVER — Abuses by law enforcement of civil forfeiture laws elsewhere in the nation have prompted four state lawmakers from both sides of the political aisle to join forces to see if similar abuses are happening in Colorado.
The four — Sens. Tim Neville, R-Littleton, and Daniel Kagan, D-Cherry Hills Village, and Reps. Leslie Herod, D-Denver, and Steve Humphrey, R-Severance — say they don’t necessarily believe that state and local law enforcement agencies in Colorado are using civil forfeitures for their own purposes rather than cracking down on criminals.
But because the practice is so secretive, they can’t really say that for sure, the lawmakers said.
“The issue is around the broad allowances that we give law enforcement to seize and then forfeit property, so what brought this on is we don’t actually know how many folks are actually being convicted or if any kind of criminal investigation is going on around that person and their property,” Herod said. “We don’t know that folks who are guilty of a crime are not coming back and getting their property. What we do know is that law enforcement is keeping the property and then utilizing that for their own (departmental) funds.”
Law enforcement, meanwhile, are already lining up against the measure, SB136, which isn’t up for discussion in the Senate Judiciary Committee until next week. A number of them were lined up outside a Capitol hearing room where the lawmakers had gathered Thursday to brief the media about the bill.
They say that there is no problem with any law enforcement agency in the state misusing the practice, so there’s no reason for the bill.
“We are very much in favor of transparency and we have been,” said E. Thor Eells, commander of the Colorado Springs Police Department. “The bill that exists now would more than likely inhibit our ability to be fully transparent. If agencies made an error in reporting, they potentially would be subject to civil finding, which creates a disincentive to report.”
Under the measure, the Colorado Department of Public Safety, which currently is headed by former Mesa County Sheriff Stan Hilkey, would be required to create a special website listing what property law enforcement agencies have seized through civil forfeitures and what proceeds those agencies later keep for themselves from property they’ve taken.
Civil asset forfeiture laws were originally designed to help cripple large criminal organizations by taking away their means to operate.
But according to the American Civil Liberties Union, “flawed federal and state laws” have allowed many police departments around the nation to abuse the system, using it to pad their budgets, making seizures motivated by profit to make up for budget cuts rather than fighting crime.
Eells and Tom Raynes, executive director of the Colorado District Attorneys’ Council, said it’s true agencies have gotten needed equipment from profits made from seized property, saying it’s fitting that ill-gotten gains by some law breakers are being used to fight other criminals.
Raynes said the Mesa County District Attorney’s Office has used proceeds from seizures for such things as crisis intervention training, body armor, protective gear for emergency medical technicians and computer software.
“That’s where that money is used,” Eells said. “Contrary to perception, though, it is not a primary funding source.”
While both men believe all that could go away under the bill, the lawmakers say the measure doesn’t attempt to change civil forfeiture laws, just shine a light on how they are being used.
Kagan said one of his concerns has to do with a procedure known as “adoption,” or the practice of turning to federal prosecutors to pursue cases that state law might not cover. Under that practice, also known as equitable-sharing partnerships, local agencies later can get a cut of whatever property was seized.
“I don’t even suspect that nefarious activity is going on by the police, but what I do fear is that over-reach, over-extensive seizures and forfeitures are likely taking place that have not really been carefully enough considered,” Kagan said. “We don’t know. Are people really being deprived of their property without due justification? That’s what I fear is happening. What tends to happen is that they’re a little over-enthusiastic and a little less solicitous of the owner’s property rights than they should be.”
Eells, however, said adoption hasn’t been used for the past two years.
That’s because, under former President Barack Obama, the U.S. Department of Justice suspended the practice.
“Within the state of Colorado, these problems simply don’t exist,” Eells said. “Adoption has not existed for over two years, so it begs the question, what’s the problem?”
Kagan, however, said that could quickly change with Alabama Sen. Jeff Sessions taking over as U.S. Attorney General under President Donald Trump.
Neville said the bill addresses that issue by setting a $100,000 threshold before cases can be deferred to federal authorities.
He said the measure also requires law enforcement agencies to report what happened with each seizure, whether charges were filed and a conviction made.
“If there is criminal activity, we’d like to see them follow up on that,” Neville said.
“This is information we feel is important for the Legislature to know and understand, as well as what happened to that property,” he said.