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Sen. Loveless pushes civil asset forfeiture reforms with new bill

Sarah Hussain / Red Dirt Report
State Sen. Kyle Loveless (R-Oklahoma City)
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Seized money, property would come under control of independent commission

OKLAHOMA CITY – State Senator Kyle Loveless is continuing his fight to reform Oklahoma’s civil asset forfeiture laws, but he’s made a few concessions in a new bill filed Wednesday.

The main thrust of the measure still requires a criminal conviction before law enforcement agencies can permanently seize a person’s property taken during a traffic stop or from their residence. In addition, the bill requires the property or money be returned if no criminal charges are filed within 30 days, which stems from a suggestion made by attorneys in the Oklahoma Attorney General’s office.

The new omnibus reform measure would establish a 15-person citizen oversight commission designed to oversee the Forfeited Assets Distribution Fund, a new state account that would hold all seized cash and money from the sale of confiscated property. The commission would issue grants from the fund to drug treatment facilities, drug courts and law enforcement agencies.

“They (agencies) can still go before the board and request money for a specific project,” said Loveless (R-Oklahoma City).

Under current law, the agency that confiscates the money or property is allowed to keep it for drug interdiction purposes after a judge approves the forfeiture action. In some cases, the money is shared with other law enforcement agencies that assisted in the investigation.

“An agency shouldn’t be able to grow its budget based on how much property it takes (from citizens),” he said. “At the same time, the state’s general revenue fund shouldn’t rely on that either. I want to create a new fund that would be run by a citizen oversight board with funds being used to address our state’s continued drug crisis.”

Critics of Oklahoma’s civil asset forfeiture laws claim most law enforcement agencies in the state use the asset forfeiture process to supplement their budgets, an action commonly known as “policing for profit.”

Criminal defense attorney Chad Moody, who labels himself as the Drug Lawyer, said district attorneys are hooked on civil asset forfeiture because it provides them with a large share of their operating revenue.

“I think the legislature gives them 51 percent of their budget. That’s why I say the drug warriors are addicted to the drug war,” he said. “It perverts the whole process. The system is set up to promote forfeitures.”

In many forfeiture cases, lawmen profile drivers with out-of-state tags or rental cars, Moody claims.

“Then they look for traffic violations, whether real or imagined, and go on a fishing expedition,” he said.

Creating the independent oversight commission would be a major step toward removing the profit motive for law enforcement.

“It would be the single biggest thing that could solve this issue,” Moody said, explaining police would have no reason to make bogus stops of innocent property owners.

Neither Oklahoma County District Attorney David Prater nor Canadian County District Attorney Mike Fields returned phone calls for comment on Loveless’ bill.

Making concessions

Based on conversations with district attorneys and police, Loveless agreed to a list of exceptions for the criminal conviction requirement. A conviction won’t be required for a civil forfeiture action if the person dies, is deported or he or she is granted immunity in exchange for helping police or prosecutors.

Convictions also won’t be required if the property owner relinquishes all rights to the property or if the property is valued in excess of $50,000.

“The average forfeiture in Oklahoma is $1,200 so this will catch 99 percent of the cases we see,” Loveless said.

Another key part of the bill is an annual audit which will be subject to the Oklahoma Open Records Act and will be sent to the state legislature and state auditor.

“Fairness and transparency has been a problem in the past. Right now, district attorneys and police can’t tell you how much they seized last year so the annual report will detail how much comes in and how much goes out,” Loveless said.

The senator filed his origin al bill in May and was hit with heavy criticism from law enforcement and prosecutors who claim the legislation, if approved and signed into law, will hamper their efforts to fight the drug war in Oklahoma.

Canadian County Sheriff Randall Edwards was outraged by the bill when it was originally filed in May. He referred to the measure as the “single worst, most damning, most asinine and devastating bill I have ever seen for this state and law enforcement.” Edwards continues to claim the bill would set the war on drugs back 20 years and “literally shut down drug interdiction in this state.”

Edwards has consistently argued that losing seized property and cash would likely eliminate funding for his public safety programs, K-9 units and four full-time drug interdiction units.

However, Loveless contends innocent property owners are being victimized when overzealous lawmen seize money and property without probable cause. In most cases, the lawmaker said, people don’t fight to reclaim their property because of the expense required to hire an attorney.

“If the average forfeiture is $1,200, it will cost more than that to get an attorney to go to court for you. We want to change the dynamic ... When an innocent person in Oklahoma gets their property taken, they have to go before the government to get the property back. It’s a fundamental flaw. It’s an inversion of the system,” Loveless said during Wednesday’s Capitol news conference.

Under the current law, people who have their property seized must prove it was not used in the commission of a crime.

"We were raised under the assumption that you are innocent until proven guilty in this country. The government should have to prove beyond a reasonable doubt that seized funds are (connected to a crime). The second thing we wanted to do was streamline the appeals process. Currently, the government can hold your property for up to five years. I don’t believe that’s justice. Delayed justice is no justice at all,” Loveless said.

His measure also would prevent seized money or property from being transferred to a federal agency unless it exceeds $50,000.

Oklahoma continually earns the worst grades in the nation (D-minus) for its forfeiture laws and practices, according to the Institute for Justice.

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