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ACLU investigates civil asset forfeiture, claiming ‘incompetence or corruption’ in Muskogee Co. Case

Heide Brandes / Red Dirt Report
Brady Henderson is legal director for the ACLU-Oklahoma.
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OKLAHOMA CITY -- Even as Oklahoma Governor Mary Fallin signed into law a bill that touched upon civil asset forfeiture reform Thursday, the American Civil Liberties Union of Oklahoma said it is investigating a “disturbing example of government misconduct” of asset seizure in Muskogee County.

On Thursday, the governor signed legislation passed by the House and Senate that allows for the recovery of attorney fees in forfeiture cases.

The law, authored by Republican Sen. David Holt, would help citizens who feel their assets were seized unfairly to fight for a return of attorney fees at least.

However, even as Oklahoma takes a step toward some sort of asset forfeiture reform, the ACLU’s top attorney said the organization is investigating one of the worst cases of civil forfeiture it has seen.

THE MONEY GRAB

In all civil forfeitures in Oklahoma, owners are presumed guilty and must contest forfeiture by proving they did not know property was being used illegally. Local law enforcement receives 100 percent of the proceeds from civil forfeiture, and civil forfeiture has averaged more than $5.5 million per year in proceeds from 2000 to 2007.

Oklahoma state audits, however, uncovered times in which funds were used incorrectly, including district attorney offices using seized money and property to live rent-free and pay off student loans.

Currently, Oklahoma law enforcement can seize property or money if they think it was used in a crime, even if they don't charge anyone. The funds that are not contested stay within the seizing agency’s budget or with local prosecutors.

In an interview with Red Dirt Report, Brady Henderson, legal director for ACLU Oklahoma, said Friday his office is not only investigating the seizure of $53,000 belonging to a Christian band, a church and an orphanage, but earlier seizures that hint at a pattern of improper practices and legal deficiencies.

“Obviously, this is a strong important case,” Henderson told Red Dirt Report. “What we are doing is an investigation and also sending open records requests in Muskogee. Most of our investigation is looking at records to see if a pattern of bad forfeiture is happening, and it looks as if it has.”

Calling it a disturbing example of government misconduct, the in-depth investigation into the asset seizure practices of the Muskogee County Sheriff, District Attorney and other law enforcement officials by the ACLU centers on the case of Eh Wah, a 40-year- old Texas man who is a refugee from Burma, also known as Myanmar.

In a press release by the ACLU, Wah, a U.S. citizen, was driving through Oklahoma to Dallas after touring with the Klo & Kweh Music Team, a Christian rock group, was stopped on Feb. 27 in Muskogee County.

Wah said the group had toured the United States to raise funds for a Christian college in Burma and an orphanage in Thailand.

According to a story published by The Washington Post, Muskogee County Sheriff deputies stopped Wah around 6:30 p.m. on Feb. 27. Deputies seized the cash Wah was carrying, then released him. Five weeks later, Wah was charged with the crime of “acquir(ing) proceeds from drug activity, a felony.”

“They did a dog ‘hit’,” Henderson said. “The drug dog may have hit on the amount of cash. Drug dogs sometimes hit on cash because, according to the Federal Reserve, 80 percent of U.S. currency has drug residue on it.”

A Muskogee County judge then signed off on an arrest warrant for Wah even though the District Attorney and Sheriff had not provided evidence required by law for a warrant to be issued Henderson said.

The Post reported that the cash – totaling more than $53,000 – was made up of proceeds from the rock group’s concerts and donated funds for a Thailand orphanage.

“Mr. Wah was stopped, and either they knew he had cash or were told to stop him,” said Henderson, citing a ghost system where tips are traded about who has cash or drugs. Henderson said both actions were unfounded.

“The statute they charged Mr. Wah with violating isn’t even a criminal statue and does not list any crimes,” he said.

Following significant media pressure, Muskogee County District Attorney Orvil Loge dropped both the civil and criminal charges against Wah. Loge told the Post he had “looked at the case and met with the officers, and determined that we would not be able to meet the burden of proof in the criminal case and in the civil case.”

He said a check for the full amount of money taken from Wah would be mailed to Wah’s attorneys as soon as possible.

“They did not find cause that Wah was involved in illegal activity, only that he had a bunch of cash,” said Henderson. “It went off the rails at that point. Everyone involved except for the judge had a direct financial interest. The judge had an indirect financial interest, but everyone else would have had direct financial benefit.”

Muskogee County Sheriff Charles Pearson was unavailable for comment Friday afternoon.

ACLU of Oklahoma Executive Director Ryan Kiesel said in the press release that court documents in the case – along with others in previous Muskogee County forfeitures – show serious legal problems that could spark a variety of legal actions against the public officials involved.

Ryan Kiesel is executive director of ACLU-Oklahoma. (Sarah Hussain / Red Dirt Report)

Kiesel said the seizure and false criminal charge was another troubling example of Oklahoma’s broken asset forfeiture system, according to the ACLU statement. 

“Eh Wah did nothing wrong,” Kiesel said. “But Muskogee County officials did everything wrong. They seized and sought to keep money they had no right to take. Then they filed a false criminal charge and got a bogus arrest warrant that took away an innocent man’s freedom. That’s about as wrong as it gets.”

Henderson said the case was symptomatic of a civil asset forfeiture system that too often is about turning a profit for elected officials rather than making the public any safer.

“This was an amazing failure of the justice system,” Henderson said. “The question is why did it fail? That’s the question we are trying to answer with this case. It was either significant incompetence or significant corruption.”

Henderson said the investigation will explore how long the practices have been going on, how much property has been seized and whether or not criminal activity took place. 

A BIGGER PROBLEM

Wah’s case and the ACLU investigation is another example of why civil asset forfeiture is being scrutinized nationwide.

In January, the New Hampshire House of Representatives debated the civil asset forfeiture law.

A portion of the proceeds from seizures are sent to local law enforcement agencies for drug enforcement and prevention efforts, but the New Hampshire bill which the House approved Jan. 7 would divert that money to the state’s general fund.

Supporters argue the change will eliminate any conflict of interest while opponents claim the new bill would hurt drug prevention efforts.

Last spring, Maryland Gov. Larry Hogan vetoed reforms to the use and abuse of civil asset forfeiture by police within the state, and in January, the Maryland Senate was successful in overriding that veto.

However, in March, the Justice Department said it would resume a policy to allow local police departments to keep a large portion of assets seized under federal law.

The “Equitable Sharing Program” gives police the option of prosecuting some asset forfeiture cases under federal instead of state law. Federal forfeiture practices police to keep up to 80 percent of assets they seize and is considered more lenient than some state laws.

According to the Institute for Justice report “Policing for Profit,” only Nebraska and North Carolina require proof beyond a reasonable doubt in order to keep seized property.

The report shows that annual proceeds nationwide from forfeiture was $4.5 billion in 2014 and that civil forfeiture accounts for 87 percent of all government seizure. By the same token, criminal forfeiture accounted for only 13 percent of all government seizures, meaning that almost 90 percent came from civil seizure of property from citizens.

Oklahoma State Sen. Kyle Loveless (R-Oklahoma City) announced in January a new bill that would reform Oklahoma’s civil asset forfeiture laws, changing where the forfeited proceeds are deposited and streamlining the process for citizens to reclaim that property.

That bill died without being heard in committee by Sen. Anthony Sykes (R-Moore). Sykes has become notorious in that he refuses to speak to the media on this and other legislative issues. Repeated calls to Sykes' office have not been returned.

Meanwhile, Loveless’ bill package included three stand-alone bills and one omnibus reform bill. The package required a criminal conviction before the government can keep forfeited property. The government currently has the ability to forfeit personal property without proving a crime was committed in a court of law.

Under his doomed legislation, Loveless wanted to create a new fund through the state’s Attorney General’s office with a citizen oversight board.

The 15-person board would have used the proceeds for grants to fund drug treatment, drug courts and law enforcement drug interdiction.

“What these bills do is require government to prove beyond doubt that the property seized was used in a crime and it streamlines the appeals process for citizens,” Loveless said.

Loveless’ bill would have also required the government to file charges or return property within 30 days, instead of the up to five year waiting period it has now. In addition, the $250 filing fee to fight for the return of seized property by innocent parties would have been waived.

“I believe law enforcement has a tough job and need to be given the tools to do their jobs, but it shouldn’t trample on innocent people’s rights,” Loveless said.

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Heide Brandes

Heide Brandes is an award-winning journalist and editor with more than 18 years of experience....

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About Red Dirt Report

Red Dirt Report was launched July 4, 2007 as an independent news website covering all manner of news, culture, entertainment and lifestyle stories that affect and interest Oklahoma readers and readers outside of our state. Our mission is to educate, promote civic engagement and discourse on public policy, government and politics. Our experienced journalists provided balanced in-depth coverage of news stories that affect Oklahomans. Our opinion/editorial stories come from a wide range of political view points. We carry out our mission by reporting, writing, and posting news and information. read more

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