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Gov. Fallin calls for fairness in civil asset forfeiture laws

Sarah Hussain / Red Dirt Report
Gov. Mary Fallin addresses the recent OPA convention in Oklahoma City.
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State senator claims current law violates Constitution

OKLAHOMA CITY – Governor Mary Fallin acknowledged that a state senator has a legitimate concern about law enforcement’s ability to seize a person’s property and money during a traffic stop without making an arrest.

“Kyle (Loveless) had a valid point and we need to look at that,” she said, referring to a bill state Sen. Kyle Loveless introduced at the end of this past legislative session. “I am open to discussions with Kyle about his proposal. We certainly need to be fair.”

The governor made her comment during a question-and-answer session with journalists attending last week’s annual Oklahoma Press Association conference in downtown Oklahoma City.

Loveless (R-Oklahoma City) submitted the measure knowing it would not be heard this session, but would likely receive plenty of notoriety prior to the 2016 legislative term, which begins next February.

The bill would require a felony conviction before a person’s property or money could be seized by law enforcement agencies. Currently, state law allows police to confiscate property without an arrest or conviction.

Fallin may be willing to discuss Loveless’ proposal, but one of her senior aides apparently believes the governor will veto the measure if it passes the House and Senate, according to a commentary written by Oklahoma City attorney David Slane and published in Red Dirt Report.

Still, Loveless was glad to hear the governor is willing to take an objective examination of his bill.

“I think it’s great and I look forward to having her look at it,” he said. “It’s an important issue and could affect a lot of people. I welcome her to the discussion, but I think the real battle will be in the House and Senate.”

State Rep. Scott Biggs (R-Chickasha), a former prosecutor, has requested an interim study on the issue. Loveless said Biggs opposes the bill.

Oklahoma sheriffs and police chiefs immediately responded with a heavy dose of criticism as soon as Loveless’ bill was publicized. Canadian County Sheriff Randell Edwards was the most vocal, claiming loss of drug interdiction money and property seized in connection with those crimes would have a dramatic impact on his department’s ability to fight drug dealers.

Edwards distributed a statewide email condemning the measure and Loveless for introducing it.

Reliance on seized cash and property is no way to operate a law enforcement agency, Loveless shot back.

“There are complete departments that depend on this money. Is that a good way to fund government? I don’t think so,” he said, responding to a question from Red Dirt Report.

Loveless said he hasn’t heard any negative feedback from anyone outside of law enforcement.

Loveless’ proposal falls in line with actions other lawmakers in Michigan, Pennsylvania, Maryland, California and the federal government are taking. Otherwise known as “Policing for Profit,” a new report released by the American Civil Liberties Union (ACLU) shows the Philadelphia district attorney takes $1 million a year from innocent Philadelphians. The report also shows state and local police have made more than 55,000 seizures of cash and property worth $3 billion with the help of the federal government during the last six years. In 2014 alone, federal forfeiture laws were used to take in $4.5 billion.

Those opposed to civil asset forfeiture in its present form have called the process a “system of legal thievery” or “real highway robbery.”

In Oklahoma, the law requires a person to prove the seized property was not used in the commission of a crime. Slane, a criminal defense attorney for more than 20 years, said many people decide not to contest the actions of police because of the expense of hiring an attorney. Also, Slane contends law enforcement agencies target vehicles driven by minorities with out-of-town license plates. The idea behind that type of profiling, he said, is that the owners of the property will not be able to return to Oklahoma for scheduled court hearings.

Loveless is frustrated that civil asset forfeiture cases in Oklahoma consistently fail a constitutional test.

“The issue is that the owner is presumed guilty until they can prove their innocence,” he said. “In America, we are proud of our tradition of innocent until proven guilty. Unfortunately, that’s not the case with civil asset forfeiture.”

For years, criminal defense attorneys have complained that many innocent people have had their property seized because the burden of proof on police agencies is so low. The Personal Asset Protection measure, also known as Senate Bill 838, would increase that burden from a “preponderance of the evidence” to a “clear and convincing” standard. The bill also would eliminate the requirement that owners prove the property was not used in the commission of a crime.

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Tim Farley

Tim Farley is an award-winning journalist with more than 30 years of experience, including...

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