Friday, November 6, 2015

My civil asset forfeiture story



Yesterday evening, while enjoying a plate of carnitas at Chimi's in Tulsa, I listened to State Senator Kyle Loveless (R-OKC) describe his bill to reform civil asset forfeiture laws in Oklahoma.  Senate Bill 838 would put a stop to Oklahoma law enforcement agencies seizing and keeping people's property without going to the trouble of convicting -- or even charging -- the property owners with a crime.  If you are unfamiliar with the practice of civil asset forfeiture, then you should become educated

My education came hard and fast when I took on my one and only forfeiture case four years ago. 

Police arrested and charged a man with manufacturing a controlled dangerous substance.  At the time of the arrest, the police also seized a pickup and a new Harley-Davidson motorcycle that were parked in front of the house where the arrest occurred.  Also seized were two rifles and two handguns, which were found inside the house.  

The district attorney filed a Petition to Forfeit Property Seized During Arrest for Controlled Dangerous Substance.  As is the practice in asset forfeiture cases, the property items themselves were listed in the case caption as the "Defendants."  The property owner(s) were not named.  (Inanimate objects tend to put up less of a fight.)

I was hired to represent the motorcycle -- sort of.  The motorcycle was actually titled in the names of the suspected drug dealer and his elderly mother.  The mother's guardian hired me to defend against the forfeiture of the motorcycle.  The other inanimate objects were on their own.

I learned that the motorcycle had been purchased by the mother at the urging of her precious little boy.  She made the down payment, signed the note to the bank, paid almost all of the installment payments, and paid all of the insurance premiums.  Nonetheless, she was about to lose the motorcycle because, according to the Petition:
found in close proximity of Manufacturing of Methamphetamine . . and believed to have been utilized in exchange for, and to transport, or were otherwise utilized in connection with said controlled dangerous substances.
But what the Petition did NOT allege was that any controlled dangerous substance was actually found.  All that was found was "drug paraphernalia," including some scales.  Nothing was found on the motorcycle, nor was there any evidence that the motorcycle had been used to transport any controlled dangerous substances.  

I filed an answer to the Petition, explaining that the mother was the one who purchased the motorcycle, and that the bank was the effective owner, since the loan balance was more than the resale value of the motorcycle.  Even if the motorcycle had been used "in exchange for" or "to transport" drugs, it is unlikely that Mom was aware of it, since she had Alzheimer's and was house-bound.

I thought the filed answer would be enough to shake the motorcycle loose from the district attorney's grasp, but it was not.  He pressed ahead.  This means that he was taking the position that he could take my client's motorcycle simply because it was parked in front of a house in which the police found some scales.  Sound reasonable?

The law he was relying upon provides:
All monies, coin and currency found in close proximity to any amount of forfeitable substances, to forfeitable drug manufacturing or distribution paraphernalia or to forfeitable records of the importation, manufacture or distribution of substances, which are rebuttably presumed to be forfeitable under the Uniform Controlled Dangerous Substances Act. The burden of proof is upon claimants of the property to rebut this presumption . . .
As bad as this law is, notice that it applies only to money -- not property in general, such as a motorcycle.  Also, what is "close proximity"?  Is a motorcycle parked in the driveway in close proximity of the heinous scales found inside?

Another portion of the law requires that the district attorney give notice of the forfeiture petition to any known lien-holder.  But even though I identified the bank and included the loan number in my answer, the district attorney refused to give notice to the bank.  (Bank lawyers put up more a fight than inanimate objects.)

We had a hearing.  Once I convinced the judge that the motorcycle was effectively owned by the bank, the district attorney cut bait.  He voluntarily released the motorcycle from the forfeiture petition, but still refused to concede that he was in the wrong.  He insisted to the court that he could still take the motorcycle if he wanted to.  I had the motorcycle, so I quit arguing.

The pickup and the other items were still forfeited.  The owner had a public defender, but since the forfeiture was a civil action, the public defender would not lift a finger to help save the property.  The owner was unrepresented and overwhelmed.  

Sen. Loveless is being vilified all across the state by sheriffs and district attorneys for trying to reform this system.  According to them, there is nothing to see here, so move along.  

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