Starting this summer, Minnesota prosecutors who want to confiscate your property permanently have to get a criminal conviction or an admission of guilt first. It also will become the government’s burden to prove that valuables taken in a drug investigation were actually used in a crime.
These don’t sound like controversial concepts. But by making them law, Minnesota has become a national leader in reforming the rules of criminal forfeiture, according to Lee McGrath of the Institute for Justice, a libertarian public interest law firm. His organization partnered with the American Civil Liberties Union to lobby for the law, which passed this session with almost unanimous bipartisan support.
The real credit for the reform goes to a rogue police unit that, five years after it disbanded, still stains the image of cops taking private property.
In the name of law enforcement, the Metro Gang Strike Force brutalized people and illegally took cars, cash, clothing, power tools and seemingly anything else they could get their hands on. While the task force members were never punished criminally, victims of excessive force and unreasonable seizures got their property back and $840,000 in compensation through the federal court.
John Kingrey of the Minnesota County Attorneys Association said most of the Metro Gang Strike Force’s transgressions had nothing to do with the rules of forfeiture. Nonetheless, they “poisoned the well” with lawmakers, who since 2010 have tightened the rules on police and county attorneys, Kingrey said.
It’s long overdue. People trying to save their property from forfeiture often find that the ground rules of criminal court — innocent until proven guilty chief among them — don’t apply to their stuff.
Through the 1970s’ and the 1980s’ “War on Drugs,” the Legislature gave more and more power to law enforcement, until confiscating property became a profitable enterprise. In 2012, law enforcement agencies reported 5,290 forfeitures under state law that netted $6.6 million, according to the Minnesota State Auditor. That doesn’t include assets seized under federal laws, which brought in $1.8 million to local agencies in fiscal year 2013, according to the U.S. Department of Justice.
Eighty-nine percent of the forfeitures under state law in 2012 stemmed from drunken driving and drug cases.
From 2007 through 2013, more than 8,500 forfeiture lawsuits were filed in Minnesota courthouses. Most were filed by people claiming their property could not be legally kept by law enforcement. They hoped to recover cars, guns and cash, but also jewelry, power tools, clothing, boat trailers, snowmobiles and more.
One wide-ranging forfeiture case in Olmsted County in 2007 netted two cars, more than $300 in cash, three pairs of sneakers, 11 sports jerseys, three televisions, a lawn mower, stereo equipment, an Xbox and Drunknmunky brand jeans. In Washington County in 2008, a man charged with drunken driving went to court to try to get back his car — a 1928 Ford. A Wayzata woman awaits a trial on her DWI charge, making monthly payments on the 2013 BMW that has been parked for a year in police custody.
Just like everything else in the courthouse, lawyers involved in forfeiture cases frequently make deals rather than risk a trial. Last year, Brooklyn Park police doing a drug raid in a house found $11,510 in cash hidden in a bed. A woman told police that money was honestly earned, and she had it in cash to buy a car, according to court records.
So they reached an agreement: The government kept $3,453 and gave the rest back.
It’s that dynamic that troubles Ryan Pacyga. The Minneapolis lawyer has handled hundreds of forfeiture cases, and he sees the presence of a valuable forfeiture distorting decisions about guilt, innocence and plea deals. “It’s ripe for abuse,” Pacyga said.
The forfeiture process came as a shock to Dean Barkley, who briefly served as a U.S. senator after Paul Wellstone’s death. In April, Barkley lent his GMC Envoy SUV to a relative to haul some tires. That relative was driving the SUV when he got pulled over on Interstate 394, and Golden Valley police charged him with drunken driving and drug possession, records show. They also seized the vehicle.
One of his attorneys, Philip Villaume, said the Golden Valley police have not violated any policies by refusing to give up the car so far, but he said he expects that as an innocent owner, Barkley will win it back in court — eventually. How long will that take? About three months, he said.
Barkley said he did not think much about forfeiture law in his political days, but he’s thinking about it now. “It goes against every constitutional concept that I studied in law school. … I think it’s screwy. I think it’s completely backwards.”
The Legislature and Gov. Mark Dayton took a significant step toward turning that law back in the direction of justice. Thanks are also due to the Metro Gang Strike Force.
Contact James Eli Shiffer at email@example.com or 612-673-4116. Read his blog at startribune.com/fulldisclosure.