At its April 1st meeting, the Columbia City Council approved the purchase of a Lenco Bearcat armored personnel carrier with a price tag well over $200k. $36,505 of the cost was to be covered by asset forfeiture funds.
For those who are unfamiliar with asset forfeiture, I’ll try and explain it in a proverbial nutshell. Before I do that, it is important to thank the policy analysts at Americans for Forfeiture Reform for their work on this subject. Without them, I doubt many people would be talking about the evils of asset forfeiture. For those who would like to learn more, AFR has a very informative website.
In a nutshell, as promised, asset forfeiture is the means by which the government circumvents the 4th, 5th, and 10th Amendments to the United States Constitution to steal property from its citizens as it makes unreasonable seizures without due process and overrides the Missouri Constitution. If property is suspected to have been used in the commission of a crime or gained as the proceeds of illegal activity, that property can be seized by the government. More on that later.
There are two problems with asset forfeiture. First is the problem of where the money goes. Second is the problem of how the money is taken.
All interest accruing from investment of the county school fund, the clear proceeds of all penalties, forfeitures and fines collected hereafter for any breach of the penal laws of the state, the net proceeds from the sale of estrays, and all other moneys coming into said funds shall be distributed annually to the schools of the several counties according to law.
So, according to the Missouri Constitution, moneys confiscated via asset forfeiture is to be sent to the schools. With this being the case, how are law enforcement agencies in Missouri able to pay themselves from these funds?
The answer is a federal loophole known as equitable sharing. Equitable sharing basically works like this. When local law enforcement finds some good stuff while investigating a crime, they take it and process the forfeiture through the federal government. Most law enforcement agencies have federally deputized officers who can process the forfeiture. Sometimes it’s merely a matter of paperwork. When this happens, the feds take a small cut of the proceeds and give the rest back to the participating law enforcement agencies. This allows for an end-run around the Missouri State Constitution. The money is effectively laundered through the Department of Justice.
Initiated in 1986, the Equitable Sharing Program was designed to foster cooperation between state and federal law enforcement agencies in the war on drugs. Few states had forfeiture laws at the time and state and local agencies that participated could receive a portion of the income generated from federal forfeitures. Since then all 50 states have passed either civil or criminal forfeiture laws and now the equitable sharing program serves not only to foster cooperation, but as a way for state and local law enforcement agencies to circumvent their own state forfeiture statutes.
Once local law enforcement hands a case over to the feds, state law ceases to apply. This means that police departments in California, North Carolina, and Nebraska do not have to convict a person before taking their property. Agencies in Hawaii stand to receive as much as three times the amount of money from a forfeiture processed in federal court than they would if done through their own court system. State mandates to avoid policing for profit, such as in Missouri where forfeiture proceeds are supposed to be deposited in a fund for education, are bypassed as well.
Instead of going to schools, the money is funneled back to local police, either as grants or as cold, hard cash. As Columbia’s Police Chief Ken Burton described it, it’s like “pennies from heaven.”
I’d argue that these funds are really pennies from hell, usually stolen from citizens, but we’ll get to that later.
Not only are the forfeiture funds not going to our school children, the equitable sharing process sets up a system of policing for profit which further degrades our local political system that should be answerable to the people. Funding is one way the people of a community possess to maintain local sovereignty and control or support of local law enforcement. When law enforcement uses equitable sharing of forfeiture dollars to self-fund, the community loses one check and balance and the police have a perverse incentive to prosecute profitable crimes or wait to act until certain crimes become profitable.
Case in point: Columbia’s infamous Kinloch Ct. S.W.A.T. raid. One of the main problems with this raid was that the police supposedly had reliable intelligence from a confidential informant who stated that there was a large amount of cannabis at a residence. The police waited 8 days after the warrant was issued to kick in the door with guns-a-blazin’, shooting two dogs in front of a small child only to find a small amount of cannabis and no cash.
So why the delay? While it was explained away as a staffing problem, the real reason was likely the hope of finding piles of cash. If the police know there is a big pile of drugs at a dealer’s house and they send S.W.A.T. in immediately, all they find is the drugs. If they wait a week, hopefully the drug dealer has sold enough of his product to amass a big pile of cash — cash that can be used to buy cool new Department of Homeland Security toys and tools like the Lenco Bearcat.
There’s just no money in rape and murder these days.
We’ve established that there is a problem with where the money goes. It’s not going to our school children as directed by our state constitution and it establishes a means of self-funding for law enforcement, circumventing local control and creating perverse enforcement incentives. Now let’s tale a look at how the money is taken in the first place.
To keep things simple, let’s divide asset forfeiture into two categories — criminal asset forfeiture and civil asset forfeiture.
Criminal asset forfeiture is when property is seized by and forfeited to the government when the owner of such property is convicted of a crime. There are some reasonable arguments that can be made in support of this system. When a person is convicted of a crime, forfeiting property can be part of the punishment. Of course we’ve discussed the problem with self-funding above, but when we look at it as punishment, regardless of where the money goes, it seems to make sense. When a profitable criminal gets out of jail, they should not be able to go home to a mansion purchased with the proceeds of his/her criminal activity.
Civil asset forfeiture is the real problem. In a civil asset forfeiture proceeding, a citizen does not need to be convicted of a crime to have their property taken by the government. In fact, the accused doesn’t even need to be tried and acquitted. All that really needs to happen is an arrest, justified or not, and the government seizes property.
Since the forfeiture is made in civil court, the old “innocent until proven guilty” protection that we all learned in 6th grade does not apply. Cases are literally made against the property and read like, “United States of America v. United States currency in the amount of $638,202.00 et al.” To get their property back, property owners must hire a lawyer to argue for the innocence of their property, which is assumed in civil court to be guilty. Sound absurd? Well, it is absurd.
The case listed in the preceding paragraph as to do with property taken from a local Columbia business owner during a raid executed by the Boone County Sheriffs Department. Kevin Bay, co-owner of a local business, BoCoMo Bay, was suspected of a crime. Once arrested, the charges against Mr. Bay were quickly dropped, but not before several million dollars worth of cash, precious metals, collectible coins, and collectible firearms were seized and made subject to civil asset forfeiture.
That’s right. Mr. Bay was arrested, never officially charged with a crime, yet faces a lengthy federal court battle to have his rightful and legal property returned to him. This is theft, plain and simple.
While it might be worth it, although a hard stone to chew, for Mr. Bay to spend tens of thousands of dollars to get his millions returned, if he is successful, imagine a case where only $10,000 worth of property is seized. Why would a victim if civil asset forfeiture spend $20,000 in legal fees fighting for the return of $10,000. In these cases, the only choice is to forfeit the money.
This happens all the time. Click here to see a raid where a grandmother’s $5000 dollars was seized because someone in her house had a crack rock and pipe in his pocket. That money is gone, no matter what.
At last week’s Columbia City Council meeting, the council approved the use of $36,505 of asset forfeiture funds to purchase an APC for the CPD. Here is the council discussion regarding the purchase during which Michael Trapp leads the charge for accountability in the use of the vehicle. Asset forfeiture gets a mention during the discussion, but comes up later, in a meaningful way.
During the public comment portion before the vote, Keep Columbia Free’s Treasurer Elect addresses the council.
Keep Columbia Free President Mark Flakne also addressed the council.
And it looks like someone on the council heard us. At the end of the meeting, Councilperson Laura Nauser asked for a staff report on the use of asset forfeiture dollars in the City of Columbia. She expressed an interest in starting a public discussion centered around asset forfeiture to see if it is something that our community wants to use as a source for funding police.
We have also heard from another councilperson, who shall remain nameless for the time being, who said that he is open to the idea of championing asset forfeiture reform in Columbia, especially with the passage of the 911 tax which will allow for the return of funds to the city that can be used to replace forfeiture funds.
Please help educate your friends and family about civil asset forfeiture. Sadly, the majority of folks in Columbia and across the country simply have no idea what asset forfeiture is. Thanks to Americans for Forfeiture Reform and other groups like the Institute for Justice, people are waking up to this practice and overwhelmingly finding themselves to be repulsed by it.
Now is the time to call your councilperson and let him/her know in no uncertain terms that it is time to end the use of asset forfeiture to fund our local police. We should fully fund our police department through traditional means. Using asset forfeiture as a funding mechanism, while technically legal, is a morally abhorrent practice. We should all be demanding local sovereignty, government accountability, and local control of our law enforcement.