Two bills making their way through the Ohio Statehouse would make it more difficult for law enforcement to keep cash and other property owned by innocent people that’s seized during drug busts.
Current law allows police to take anything during an investigation that, in their view, has a connection to criminal activity.
The Buckeye Institute, a Columbus-based libertarian think tank, estimated that $80 million has been forfeited statewide over the past decade.
Unlike criminal cases in which prosecutors must prove guilt, the burden of proof in these civil forfeiture cases is on property owners. They must prove that their cash or car was not obtained illegally.
State Rep. Robert McColley, R-Napoleon, introduced a bill in late September to switch the burden of proof.
“All we are trying to do is tell law enforcement that the burden is on them to prove that the property that they are seizing is part of a crime,” Antani said. “If it is, then they can keep it. If it is not, they have to return it to its rightful owner.
“To me, protecting personal property rights, particularly from government intrusion, is very, very important.”
The bill, HB 347, requires, among other changes, that forfeiture can go forward only if the owner of the property has been convicted of a crime.
The proposal has had two hearings at the Statehouse in Columbus. A companion bill was introduced in the Senate last week.
Clark County Sheriff Gene Kelly said he hasn’t read either proposal yet, but he believes the current system is working well.
His department doesn’t take property from innocent people, he said, and any items or cash seized are protected or deposited in a dedicated account. They follow what the court orders, Kelly said, including returning property promptly if a judge calls for it.
“I’m confident in how we’re protecting peoples’ property,” Kelly said. “We follow the mandates of the court and we act very quickly when we get a court order.”
Cash, cars, trucks
After property is collected, prosecutors can move for forfeiture.
Cash is often targeted in drug investigations as the best way to go after drug dealers, Capt. Mike Brem of the Montgomery County Sheriff’s Office.
“Whether it’s a mid-level drug trafficker or a high-level drug trafficker, our goal is to put ripples in that supply chain,” Brem said. “And by that we want to cut off their funding. So we’re not only taking their drugs, we are also taking the money going back to the cartels.”
Records obtained from the Montgomery County Prosecutor’s Office show that over the past three years the office has filed forfeiture actions involving $168,000 in cash, 18 cars or trucks, a tablet computer and a bicycle.
There were 266 forfeiture cases in the county last year.
Antani noted that there is no independent accounting of civil forfeiture actions statewide, and said some people don’t fight for their property.
“They do not want to make an issue out of it because they are afraid that law enforcement will come back and seize more,” he said. “So part of the problem with this process is that it is done in the dark of night. We do not know exactly what is being taken and what is being kept.”
Among the few people who have stepped forward claiming to be victims of forfeiture abuse is Charles Clarke, a college student from Kentucky. He was on his way to school in Florida when he was stopped at the Cincinnati/Northern Kentucky International Airport. A TSA agent searched his carry-on bag because the agent thought he smelled marijuana. Clarke’s life savings of $11,000 in cash were confiscated.
“The cops searched my bags. They found nothing. They searched my carry-on. I had nothing on me. I’m not a drug dealer and that gives them no reason to take my money,” Clarke said in a video released by the Institute for Justice, a Virginia-based advocacy group that has taken up his cause.
The group gives Ohio a grade of C-minus for its civil forfeiture laws and protection of property rights.
People who have had their property taken by law enforcement must file a timely response to a notice from the county prosecutor and then go to court to state their case.
Montgomery County Common Pleas Administrative Judge Michael Tucker said the cases go before a magistrate. People can appear on their own or with an attorney. In most cases, Tucker said the magistrate’s recommendation becomes the order of the court.
Defense attorney Michael Brush, who formerly worked for the Montgomery County Prosecutor’s office, recommends that people hire an attorney for forfeiture cases. But for many that is a financial burden.
“There’s a lot of procedural things that happen in a courtroom and you need to get an attorney,” Brush said. “(But) a lot of times this is all they have. All they have is that vehicle. They don’t have that money to go get an attorney. The idea to come into court to fight for it is pretty tough.”
People seeking the return of their property often are the girlfriends or family members of those targeted by police. Even if they eventually win back their property, it can take weeks or months for a civil case to be resolved.
Brush said people named in criminal cases often choose to allow their property to be forfeited rather than risk saying something in a civil forfeiture hearing that could be used against them in a criminal trial.
Beyond the initial seizure and forfeiture, what happens next with the money has prompted its own controversy. State law allows police agencies to split the proceeds of forfeiture with the local prosecutor’s office. Much of it is spent on training, technology or vehicles. Brush said that poses a potential conflict of interest.
David Fuchsman, the chief magistrate who handles forfeiture cases in Montgomery County, sees room for improvement in state law.
“So maybe the money is forfeited, but it doesn’t go to the department,” he said. “Maybe it goes elsewhere, maybe goes to a charity.”
Brem said checks and balances exist in the system. He said sheriff’s deputies might seize assets, but the prosecutor handles the civil case and it is up to the courts to decide what is retained and returned.
Antani said the movement to change the law has attracted support from all parts of the political spectrum and involves a long-protected constitutional right.
“Going back to our founding, we have protected personal property rights, particularly from government intrusion,” he said. “This issue is about whether law enforcement, the government, can take your property and keep it without cause.”
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