Law officers can take property from criminals, sell it and use the proceeds to fund enforcement efforts.
It happens in Southwest Colorado, and it happens in varying degrees around the country.
The million-dollar question: Is it ethical?
The practice, known as forfeiture, is revered by some and deplored by others.
Supporters say it allows police to pull the ultimate switcheroo: use illegal drug money and ill-begotten property to enhance the war on drugs. It also sends a message to criminals that their possessions could be seized and used by law enforcement, said Pat Downs, director of the Southwest Drug Task Force.
“Those vehicles or that cash – they are drug proceeds,” Downs said. “Drug proceeds are not a legitimate form of income.”
Others, however, say police shouldn’t profit from arrests they make. It creates a bad perception and could lead to questionable motivations. Confiscating property such as vehicles or real estate could affect innocent lives, said 6th Judicial District Attorney Todd Risberg.
“I’m not sure it’s appropriate to take the family car away from the wife and kids when that’s all they’re going to have left after their husband or father goes away (to prison),” Risberg said.
Not often used
Forfeitures are used sparingly by law enforcement in La Plata County, according to local agencies. Most are pursued by the Southwest Drug Task Force, which has raised tens of thousands of dollars over the years to help pay for gun locks, SWAT gear, surveillance equipment, computer stands in patrol cars and a sexual-assault camera used at the hospital.
In 2010, the task force seized about $110,000 worth of cash and vehicles from suspected drug dealers, according to an earlier interview with Downs. He didn’t have updated figures readily available for this story.
“Some years are good, and some years are not as good,” he said in a recent interview.
The task force, which receives federal funding to break up drug trafficking, handles most of its forfeitures through the federal government, which keeps 20 percent of the proceeds. The remainder is divided among task force member agencies, which include the La Plata County Sheriff’s Office, Durango Police Department, Bayfield Marshal’s Office and Ignacio Police Department.
Forfeitures can be done through the state, but only 50 percent of the proceeds are returned to law enforcement, and it is a more complicated process, Downs said. Defendants also must be convicted before the forfeiture can be completed, which is not the case at the federal level, he said.
The Task Force typically seizes cash and cars. At least one vehicle confiscated from a drug dealer is now used for undercover work by the Task Force, he said. Properties were seized several years ago near Ignacio, but the forfeiture process has not yet been completed, he said.
Seizure funds can’t be used to pay for salaries or to supplant an agency’s budget, Downs said.
“Whatever we spend the money on, we want to improve our ability to do our job,” Downs said.
Most local seizures are a result of drug cases, but forfeiture laws extend to other crimes, he said.
Criminal suspects need to understand that cars, houses and bank accounts are subject to forfeiture if officers can link them back to the criminal activity, even if they are shared by a family.
If someone uses a car to commit a burglary, the car can be seized, Downs said.
Philosophically against it
Risberg said he rarely participates in forfeiture cases, largely for philosophical reasons.
“From my perspective, it’s the government’s responsibility to adequately fund the operation of the criminal justice system,” he said. “I don’t think the system should have to take money from defendants to function.”
It sends the wrong message if police and prosecutors profit from making certain arrests or securing certain convictions, he said.
“Our job is to seek justice without consideration of the financial implications of whether we get a conviction or not,” Risberg said. “We’re supposed to do the right thing. We shouldn’t even consider whether we get money out of it.”
Before Risberg’s election in 2008, the office did “far more” forfeitures, he said.
“There is money in the forfeiture account left over from that time,” he said. “We’ve spent a small amount of it on things that we really needed that we can’t get money for.”
Despite his reservations, Risberg’s office has overseen a handful of forfeiture cases – typically in situations where he thinks the suspect isn’t entitled to a car, gun or cash, he said.
During the past five years, the district attorney’s office has seized about four cars, a motorcycle and a stack of cash from a juvenile drug dealer, Risberg said.
His office also has written letters to commercial property owners where suspected drug deals have occurred warning them that if the illegal activity continues, he will try to seize the property.
Wild Side Smoke Shop, a former head shop on north Main Avenue, closed shortly after Risberg’s office wrote the property owner a letter warning that the business was selling illegal bath salts, and if it continued, he would try to seize the building.
The Durango Police Department doesn’t pursue many forfeitures, said Capt. Don Baker, administration division commander. The department collected about $10,000 last year as a result of being associated with the task force. The money was added to a forfeiture fund that totaled about $57,000 as of last week, Baker said.
The fund has been growing for several years as a result of being associated with the task force, he said.
“Everything we got last year, I think, was from drug proceeds,” Baker said.
Powers are ‘very scary’
Over the years, the government has expanded its forfeiture activity, and it seems to be occurring without successful constitutional challenges, said Durango defense lawyer David Greenberg.
“It’s very scary to me that government can seize real estate and other valuable assets and property without affording notice to the person,” Greenberg said.
The New Yorker reported last month that the government has filed cases with improbable titles such as United States vs. One Pearl Necklace, United States vs. Approximately 64,695 Pounds of Shark Fins and State of Texas vs. One Gold Crucifix.
In civil forfeitures, the government must show a connection between the property taken and the criminal activity. It is a low burden of proof – preponderance of the evidence – essentially tipping the scales of justice. After that, the burden shifts entirely to the defendant to prove the property has no connection with illegal activity.
That is different from criminal law, in which the government must prove its case beyond a “reasonable doubt.”
There have been cases in which someone used a car during a drug deal, and law enforcement seized the car and successfully obtained ownership through forfeiture. But the automobile is owned by a third party who knows nothing about the illegal activity.
“It puts innocent people at risk of forfeiture when it’s totally unfair,” Greenberg said.
He offered another example: If police find cash in close proximity to drugs, they can seize the money and begin a forfeiture process. The criminal suspect must prove the money was obtained through legal means and not in connection with drug sales.
“It’s burden shifting,” Greenberg said. “It’s those kind of things that bother me about it.”
A third example involves real estate. If someone deals drugs or manufactures illegal pot in a house shared by unsuspecting people, they could lose the house.
“There are just far fewer procedural safeguards in the forfeiture arena than there are in criminal law, and I’m not sure that should be the case,” Greenberg said. “These are valuable assets.
“Just because there happens to be money in close proximity to drugs, I don’t know why the burden needs to shift from the government. It seems a little backwards to me.”
Another problem occurs when the government tries to seize property from indigent people who can’t afford a lawyer. The government does not provide a lawyer to those who cannot afford one in forfeiture cases, he said.
Sometimes, the property seized is not valuable enough to justify the expense of a lawyer. But a $5,000 car means the world to a person who needs it to commute to work, Greenberg said.
Downs acknowledged forfeiture laws have been abused in other jurisdictions. But he said the task force takes care in determining what to seize in order to be fair to family members and others who may be adversely affected.
“We’re very careful about the items we seize,” he said. “I feel like we operate under a good realm of common sense, and just because we can do something doesn’t mean we will.”
shane@durangoherald.com
