Sheriff Leon Lott Drinks His Own Asset Forfeiture Kool-Aid
Dec. 18, 2015 (Mimesis Law) — Last year, law enforcement used civil asset forfeiture laws to take more money from citizens of this country than burglars did by stealing. Hard to tell who is the cop and who is the robber. In Richland County, South Carolina, Sheriff Leon Lott says the forfeiture laws are fine. Kind of like how the fox calls the henhouse the safest place on the farm.
The Institute for Justice is a non-profit libertarian law firm with a purpose. Its goal is to limit both the size and scope of government power over the lives of the little people. Civil asset forfeiture is in the Institute’s crosshairs and the beneficiaries of these laws don’t like it.
Civil asset forfeiture was born from the war on drugs. In addition to putting drug kingpins away for life, the government figured out a way to take all of their ill-gotten profits and return them to a better use. Or at least that was the idea. It probably sounded good at the beginning.
In reality, police and prosecutors quickly figured out the program was the equivalent of a winning lottery ticket. Instead of just taking money from convicted criminals, it was easy to target anybody carrying more cash than the government thought was appropriate. The police take your money, sue you to keep it, prove by a hair that you didn’t have any good excuse for having it, and you lose. A procedure any prosecutor could win, combined with incredible profits, was hard to pass up. And no one passed it up. Fancy new toys, margarita machines, student loan debt. All that extra money was addictive.
South Carolina, like most states, gets a “D” on the Institute’s forfeiture law grading scale. The Institute assigned its grades based on three factors: the burden of proof, the availability and process for an innocent owner to claim property, and the financial incentive to the agency seizing the funds.
Sheriff Lott, the head law enforcement officer in the largest county in South Carolina, took issue this week with South Carolina’s grade.
A media release highlighting data for South Carolina gave the state a report card grade of a D-, saying law enforcement can seize property on a “mere suspicion” of criminal activity. Richland County Sheriff Leon Lott said that description is not true.
“I give the writer an F,” Lott said.
Lott’s problem with the report? He and Dave Wilson, his deputy chief of investigations, claim they need “meticulous evidence” of criminal activity before seizing anything. Not quite.
South Carolina civil asset forfeiture statutes allow the government to keep seized assets as long as they can show by a preponderance of the evidence that the property was related in some way to criminal activity. There is no need to file charges against anyone, much less actually prove they committed a crime.
Any property that could conceivably be linked to drugs, or even found near something related to drugs, can be seized by law enforcement. That initial seizure only requires probable cause, the lowest legal standard we have, to take the property. In lay terms, probable cause is best defined as “pretty much anything.”
Under South Carolina statutes, the money belongs to the police the second they take it with probable cause to believe it was related to criminal activity. Seizure and forfeiture proceedings simply confirm that transfer.
Who initiates those proceedings? The police, of course. They file a petition to keep the money and serve the actual owner with the petition. There is no right to sue for the return of the money. It stays with the police until they file their action “within a reasonable time.” What is a reasonable time? Whatever the police think is reasonable.
The burden of proof in court is “preponderance of the evidence.” In lay terms, that means “more likely than not.” And “barely” more likely than not is perfectly acceptable. The police say the money was for drugs, from drugs, or near drugs. You say it was for something else, like rent. You lose.
And in forfeiture cases, you lose long before you ever get to court. The police already have your money. If you somehow win your case, you don’t get back your attorney’s fees, at least in South Carolina. You need to hire a lawyer out of your own pocket to get your money back, which means even if you win, you don’t win all of your money.
If you are an “innocent owner,” which means your property got taken but you had nothing to do with any crime, you have the burden of proof. It’s your responsibility to convince a court you knew nothing about the criminal activity the cops are claiming. That court you are in is the same one that rarely every questions the cops.
The Institute for Justice pointed out the inherent conflict with allowing law enforcement to profit from enforcement activity. Wilson says they are wrong.
The report also criticized state law for giving law enforcement a strong financial incentive to take property, saying agencies keep 95 percent of the proceeds. That’s inaccurate, Wilson said. When property is seized by civil forfeiture, 5 percent of proceeds go to the state, 20 percent to the solicitor’s office, and 75 percent to the agency seizing it.
Let’s do the math. The solicitor’s office (that is what South Carolina calls its county prosecuting attorneys) gets 20% of the forfeited money. The seizing agency gets 75%. Cops get 75%, prosecutors who work with those cops (and handle the legal side of the forfeitures) get 20%. 75% + 20% = 95%. Just like the Institute for Justice said. Wilson approaches math the same way he approaches forfeiture laws. Ignoring the obvious.
Most states, and the federal government, get failing grades on asset forfeiture laws. And they should. The laws allow the government to take money and property based on criminal activity. But they don’t have to actually prove the criminal activity, just suspect it. And they take the money before they have to start the process of barely proving it was used in a crime, which is all they need to do.
The Richland County Sheriff’s Department is fine with this system. Which is not surprising. It is the agency that receives most of the profits. These laws create an easy way to buy all the toys needed for effective policing. Like armored assault vehicles.
But after working with civil forfeitures for 20 years, Wilson isn’t worried by the criticism.
“We have pretty good laws in the state of South Carolina,” he said.
He added that property seizure can be a useful tool and make a positive impact.
“I think it makes a statement,” Wilson said. “When the community sees the drug dealer in a fancy car with big wads of cash dealing drugs to their children, they want to see that drug dealer taken down.”
Hard to argue with Wilson. Who’s going to deny the children?
The problem with these laws is apparent. They are a way around the presumption of innocence. They are severely slanted against the citizen. They create a huge profit incentive for police and prosecutors.
There is almost nothing in South Carolina law, or federal law for that matter, that protects the innocent from having their money taken by the police. In the event they do get it back, it’s rarely going to be all of it.
These laws don’t just apply to the drug dealer in the fancy car with the big wads of cash. They aren’t just used against the villain selling drugs to the children. If you believe that, Sheriff Lott and his band of merry forfeiters would love to sit down and share some Kool-Aid with you.