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Utah Law Enforcement Officials Mislead Legislature to Oppose Civil Asset Forfeiture Reform

February 5, 2016  |  Posted in: Blog  |  4 comments

When “Initiative B” was being considered in 2000 by Utah voters—a measure designed to limit the ability of government to legally take property from people not convicted of a crime—law enforcement officials strenuously opposed its passage. It passed by 69%.

When “Initiative B” was passed into law, law enforcement officials immediately sought to undermine the law and re-introduce the ability to obtain a part of the resulting proceeds from the confiscated property. As explained by Senator Howard Stephenson in 2002:

Now, just two years after voters approved this law which protects property owners from unfair property forfeitures, a group of Utah legislators and leaders of law enforcement are preparing to gut it. Last week the legislature’s Law Enforcement and Criminal Justice Interim Committee rubber-stamped a bill presented by Clark Harms, Salt Lake County Deputy District Attorney, that would undo many of Initiative B’s reforms.

If you want to know the motives for prosecutors and law enforcement officials pushing these amendments, simply follow the money. Initiative B prevents law enforcement agencies from taking property without convicting property owners of a crime, and then selling the property and keeping the proceeds for the law enforcement budget.

After unsuccessful attempts, law enforcement finally succeeded in 2004 by successfully convincing the legislature to once again allow police agencies to financially benefit from forfeiting property.

In 2013, law enforcement crafted legislation designed to undermine private property and due process protections in forfeiture law, and then stood by silently—and knowingly—while the legislature was misled into believing that the lengthy change to forfeiture law was only technical and superficial, as opposed to substantive. Our policy analysis, written a few months later, highlighted what law enforcement had done. To correct this gross error and restore these deceptive changes, we proposed legislation designed to restore these changes.

The Attorney General’s office penned a misleading response designed to thwart that effort. We rebutted the letter, and our proposal passed unanimously, re-introducing into forfeiture law the private property and due process protections that law enforcement had undermined.

Now, in an effort to thwart the effort to reform civil asset forfeiture by requiring a criminal conviction as a basis for legally confiscating a person’s property, law enforcement officials are once again playing fast and loose with the facts.

The Utah County Law Enforcement Executives Association—comprised of the Utah County District Attorney, Sheriff, and police chiefs from around the county—wrote a letter full of misleading and inaccurate information designed to encourage legislators to oppose the bill. The letter was supported in a separate letter by the Utah Chiefs of Police Association, saying it “agrees with, endorses, and reiterates the sentiments expressed.”

Representative Brian Greene, sponsor of House Bill 22, distributed the following letter to his colleagues in response to the above-mentioned letters, refuting the inaccurate claims made about the bill. We include it below with his permission.


Letter to colleagues from Representative Brian Greene

House Bill 22, Civil Asset Forfeiture – Procedural Reforms, introduces and restores some important reforms to civil asset forfeiture—the legal ability of government to seize and keep property of individuals not charged with, let alone convicted of, a crime. The bill, drafted over two years and recommended favorably during interim, passed out of the House Judiciary Committee unanimously.

Law enforcement and prosecutors object to the bill, just as they objected to the statewide “Initiative B” in 2000 that first put in place protections for citizens on civil forfeiture in Utah (which passed by 69%). Immediately after the passage of Initiative B, these groups set out to undermine the expressed will of Utah voters by ensuring that the financial proceeds of civil asset forfeiture (taken from individuals who have not been convicted of a crime) could once again flow back to law enforcement agencies. Successive modifications to the civil asset forfeiture statute, proposed by law enforcement and prosecutors, have effectively eliminated most of the reforms accomplished by Initiative B. HB22 seeks to restore some of those reforms, without touching the parallel criminal forfeiture procedure.

The Utah County Law Enforcement Executives Association recently distributed a letter of opposition to HB22—one which is replete with misleading claims and factually incorrect statements. The following is my rebuttal to their shameful act of fearmongering.

Irrelevant information

The UCLEEA letter takes half a page to share a few statistics “to put the problem in perspective,” first highlighting seizures from drug trafficking organizations—seizures which HB22 still allows to occur, and which can be forfeited criminally as under current law. And, it’s important to note, these drug trafficking organizations are a very small minority of overall forfeitures—the overwhelming majority of which are under $5,000 in total value.

The “perspective” information then discusses the financial aspects of drug cartels, nationwide heroin use, Utah’s well known prescription drug overdose problem, and the increased rate of newborns exposed to drugs while in utero. None of this has anything to do with HB22.

This is an attempt to lead you to believe that HB22 would somehow “support drug dealers, criminals, and large cartels.” To the contrary: HB22 supports private property rights and due process by ensuring that the government can only take property from individuals (including drug dealers, criminals, and large cartels) upon a showing that the property is actually linked to the alleged crime. Many have argued that HB22 doesn’t go far enough because it still allows property to be seized in the absence of a criminal prosecution and/or conviction.

No examples of abuse?

UCLEEA claims that proponents of the bill “have NO documented examples of abuses by police or prosecutors” (emphasis in the original). This is completely false. The proposed reforms have been the subject of multiple committee hearings over the past year wherein multiple examples were presented in detail, and testimony from individuals whose property interests had been violated through the civil forfeiture process was received. As one example of many, the Garcia family was passing through Utah to a wedding in Idaho on April 15, 2014. Stopped in Weber County by police for having a tinted license plate cover, they had $14,170 taken from them—money they had pooled together to help pay for the wedding and give to the newlyweds. The money was taken by police at the roadside stop while the Garcias were sent on their way—not charged with any crime. Prosecutors held the property for eleven months before relenting and releasing it (after the Garcia family incurred substantial attorney fees). No drugs or illegal conduct was ever found.

Other examples exist, and for brevity’s sake will not be included (but I’m happy to share in person, if interested). To simply claim that NO examples have been provided is absurd.

“Policing for profit”

Proponents of forfeiture reform sometimes use the above-listed term when describing forfeiture, due to the financial incentive that exists for law enforcement and prosecutors to obtain revenue by taking property from those not convicted of a crime.

In their letter, UCLEEA references some of the reasonable uses of forfeiture revenue: drug courts and crime victims. Mr. Platt, a Salt Lake County prosecutor, made this same point during his committee testimony as well.

What both Mr. Platt and UCLEEA are not telling you, however, is that most forfeiture revenue is redirected back to the law enforcement agencies that participate in the asset forfeiture grant program. For example, in FY2014, CCJJ disbursed $729,747 of forfeiture proceeds to 25 state and local law enforcement agencies. Forfeitures in which state and local law enforcement participated with Federal agencies accounted for another $848,204.44 to law enforcement agencies during the same year. This financial incentive was eliminated by Initiative B, which is why law enforcement immediately set out to undermine it after passage. HB22 simply recognizes the will and wisdom of nearly 70% of Utahns by restoring this important protection against perverse incentives.

It’s important to note two things. First, HB22 does not in any way impede criminal forfeiture. Those convicted of crimes will—as they should—have the proceeds of their crime taken from them. Thus, the letter’s references to Utah becoming a sanctuary for drug cartels and drug trafficking are misleading fearmongering; this bill is designed to protect innocent owners. In 2014, 69.2% of forfeitures were under $5,000 in total value. The overwhelming number of cases are not the drug cartels to which opponents refer.

Second, despite the importance of funding drug courts and the Crime Victims Fund, these programs should not be funded by proceeds taken from innocent individuals. This point was emphasized in committee testimony. It’s perfectly legitimate to divert criminal forfeiture revenue to these worthy programs, but prosecutors should not be allowed to take property from people not charged or convicted with a crime, even if it is used for beneficial government programs.

False Claims about House Bill 22

UCLEEA falsely claims in their letter that HB 22 “works to protect drug cartels, not innocent owners.” This wildly inaccurate statement is then supported by three assertions, each of which is not at all correct.

“Lines 102-105 create a loophole. Under this language, a pimp exploiting a young woman engaged in sex for money would claim the money, and be entitled to get it back.”

This argument is absurd and reflects an intentional deception or complete lack of understanding of the law. Lines 102-105 specifically exclude as an “innocent owner” anyone who has “participated in” or “given permission” for the illegal conduct, or who “solicits,” “commands,” “encourages,” or “aids” another person to engage in illegal conduct. Only complete incompetence would prevent a prosecutor from establishing the culpability of a pimp under these standards.

“That loophole is repeated at lines 150-156. Under this language, a person found with $90,000 in cash and 30 pounds of heroin during execution of a search warrant would be entitled to a return of all the cash, unless surveillance had observed the actual transaction producing the $90,000 cash (which, of course, is almost impossible to achieve).”

What law enforcement executives call a “loophole”, the law calls due process and burden of proof. The “direct nexus” requirement between the property seized and the illegal conduct serves two important purposes: First, it is a reflection of the high level of protection of private property afforded by the constitution—even a “criminal” is entitled to such protection of legitimately acquired property; and second, it seeks to prevent the common “blitzkrieg” practice of seizing everything and anything, and then engaging in a “settlement exercise” with the owner where the owner must “agree” to forfeit some assets to recover others.

The assertion that a forfeiture action can’t succeed unless law enforcement actually surveil the transaction is as nonsensical as suggesting that a murder, or any other crime for that matter, cannot be solved without a video recording of the event. The direct nexus provision requires nothing more than that law enforcement and prosecutors do the job that the public expects them to do—investigate, collect evidence, build a case and prosecute.

Due process and burden of proof are hardly new concepts created by this bill. They are, however, protections guaranteed by a much older bill—the Bill of Rights.

“Alternatively, the $90,000 would be used to pay for an attorney (line 401) rather than be forfeited to CCJJ to remedy the harmful effects of heroin on our communities.”

The complaint about seized property being subject to release for purposes of “paying for an attorney” reflects a misunderstanding of, or an attempt to mislead about, existing law. The forfeiture statute already allows for the judicial release of seized property for hardship purposes, and, in practice, this provision is commonly relied upon by defendants to obtain the resources necessary to secure legal representation. The inclusion of a specific reference to this purpose within the list of other specific and general purposes doesn’t change the practical application of the statute —it merely acknowledges it.

What should be alarming, however, is that within the letter’s criticism of this provision is the implied opposition to a defendant’s access to legal representation. Perhaps, this is reflective of a fear that legal representation of defendants will disrupt the “fast-track” practice of resolving most civil forfeiture cases by default or stipulated judgment. The law should impose a high bar for taking property from individuals not convicted of a crime—and those who have taken an oath to protect and defend the rights of citizens should understand and accept that difficult standard.

Conclusion

UCLEEA claims that HB22 is a “solution in search of a problem,” when the truth is quite opposite. There’s a reason that many states are moving away from civil asset forfeiture: New Mexico and North Carolina have abolished it completely, while Montana, Minnesota and others require a criminal conviction as a prerequisite for civil forfeiture. The reforms proposed by HB22 are modest in comparison, and still allow the use of civil forfeiture, contrary to the claims of UCLEEA.

If, as UCLEEA asserts, HB22 would result in a complete discontinuation of asset forfeiture as tool, that result would be entirely by their choice. That statement looks very much like an admission that profit motive is the driving force behind the current use of asset forfeiture. Fortunately, I don’t believe that would be the result, as it has not been in states that have imposed much stronger reforms that HBB22 proposes.

The 2016 Real State of the State

January 28, 2016  |  Posted in: Blog  |  2 comments

Last night, Governor Gary Herbert addressed government officials and members of the public to deliver his annual “State of the State” address. He touched on job creation, education, air quality, self-reliance, and health care, among other issues. Below, we present the real state of the state—one that does not rely, in whole or in part, upon politically popular issues that poll well with key constituencies.

What is the state of the state?

Governor Herbert posed this question to the assembled audience, answering it in the affirmative—that the state is strong, and even “outstanding.” Nevertheless, the state faces significant challenges that were not addressed in the speech, and need serious scrutiny in order to protect the rights of each Utahn. We would disagree with the Governor’s assessment; while it’s easy to point to the growth of the market as a leading indicator of the government’s performance, this data point is peripheral to the underlying issues where the state is not performing very well.

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#PatientsNotCriminals Press Conference

January 14, 2016  |  Posted in: Blog  |  No comments

Over three dozen patients gathered to show the public that they are patients, not criminals, and that the law needs to change to allow them to use medical cannabis without fear of prosecution. Salt Lake County District Attorney Sim Gill joined the group to call for fixing our failed drug policy, and ensuring that he as a prosecutor does not have to prosecute sick and suffering Utahns for the sole reason that they have used cannabis to help themselves.

Due to a technical error, only the second half of our press conference was recorded. Here are media reports from the event:

Libertas Institute Announces New Director of Development

December 31, 2015  |  Posted in: Blog  |  One comment

Libertas Institute announces its latest hire—our new director of development: Chris Jones!

Chris Jones joins Libertas after a lengthy stint in the private sector as branch manager at City First Mortgage Services. Over a thirty-year career in and out of politics, Chris has been involved in public policy and election campaigning at every level of the political scene.

Growing up just outside Washington D.C., Chris was traipsing through the halls of Congress from the time he could walk. His first summer job—when he was thirteen—was as an intern at the National Republican Senatorial Campaign Committee under Mitch Daniels, now Governor of Indiana. He also worked at the Heritage Foundation and United Families of America before spending two years behind the Iron Curtain in Hungary.

Chris graduated from Brigham Young University with a B.A. in Classics. His battlefield political experience includes a city council race, two terms as legislative district chair, a run for state legislature, three congressional campaigns, the Gary Herbert for Governor campaign and a stint as National Field Director of the Alan Keyes presidential campaign in 2000.

A prolific writer, Chris is the author of two books on marketing communications (one an Amazon top 25 honoree) and dozens of essays on political theory and policy, including the 2013 Libertas Essay Contest winner. He now resides in Lehi with his wife Jeanette and their eight children.

Curious to know more? Send Chris an email at chris@libertasutah.org.

Fourth Poll Shows Majority Support for Medical Marijuana

December 14, 2015  |  Posted in: Blog  |  One comment

A newly released Dan Jones poll shows sustained public support for legalizing medical marijuana.

According to the poll, 61% of Utahns support legalization—with the strongest numbers coming in from senior citizens.

These numbers are generally consistent with previous polls conducted on the issue over the past year. A poll commissioned by our organization in February, and conducted by Y2 Analytics, indicated that 72% of likely voters felt that doctors should be allowed to recommend cannabis as a treatment option for serious illnesses.

A poll conducted in March by Dan Jones found that 66% of Utahns supported legalization of medical marijuana under a doctor’s supervision. These numbers show an increase in support from a Salt Lake Tribune poll the year prior that indicated 51% support.

That increasing number is ostensibly due to the rising public awareness of the many beneficial uses of the cannabis plant for a variety of conditions, and the willingness of some patients to openly explain their precarious medical situation—and illegal cannabis use.

While a competing CBD-only bill has now been filed, it is unlikely that the same public support exists for a limited option that prohibits THC, threatens sick Utahns with fines and jail time, and denies doctors a beneficial treatment option that their patients need.

Winter 2016 Internships Available

December 3, 2015  |  Posted in: Blog  |  No comments

Libertas Institute has a winter legislative internship available for college students or recent graduates. Join our successful organization to help advance the cause of liberty in Utah!

We are in need of policy research and lobbying assistance to support the legislative proposals Libertas will be advancing in the 2016 legislative session beginning in January. See here for an example of recent policies we have worked on.

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Libertas Institute Announces New Director of Communications

November 16, 2015  |  Posted in: Blog  |  No comments

Libertas Institute announces its latest hire—our new director of communications: Nichelle Aiden!

Nichelle brings a combination of acting and writing experience to the table and will help transform Libertas’ successful policies into engaging and impactful stories that make a meaningful difference to each Utahn. She will, in short, be our organization’s chief storyteller.

Speaking of her new position, Nichelle said, “I am thrilled to join the team at Libertas Institute. I love telling real, beautiful stories and connecting with people—that is exactly why I act and write. I’m excited to bring my talents to the cause of liberty in Utah; freedom is something we all relate to and desire, and yet so many of us don’t understand what it really means. I believe Libertas has powerful messages and stories to share, and I’m beyond excited to help tell them in ways that resonate on a deep level with each Utahn.”

Nichelle studied journalism at Utah Valley University and has been writing stories since she was a kid. She has been working as an actress in both Utah and Los Angeles for the last seven years and is currently preparing to write and direct her first short film. In her spare time she studies film, writes, rock climbs, enjoys the outdoors, and loves spending time with her nieces and nephews.

Curious to know more? Send Nichelle an email at nichelle@libertasutah.org.

Common Core Lawsuit’s First Legal Hurdle

October 15, 2015  |  Posted in: Blog  |  No comments

The district court heard the Utah State Board of Education’s motion to dismiss our Common Core lawsuit on Tuesday. The hearing is an early procedural tactic by the state to terminate the lawsuit by arguing that the law does not support the suit. Interestingly, the state’s arguments ignored the substantive complaint against the adoption of Common Core and instead focused on purely procedural matters. While procedural matters are important and are frequently deal breakers in litigation, this attempt shows that the Board is not interested in rectifying the disservice it did to Utahns when it refused to follow the process set forth in law to consult parents, teachers, administrators, and local school boards in adopting new curriculum standards.

One argument made by the state challenged the standing of the parents and teachers to sue by reasoning that the adoption of curriculum standards was not an issue of significant public interest implying that parents and teachers have no interest or right in determining the curriculum standards used to teach their children and therefore should have no legal remedy. This is despite the fact that state law specifically states that in “establishing minimum standards related to curriculum and instruction” the Board shall consult with local school boards, teachers, parents, and others.

Another argument the state made was that the two-year statute of limitations to sue had run out because the standards were “in effect” well before they were actually in effect in schools. While the first full school year for which the standards are being used is this year, the Board’s position is that parents and teachers had to act back in 2012 or 2013 to challenge the standards. This shows the inherent problems with large controversial administrative changes that are made, but not fully implemented, until years later—it potentially leaves harmed Utahns without judicial remedy.

Perhaps the most deceptive argument the Board made was that the statute envisions a two part process of adoption of the standards and implementation of standards and that the requirement to consult parents and teachers only applied to their implementation. This is not supported by the statutory language as the word adopt didn’t even exist in statute until 2014—four years after the Board signed up to impose Common Core in every public school in Utah. The statutory phrase in effect in 2010 was “establishing minimum standards” and seems clearly intended for the Board to consult with parents and teachers as a part of establishing/adopting the standards. The creative interpretation of this provision by the state aims to undermine this intent.

The judge asked for some additional briefs on a few items and said she would issue a ruling on the state’s motion in court on November 3rd.

How Much Force are Utah Police Using?

August 14, 2015  |  Posted in: Blog  |  2 comments

Last year, Libertas Institute proposed legislation to bring transparency to law enforcement, specifically to high-risk warrants and SWAT team deployments. The first annual report—a requirement of the legislation—was published today by the Commission on Criminal and Juvenile Justice.

The report includes information provided by law enforcement agencies around the state for the year 2014. Sadly, and in violation of the law, only 75% of agencies contacted provided information for the report.

Here are the key findings from the report:

  • There were 559 unique incidents in 2014, defined as a search warrant served using forcible entry (no knock or knock and announce) as well as all deployments of tactical teams.
  • Warrants were utilized in 96% of all reported incidents, with forcible entry being
    employed 61%
    of the time.
  • 83% of forcible entry warrants dealt with drug crimes.
  • Weapons were only present in 0.5% of the incidents reported.
  • Less than 1% of incidents resulted in an officer discharging his or her firearm.
  • Three civilians were injured and three were killed in 2014, with zero law enforcement fatalities/injuries.

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Utah Attorney General’s Office Seeks to Dismiss Common Core Lawsuit

August 3, 2015  |  Posted in: Blog  |  2 comments

One year ago, Libertas Institute announced a lawsuit against the State Board of Education over its adoption of Common Core, alleging that the Board had violated two laws in so doing—both of which dealt with public notice and input. The Board’s violation thus prevented Utahns from seeking to alter or oppose the untested standards, and led to them being hastily implemented in this state.

Since that time, attorneys for the plaintiffs have been involved in discovery requests, reviewing documents generated by the Board relative to Common Core’s adoption and implementation. However, the Attorney General’s office has now filed a motion to dismiss the lawsuit altogether.

The AG’s office, representing the Board, claims the following:

  1. The plaintiffs cannot bring the lawsuit against the Board, because the clock has run out—the “statute of limitations” has expired, and so no lawsuit against Common Core’s implementation is valid.
  2. The plaintiffs must file an administrative appeal through the Board itself, rather than suing in court.
  3. The plaintiffs lack legal standing to sue the Board, and therefore the lawsuit should be dismissed.
  4. The plaintiffs failed to state a valid claim upon which relief may be granted.

You can read the AG’s 36-page brief here. It is effectively a procedural argument, attacking the plaintiff’s standing, the court’s ability to even hear the case, and the timing of the lawsuit itself. Critics might reasonably infer that because the Board’s violation of the law is clear, this is a desperate attempt to make the lawsuit go away without arguing the merits of the arguments themselves.

The attorneys for the plaintiffs—a group of educators, employers, and parents—have just filed a 17-page motion in opposition to the AG’s request, which you can read here. The arguments are as follows:

The statute of limitations does not apply; the clock has not run out

Challenging administrative rules must be done within two or four years of an agency’s rule’s “effective” date, but the Common Core standards have never become effective as that term is defined under law, because the standards were never adopted as a rule; there is no effective date if there is no rule. Additionally, the standards were not “operative and enforceable” until 2014, making the filing of the plaintiffs’ claims well within the two or four year statute of limitations.

The plaintiffs can’t file an administrative appeal; the court does have jurisdiction

The court has subject matter jurisdiction because administrative remedies were unavailable to the plaintiffs, as the Common Core standards were never adopted as a rule—a prerequisite to making an administrative challenge. The plaintiffs’ only recourse is to file a lawsuit to force the Board to use the administrative process in adopting and implementing CCS, so that the plaintiffs can then seek administrative remedies. The Board is effectively seeking to deny the plaintiffs any remedy by refusing to follow the law.

The plaintiffs clearly have standing to sue the Board

The plaintiffs have traditional standing in seeking declaratory relief by the court. They suffered a palpable injury because they were not allowed an opportunity to give input on the Common Core standards under the Utah Administrative Rulemaking Act (UARA). They also have statutory standing both under the UARA and Utah Code § 53A-1-402.6(1). UARA allows an interested person to request the making, amendment, or repeal of a rule. Utah Code § 53A-1-402.6(1) requires the Board to consult with school boards, school superintendents, teachers, employers, and parents when implementing core standards. Both statutes afford the plaintiffs statutory standing to bring this action, in addition to the declaratory relief law.

The plaintiffs also have public-interest standing in seeking declaratory relief, as they are appropriate parties and the violation of UARA is an issue of significant public importance. The claims raised by the plaintiffs are justiciable. By granting them declaratory relief, the court will settle the issue of whether Common Core standards should be implemented as a rule and subject to the administrative procedure. The plaintiffs can then challenge the standards under UARA as intended by the statute.

The plaintiffs do have a valid claim upon which relief may be granted

The Board argued that since the standards only affect students, the plaintiffs do not have a valid claim and therefore cannot seek judicial relief. But the Common Core standards apply to parents, teachers, school employees, and students—not only to students enrolled in state education institutions as asserted by the Board. Thus, the rulemaking procedures of UARA are applicable to the Common Core standards.

Obviously, the motions themselves contain far more detail than is here presented. Suffice it to say that the Attorney General’s office is avoiding the merits of the plaintiffs’ arguments by repeatedly delaying the procedural hurdles involved in the lawsuit (they had a few things going on with same-sex marriage) and now attempting to quash the lawsuit altogether. The plaintiffs and their attorneys remain quite convinced of the procedural and substantive merits of the case, and eagerly anticipate a favorable judicial review of this motion so that we can move on to the arguments themselves, and force the Board to comply with the law.

The Utah legislature intended for education standards to be vetted and discussed prior to statewide implementation; changing what hundreds of thousands of children are learning about is something that requires public input and awareness. As such, both the rulemaking process and statute itself require public input and involvement—both of which were denied while Common Core was quickly pushed through, despite these standards never being piloted, researched, or proven prior to implementation. Utah children were therefore turned into pedagogical guinea pigs by the Board’s mandate. We seek to hold the Board accountable.

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