Area Sheriffs and the Badger State Sheriffs' Association are voicing their strong opposition to a proposed bill in Wisconsin (SB61) that would radically change the process for state and local law enforcement agencies regarding civil asset forfeiture.
The two main components of the proposed bill drawing the most attention are the way property is forfeited after it is seized in relation to a crime, and what percentage of the proceeds of the sale of property would law enforcement be able to keep (spoiler alert: none).
As it stands now, local law enforcement may choose to seize property, such as cash and vehicles, if they believe it to have been used in or obtained as a result of a crime, by filing documentation stating the facts to that county's district attorney's office. If the district attorney agrees that there are sufficient facts to support the argument that the property was used in the commission of a felony, then the district attorney files a civil case with the circuit court stating that the state wishes to seize that property through the asset forfeiture process and asking the Court to forfeit the property to the acting law enforcement agency.
Once the case is filed with the court, it is required that the State also provide personal service of those court documents on the individual whose property was seized and then file a Proof of Service Form with the Circuit Court. An individual whose property is seized through this asset forfeiture process has the option to either hire an attorney or file a response on their own with the Circuit Court stating why their property should not be legally seized under the asset forfeiture process. If no response is given by the individual named in the asset forfeiture, the district attorney can request a default judgment from the court, without a hearing, forfeiting the property. The Court decides if that default judgment is appropriate or if a hearing should be held.
The new bill would allow property to be subject to forfeiture only if a person is convicted of the crime related to the action for forfeiture and only if a court finds that the property seized is proportional to the crime committed. The bill requires seized property to be returned to innocent owners of the property unless the owners were involved with or were knowledgeable about the crime related to the property. Further, the bill allows the Court, upon petition by a person whose property was seized but not yet forfeited, to return the property to the person under certain circumstances.
The new bill is aimed at helping the innocent receive their property back sooner without having to jump through all of the hoops, however, this would also potentially give property back to alleged criminals, something that Dean Meyer, Executive Director of the Badger State Sheriffs' Association, tells DrydenWire.com is unacceptable.
“Legislative action that limits or restricts the ability of law enforcement agencies to lawfully seize property and the 'fruits of criminal activity' puts the profit back into criminal activity.
“This bill makes it more difficult for law enforcement to seize property and items a person obtains through criminal activity. Why should someone who is selling drugs be able to keep the cash they made from selling an illegal substance. Why should a person who uses a vehicle during the commission of a crime be able to keep that vehicle. Why should someone who buys a parcel of land to grow marijuana, does it, then gets caught, be able to keep the land,” asked Meyer.
Rep. Romaine Quinn (R-Rice Lake), a cosponsor of the bill, says this bill would help protect the innocent whose property has been seized.
"I believe some reform is warranted in order to protect the property of the innocent. My concern is not with the criminal, but with the person whose property was unknowingly used in a crime, and now has it confiscated and used by the government. This is especially burdensome for those in poverty who do not have the resources to contest a forfeiture (representation is not entitled in a forfeiture pre-hearing). Although I do not support all parts of this bill, I do believe that the government should not be able to take and utilize a person's property until after that person is convicted of a crime."
However, Polk County Sheriff Peter Johnson says that the aforementioned current process has several internal and external safeguards in place to protect the 'innocent owner' of property or cash being forfeited through this program.
“The changes proposed do nothing to further protect the innocent owner other than ensuring the return of the property in question more quickly. While that is not necessarily a bad thing it does so at the cost of also returning criminal proceeds back to the criminal, which will then be hidden or used prior to conviction. After conviction, having a judgment against someone for the value of the property is in most cases worthless. Just look and you will see fines, penalties, and judgments that go unfulfilled indefinitely. The taxpayer and victims of crimes already pay too much for the crimes committed against them. This change just enhances that price.”, said Johnson.
Sen. Dave Craig (R-Town of Vernon), chief sponsor of the bill, said in a recent press release, that “in many instances, law enforcement will bring a suit against property suspected of being involved in or obtained via criminal activity - with no suspect ever charged or convicted.”
Though, Sheriff Johnson would urge people to “actually look at the facts of the cases those in favor of the change are using to prove their point. If they do, they will see that those proposing this change have spun the facts to fit the narrative necessary to argue their point.”
DrydenWire.com has looked into the two cases that proponents of the bill have been using as their Exhibits A and B.
#1 - Walworth “Innocent Owner” Case: (Note: this was not a Walworth County Sheriff's case, but a Whitewater Police Department case). According to a brief circulating among legislators, this 1st 'notable case' states: John Bickley’s car was seized after his daughter sold drugs to an informant three times in 2013. John despite being the owner of the car had no knowledge of his daughter’s activities. The forfeiture was upheld in court and the daughter was never charged with a crime.
To get further information regarding this case, DrydenWire.com spoke with the Whitewater Police Chief Lisa Otterbacher who provided us with the 2014 Wisconsin Court of Appeals ruling.
The Wisconsin Court of Appeals found that the Circuit Court rightfully forfeited the vehicle to the Whitewater Police Department.
John Bickley alleged that despite being the legal owner of the car, he had no knowledge of his daughter’s activities with the car. The forfeiture was approved in circuit court, and although Bickley and his daughter took it to the Wisconsin Court of Appeals, the forfeiture decision was upheld by the Appellate Court who found that based on the daughter's own testimony regarding her usage of the car; the large amount of personal items found in the car which belonged to the daughter; and the lapse of time from when Bickley had last used it, it was clear that the daughter had primary possession and control of the car and that her 'dominion and control' of it confirmed her as the actual owner and that the civil asset forfeiture of the car was appropriate.
#2 - Green Bay Cash Case (Brown County): The 2nd 'notable case' according to the brief states: Beverly Greer of Green Bay tried to bail her son out of jail with $7,500 on 3-1-2012. Jail officials called in the same Drug Task Force that arrested her son and they deemed the money to be related to drug crime and that law enforcement would be confiscating the bail money. This was reported on by many in the media including the Huffington Post: Under Asset Forfeiture Law, Wisconsin Cops Confiscate Families’ Bail Money.
Brown County Sheriff John R. Gossage broke down the case in detail for us (which you can view here) about what really happened, and also provided the following statement in response to this case and his views on the proposed bill:
“The Brown County case cited indicates that law enforcement seized $7,500.00 from Beverly Greer. What it doesn’t report was that Beverly Greer was given the money back on 04-09-12. The current system works. Upon all appearances the $7,500.00 was from illegitimate means, however, the Brown County District Attorney’s office indicated that there may have been commingled legitimate dollars in the total and they sought to forego the seizure and return the money to Beverly Greer.
“The politicians are missing the big picture by entertaining the journalistic prowess that sells newspapers and magazines. It sells articles but inaccurately depicts law enforcement’s actions involving seizures. Law enforcement is but one cog in the wheel of the judicial process involving seizures. District Attorney’s, public defenders and ultimately Judges factor in the decision-making process. The proponents of SB 61 insinuate that law enforcement is seizing assets from innocent people without due process. This is inaccurate.”
Meyer agrees and says “these cases are examples forwarded by the legislators to show the need for the new law, when in fact, the cases didn’t happen the way they are being used to drum up support for the bill.”
Washburn County Sheriff Terry Dryden told us that the legislators sponsoring or supporting this proposed bill apparently believe Wisconsin law enforcement agencies are routinely seizing property of the innocent.
“There are multiple safeguards in place to preserve the rights of those not associated with criminal activity. If you use your vehicle, your home or land to commit a criminal felony you should face the real possibility of forfeiting your property. If others support your criminal activity they as well should face the same possibility. I do not have any sympathy for those who steal from others or feloniously assault the innocent or for drug dealers who whine because they lose the profits of their criminal conduct," said Dryden.
The other main component of this bill would require law enforcement agencies to give 100% of proceeds from seized property to the Wisconsin common school fund. Under current law, law enforcement can keep up to 50% while the other 50% goes to the common school fund.
Barron County Sheriff Chris Fitzgerald told DrydenWire.com, that removing the funds generated from civil asset forfeiture would be very problematic for taxpayers in his county when it comes to law enforcement.
“I am in full support that Law Enforcement should have the ability to seize property used in the commission of the crime - say a car used in drug dealing. The sale of those items are used to fund our drug unit's ability to do their job in a very efficient way - with the ability to purchase new technology to monitor these deals or buy money itself. I hope to never use taxpayer money to do a drug deal but if this bill passes in the current form once our supply is used up we will have to budget dollars to use. We need to build cases against these dealers and that means that they have to sell to our informants on several occasions and this means that our money is not always recovered. I believe what we have is working and there is a process in place to ensure we follow the rules and no rights are violated.”
Sheriff Johnson agrees and says that “Civil forfeiture is an important tool to law enforcement, specifically and primarily in the area of fighting illegal drug use, sale, and possession.”
Meyer also wishes that legislators would think about the appearance and impacts of their statements and legislative actions.
“This bill has no benefit for the average citizen in this state – it benefits the criminals. It is bad for the Wisconsin Criminal Justice system, bad for Wisconsin law enforcement, and bad for the citizens of Wisconsin.”
In a recent communication to his colleagues regarding a memo that had been circulated by law enforcement organizations opposing the proposed bill, Sen Craig said: “Criminal justice policy should focus on punishing the convicted, not raising revenue.”
To which Meyer responded to us, “I can tell you that police officers get hurt or die every day helping people. They don’t wake up in the morning thinking whose property they can take today so the police department can benefit. That is absurd."
The bill was introduced by Senators Craig, Nass, Wirch, Tiffany, Kapenga, Stroebel and Lasee; Representatives Tauchen, Jarchow, Kessler, Kooyenga, Sanfelippo, Sargent, Riemer, Brostoff, Kuglitsch, Thiesfeldt, Quinn, Knodl, Bowen, Kremer, Schraa, Sinicki, Wichgers, Mason, Skowronski and Ripp are cosponsors.
Attorney General Brad Schimel and the State District Attorneys Association, the Wisconsin Counties Association, the Badger State Sheriffs' Association, and the Wisconsin Chiefs of Police Association all oppose the bill.
Last Update: Apr 05, 2017 10:10 am CDT
