Did you know that your private property can be seized and kept by police, even though you have not been charged with a crime? You may be totally innocent of any wrongdoing, but police and state prosecutors can still grab your home, vehicles, bank account and any cash you may have available-everything you own.
Worse, you may never be able to get that property returned.
In the summer of 2012, James R. Wilkes was pulled over by West Valley City police and accused of carrying meth. The Salt Lake County District Attorney seized Wilkes’ truck, his Harley Davidson motorcycle, and $18,000 in cash. Drug charges were dropped, but the D.A.’s office refused to return his property.
Wilkes went to court to prove the money came from his own savings and an inheritance from his late father. He explained that he had a one-year-old child, and was now “penniless.”
The DA’s office finally admitted there was no criminal activity connected to the seized assets but still kept the vehicles and part of the money. Only $14,000 was returned.
The War on Drugs and the War on Liberty
The law under which Wilkes and others had property seized is called ‘Civil Asset Forfeiture.’ It was originally part of the War on Drugs, designed to deprive drug traffickers of the profits from their illicit trade.
However, where money is involved, greed grows. In 1985, the U. S. Department of Justice created the Asset Forfeiture Fund. The following year, the DOJ received more than $93 million dollars worth of forfeited funds and property. According to Forbes Magazine, that escalated to one billion dollars by 2008. In April, the state of Texas used the Civil Asset Forfeiture Law (CAFL) to seize the huge YFZ ranch belonging to the Fundamentalist Church of Jesus Christ of Latter-Day Saints.
Drivers in nearly every state in the union can be pulled over by police for innocuous offenses such as not having their seat belt visible, then asked if they are carrying any cash. If so, the officer can confiscate it using CAFL as an excuse.
There’s only one state where things like that can’t happen as easily: Utah.
In 2000, a citizen’s referendum called Initiative B was placed on the ballot. It protected private property rights against growing abuses of the forfeiture law, and was passed by a majority.
Now comes the story of how the Utah Legislature was duped by the state’s then-top cop into signing away private property rights during the 2013 legislative session, and how lawmakers then stood up for the public and restored those rights in 2014.
In 2013, a bill was presented to the Legislature by Majority Leader Brad Dee, who represents Davis and Weber counties. Dee says, “This was during the time when John Swallow was Attorney General. I was approached by the AG’s office, and members of that office told me that the bill was just minor tweaks that we would call recodifications of that law.”
The recodification, or rewrite of Utah’s Civil Asset Forfeiture statutes, seemed a good idea on the surface. The laws governing asset forfeiture were scattered throughout Utah code. Dee was told that the bill would bring all those scattered pieces together into one section.
What happened next is explained by Connor Boyack, president of the Libertas Institute, a Utah-based think tank whose mission statement is to “Advance the cause of liberty within the State of Utah,’’ especially where private property is concerned.
Boyack paints a telling picture of the state’s brief Legislative session. He says, “You have 45 calendar days to get through 800 to 900 pieces of legislation. During the last week, things are at a fever pitch. Here was this bill, about 50 pages long, of entirely new text. No legislator, in the last week of the session, was going to read a 50 page bill (in that) limited amount of time, because they need to focus on their own bills. Especially when the legislative sponsor in this case was in the Legislative leadership, and he assured lawmakers that it contained nothing more than technical changes.”
Dee made that assurance because that was what the AG’s office told him.
The new bill passed unanimously. Dee had read the new bill thoroughly before presenting it in the feverish waning days of the session, believing what he had been told by Swallow’s office. Thus, it was easy to miss an important change. The new bill substituted the word “may” for the existing word “shall” throughout. “Shall” means something must be done. “May’’ turns it into a matter of choice.
“The effect of the new version of the bill was to effectively scuttle initiative B,” says Senator Howard Stephenson.
Lawmakers remained unaware of what they had unintentionally done until the Libertas Institute released a paper revealing it. Legislators were appalled. So were major news outlets like the Washington Post, Washington Times and Forbes magazine. News of Utah’s overturning of the citizen’s initiative made headlines across the country—everywhere but one place: Utah. The local watchdogs of the press were obviously not watching; not one of them reported on a change in the state code that could have had a major effect on the citizens of, and even those passing through, Utah.
No Utah news outlet reported on the unanimous Legislative overturning of the private property protection initiative. Not one TV station, not one alternative weekly, not one newspaper. When asked, Terry Orme, Editor and Publisher of the Salt Lake Tribune, said of this momentous change, “The Utah State Legislature deals with hundreds of bills each session. We cover those we feel most affect Utah citizens. We don’t — we can’t — cover them all.”
Even less of an answer came from the Deseret News. David Schneider, the Assistant Managing Editor, basically passed the buck, directing this reporter to Jared Page, a Deputy Managing Editor in the news division. Mr. Page declined to be interviewed.
What makes the local lack of reporting by press watchdogs even more egregious is that the abuses of Civil Asset Forfeiture have now begun to surface as the next issue regarding police power. America was stunned by the first issue, the militarization of local police divisions. Americans were outraged by police aggressive force and racism in Ferguson. But the abuses of CAFL are so tremendous that many people refuse to believe it. A very frequent reaction is, “This can’t be happening in America!”
The situation has grown extreme so quickly that there’s a thriving practice of CAFL defense right here in Utah. The law office of Darwin Overson is one example. He warns citizens, “It’s imperative that when your property is seized by the government that you obtain legal assistance from a qualified attorney in order to get your property returned. You’re looking for someone who’s familiar with both civil litigation and criminal defense.”
In other words, don’t go to a divorce attorney for a Civil Asset Forfeiture case.
Overson goes on to say, “In civil cases, the burden of proof is significantly lower than it is in a criminal action. That’s why the government files a civil case for forfeiture. Unless a person is represented by an attorney, they rarely get their property returned.”
Kelly Ann Booth, another lawyer specializing in CAFL defense, has an excellent article on her website; “Driving in Utah: What to Do When You’re Pulled Over.” (www.boothlegal.com/driving-in-utah-what-to-do-when-youre-pulled-over/)
However, while coverage of CAFL increases exponentially in national media, Utah is one place where there may not be much to write about in the future.
In January of this year, during the 2014 session, Senator Howard Stephenson helped sponsor a bill that overturned the 2013 changes to the original referendum. It was a new bill that actually contains additional statutes for private property protection.
He explains, “The bill is very well written, and may have improved upon the language in Initiative B by clarifying the process to protect against unreasonable searches and seizures. This whole argument revolves around the 4th amendment, which was very important to our nation’s founders.”
It was passed unanimously by the entire Legislature.
As the old saying goes, all’s well that ends well. In the end, our often-lampooned Legislature did the right thing by restoring private property protection in Utah.