When Ming Tong Liu was pulled over for speeding by a Mobile County Sheriff’s deputy in 2013, he was carrying $75,000 in cash he had saved to buy a restaurant in Louisiana — money the officer seized because he didn’t believe Liu’s story.It took months of costly legal proceedings for Liu to get his money back, but the window to purchase the restaurant had closed. In the end, the only crime Liu was ever accused of was going 10 mph over the speed limit on Interstate 10.
“He had the burden of proving his money wasn’t involved in criminal activity, and that just turns the entire notion of criminal justice on its head,” Shay Farley of the Southern Poverty Law Center (SPLC) said. “Nobody is going to argue that narcotics or drug paraphernalia don’t need to be taken off the streets, but it should take criminal prosecution to forfeit someone’s property, because property is a fundamental right.”
In a criminal proceeding, law enforcement has to prove an asset was connected to illegal activity in order to seize it. Through civil forfeiture, however, agencies can seize assets without charging a person with a crime, then require the individual to prove innocence in court.
Recently, the state has found critics of its forfeiture practices across the political spectrum. Alabama was recently ranked “among the worst in the nation” in a review of state forfeiture policies by the Institute for Justice. The situation has also created some unlikely allies pushing for reform in the lucrative program many law enforcement agencies are eager to defend.
Civil forfeiture in Alabama
While civil forfeiture laws were originally intended to target ill-gotten gains associated with the drug trade, Alabama has since expanded its reach to include any felony offense. There’s also no limitation on the type of property that can be seized.
Under the law, police in Alabama can seize “any property, proceeds or instrumentality of every kind.” It’s also one of 13 states where agencies aren’t required to keep public records showing what they’ve confiscated, why or what it is worth.
In addition to cash, narcotics and paraphernalia, authorities can seize vehicles, boats, planes, computers, camera equipment, weapons, jewelry and real estate. While items taken during the execution of a search warrant are typically pre-approved by a judge, other times — as with Liu’s $75,000 — they are not.
Regardless of how it is acquired, though, agencies can’t keep seized property until it’s been approved by the judicial system, although they get to decide whether to take a forfeiture case through the state court system or the Department of Justice’s “Equitable Sharing Program.”
There are a number of reasons a local or state agency might pursue a civil forfeiture through the federal system, but Mobile County Sheriff Sam Cochran told Lagniappe the amount of money the agency stands to receive is typically a factor in the decision.
“It’s changed over the years, but at one time, the state was taking a bigger chunk out of seizures than the feds were, so you could maybe get more money back by going through the federal system,” Cochran said. “Some of that is based on those ultimate results.”
A legal adviser for the Mobile Police Department said there are other times when forfeitures might go through federal court “due to the more rapid turnaround of their court proceedings,” though it isn’t something that occurs often with MPD cases.
While it was temporarily halted and then reinstated during the final years of the Obama administration, the Equitable Sharing Program allows police to keep up to 80 percent of seized assets — a better deal for law enforcement than many state policies, but not Alabama’s.
Here, 100 percent of forfeiture proceeds processed in state court go to law enforcement unless otherwise specified by a judge. When those state cases are brought, district attorneys are required to argue on behalf of the seizing agencies, often for a share of the proceeds.
“We’re responsible for any forfeiture being put through the state court system. It’s a service we’re required to provide to all law enforcement in Mobile County,” District Attorney Ashley Rich said. “We don’t make any money off of forfeitures from the percentage we get, though.”
Rich said her office doesn’t track individual assets from forfeiture cases, but does keep an accounting of the revenue it receives for handling them. Through an agreement with local agencies, the office receives 30 percent of any cash collected from a successful forfeiture.The office previously took a 10 percent cut, but Rich negotiated an increase with local agencies after the office lost $146,209 processing forfeitures between 2009 and 2014.
However, even with an increased share of the proceeds and a higher case volume generating roughly $149,000 in revenue last year, Rich’s office still recorded a net loss in 2016.
“We have a full-time staff member and a full-time lawyer who handle these cases,” she said. “When you take what we actually deposited from our 30 percent and subtract their salaries, we didn’t make any money last year. We actually lost $2,000.”
A “strong incentive to seize”
While some prosecutors might be losing money from handling civil forfeitures, local and state law enforcement agencies haven’t had the same problem.
The DOJ reports the details of the equitable sharing program to Congress annually, and according to those reports, dozens of agencies received more than $75 million in equitable sharing proceeds from 2000 to 2013 — ranking Alabama 31st in profits from federal forfeitures.
Locally, MPD seized $307,718 worth of cash and physical property between 2010 and 2015, while MCSO collected $1,675,606 in cash and assets during the same period. Those figures don’t include the tens of thousands of dollars received by the Mobile County Street Enforcement Narcotics Team in which both agencies participate.
The data also doesn’t specify the cases those forfeitures came from or how the money was spent. However, a lack of reporting requirements for forfeiture proceeds secured in Alabama’s court system make it nearly impossible to determine how much agencies are collecting at the state level, let alone what they’re doing with it.
Lagniappe requested lists of seized assets or monies collected by MPD and MCSO at the state level, but neither was able to produce one for inclusion in this report.
However, MPD’s legal counsel did confirm “banking records are kept” for the department’s state and a federal “drug fund(s),” and a public information officer said seized physical assets are either “utilized by the department or auctioned, depending on [their] usability.”
Asked whether MCSO keeps similar records, Cochran said, “Not really because it’s so convoluted.
“It’d be really difficult to track because they all come from so many different sources,” he added. “We track some of it, but it’s not always everything. So, we don’t have the exact records, and we’d have to develop records to make them.”
Even finding state cases in a court database can be difficult because the actual items police have seized are listed according to the defendant, such as “State of Alabama v. Two Hundred Six ($206.00) Dollars” or “State of Alabama v. One 2003 Toyota Corolla.”
Last month, attorneys with the SPLC released an analysis of hundreds of civil forfeiture cases, and their report concluded that cases in dozens of Alabama counties were “styled (or named) in such a way that made it impossible” to analyze them.
The SPLC found police in nine counties — representing nearly 30 percent of the state’s population –— seized more than $2 million in cash through civil forfeiture procedures in 2016.
“Because of Alabama’s lack of a reporting requirement, there is no way to track the value of all property seized beyond cash — vehicles, computers, jewelry, weapons and more — but where it counted, the total value of seized property would almost certainly far exceed the roughly $2 million in cash seizures identified by the SPLC,” the report added.
While Mobile County wasn’t included in the analysis, if the $149,000 Rich cited in her 2016 forfeiture deposits is truly 30 percent of the cash local agencies received from state forfeitures last year, the total collected in 2016 would be somewhere close to $500,000.
There’s no way to determine how funds were divided among county and municipal agencies, but that number is greater than totals reported from seven of the nine counties analyzed by the SPLC — behind the $1,162,130 seized in Jefferson County and the $611,147 collected by agencies in Tuscaloosa County.
While the above numbers for Mobile County are estimates based on the data provided by Rich’s office, the Alabama Department of Examiners of Public Accounts — as it regularly does — audited MCSO in 2015. The results of that audit provide some insight into how much the office can receive from civil forfeitures.
From May 1, 2012 through July 31, 2015, the agency reported $567,455.08 in total forfeitures, but the data doesn’t specify what percentages were derived from federal or state court nor any information on how the money was utilized.
Previously, Cochran has told Lagniappe all the money his department receives from forfeitures is considered “discretionary funding,” which is audited by the state but isn’t under the purview or oversight of the Mobile County Commission.
In the past, Cochran has used his discretionary funds to pay for equipment and personnel as well as vehicles and construction project exempt from state bidding requirements.
Existing accountability measures
While critics of Alabama’s civil forfeiture laws say they require “no transparency or public accountability,” most law enforcement agencies disagree, even those who do not benefit from it financially.
“There’s oversight by each individual judge that monitors these cases, and then we’re audited on a regular basis just like the individual agencies,” Rich said. “To have something forfeited, you have to prove it’s connected to illegal activity, and the judge decides whether you’ve met that burden. There are often times when we are not able to prove that, [and] the case is thrown out.”
When officers confiscated thousands of dollars’ worth of pipes, bongs and other devices labeled “drug paraphernalia” from 10 local convenience stores last month, they also seized $508,537 in cash and frozen bank assets and video surveillance equipment.Rich said her office was prepared to argue “the vast majority of money” in those bank accounts had come from the illegal sale of drug paraphernalia.
However, former MPD Chief James Barber said investigators were still evaluating what culpability the stores’ owners had at the time.
Hassan Arjmand is an owner of one of the convenience stores, and though one of his employees was arrested on a misdemeanor paraphernalia charge, Arjmand hasn’t been charged with a crime himself.
Yet two of his business’ bank accounts containing roughly $35,000 were frozen and another $30,000 in was cash seized from a safe at his store. Attorney Skip Brutkiewicz, who filed a civil complaint on Arjmand’s behalf the day after the raid, told Lagniappe he believes the officers who executed the search warrant “didn’t have any right” to seize those funds.
It appears Mobile County Circuit Judge Roderick P. Stout at least partly shared this belief because he ordered authorities to unfreeze Arjmand’s bank accounts shortly thereafter.
“There was no follow-up pleadings after the seizure to explain why it was they felt entitled to seize the cash and freeze those accounts,” Brutkiewicz said. “Certainly you can’t say almost $65,000 to $70,000 was the product of selling these less-than-five-dollar glass pipes, especially when they sell no telling how much fuel every day at one of the busiest intersections in town.”
Another store owner, Nham Nguyen, has filed an identical complaint claiming MPD’s actions were “overbroad, willfully oppressive” and “and a misuse of the criminal process.” Two other owners also filed an unsuccessful motion to intervene in Arjmand’s case last week.
Brutkiewicz also touched on another point forfeiture critics often bring up: the effect the process can have on a person even when the court returns their property.
“It appears to me this was either not well thought out, as to what it might do to a legitimate corporation, or an attempt to shut the business down,” he said. “That money was used to pay vendors. They were also unable to get any kind of account at other banks because word spread pretty quickly. It was basically putting these people out of business.”
Calls for reform, pushback
A bill filed by Alabama Sen. Arthur Orr could add some additional reporting requirements for agencies receiving forfeited property by requiring annual reports to the Alabama Attorney General’s office detailing those activities and authorizing the office to enforce compliance.
“The state supports district attorneys’ offices in its budget to the tune of $30 million a year, and there’s a lot of forfeiture money that’s being collected out there, especially along the interstates in areas with a lucrative drug corridor,” Orr said. “But, you have other areas that don’t have that same off-the-grid revenue stream, and there needs to be more transparency.”
However, Orr’s bill quickly met with opposition from the Alabama Sheriffs Association and the Alabama District Attorneys Association, which said it could reveal “equipment used for surveillance and undercover operations” that many agencies purchase with forfeited money.
In a letter to all district attorneys, ADAA claimed even providing the circumstances and grounds upon which property is seized when no felony conviction is obtained could “give away tactics and strategies” used in drug “interdiction” — a military term for “delaying, disrupting or destroying enemy supplies.”
In particular, Rich took issue with a provision that would require law enforcement to disclose where seized assets are located, even when the case surrounding them is pending.
“We have an obligation to ensure the safety and security of those items, and we have to maintain them in our control and in their current condition at all times pending a forfeiture,” Rich said. “So, why in the world would we want to to disclose to the public where we’re housing those items?”
With that said, even Orr has admitted there “may be some validity” behind claims from law enforcement that his bill is “too onerous, burdensome and bureaucratic.” However, with limited time in the remaining session, Orr said he’s still “committed to the principle of the bill.”
Other than the additional red tape, Cochran criticized Orr’s bill as another attempt by the state “to identify something to put their hands on it and get it for themselves.” Yet, while some may write off Orr as a politician and the SPLC as a liberal organization, they aren’t the only ones calling for changes.
The conservative Alabama Policy Institute has taken a similar position, and a study urging reforms by the Heritage Foundation, a conservative research group, specifically listed Liu as one of the “many innocent motorists” who’s been “stopped and harassed by authorities.”
When asked about that case, which occurred during his tenure as sheriff, Cochran recently said Liu’s 2013 traffic stop appears to have been handled how it should have been under the law.
“He may truly have been totally innocent or it may be that they lacked the the evidence to [prove it] was from drug proceeds, but it is unusual to be driving down the highway with $75,000 and not have any explanation for it other than, ‘I’ve been saving it,’” Cochran said. “It looked suspicious, but in the end, he had his day in court. That’s just the laws we work under.”