It’s 10:00 p.m….Do You Know Where Your Assets Are?

ILLINOIS CHANGES LAW FOR LAW ENFORCEMENT ASSET FORFEITURE

Illinois Law just changed in a way that will benefit innocent consumers.  A little-known facet of local law enforcement procedure to many Americans, “Asset Forfeiture” has gained a bit of notoriety over the past few years as horror stories have gained more media attention.  Simply put, local rules in counties across the country allow police to seize items that they believe to be the product of illegal activity (or intended to further illegal activity) upon an inspection. This would mean that a cop that pulls over a car travelling through a county in Central Illinois due to speeding could believe he has probable cause to inspect the vehicle for drugs or money.  Upon inspection, if the officer discovers that the person is carrying $5,000 in case.  Based upon this discovery, the officer declares, “I have probable cause that this is the proceeds from illegal drug sales!”

What happens next?

Most people probably think that the police cannot simply keep the money without any proof or evidence that it is actually the proceeds of illegal drug sales.  Most people would be wrong.  At least under what used to be the law in Illinois and is still the law in the vast majority of other jurisdictions.  Keep in mind, this would be the case regardless of whether the person was arrested.  In other words, the Civil Forfeiture law did not require there to be any related criminal prosecution of the individual.

Surprising Law

Under Federal Law, if cash, a car, a palette of DVDs, or any other ‘item’ seized by Police based upon the belief that the items are tied to illegal activity, the burden is then on the person claiming the goods to prove that the goods are not tied to illegal activity (18 U.S. Code § 983).  That’s right, by a “preponderance of the evidence,” which is a civil burden of proof (meaning more probable than not), you need to prove you didn’t steal the car or rob someone to get your money.  Now, for most people, it would seem obvious that they should be able to prove something like that.

But how?  Sales records?  Bank statements?  Ready to hire a lawyer to file the Asset Claim and present the evidence?  How much will that cost?  And what if it happens while driving across country to a new home where you’re carrying cash because you’re moving?  You’d have to spend the time and money to return to the jurisdiction of the seizure.

Identifying the Injustice

In the past few years, more journalists and media personalities have been identifying what happens in these cases.  The brilliant comedian and social injustice lampooner, John Oliver (Twitter: @iamjohnoliver) who hosts the program Last Week Tonight, did a remarkable job explaining the law and profiling some of its unjust applications October 5, 2014.  The episode was also reviewed by Ryan Reed (Twitter: @rysreed) of the Rolling Stone Magazine.

Oliver’s look at the problem pointed out just how absurd the situations can be: as if a pile of cash is going to defend its own rights.  But it also highlighted that this system negatively impacts real lives.  And it creates incentives for law enforcement agencies to collect as much money as possible, because, as the segment investigates: they get to keep and spend the money as they see fit.

In Illinois, the issue has arisen in a variety of contexts.  Recently, this includes a Minnesota driver that was stopped along I-90 in Kane County by an Illinois State Trooper.  As Harry Hitzman explains in yesterday’s Daily Herald (Twitter: @DH_HHitzeman), the vehicle was stopped going 61 mph in an alleged 55 mph zone.  The Trooper discovered $340,000 in cash.  His lawyer claims that the zone was actually a 70-mph zone and that there was no probable cause for the traffic stop.  Further, they claim that the money was intended for use at an auto auction and in connection with paying a concert performer.  The case is due in front of a Kane County judge in October.  

Illinois’ Rogue Prosecutor

An even more notorious reason this issue has gained attention in Illinois is the excessive use of Illinois’ Asset Seizure laws in LaSalle County, Illinois.  There, the former elected prosecutor, Brian Towne, had taken the seizure of property to extremes.  He created his own task force, as examined in Court House News, July 3, 2017, employed directly by the State’s Attorney’s office, that would pull over vehicles crossing the State on I-80 (which runs from California on the West Coast through to Tea Neck, New Jersey on the East Coast).

As noted in Court House News: Cara Ringland was stopped by a SAFE officer because one of her U-Haul’s mud flaps was more than 12 inches off the ground and the officer found it unusual for a woman to be driving a U-Haul alone. A drug dog found 100 pounds of marijuana packed in the back of the van.

The Marijuana trafficking conviction was thrown out because the Task Force was an abuse of prosecutorial power. This makes the community less safe because the abusive practices invalidate what might otherwise have been legitimate convictions for crime.  Towne came under fire for spending over $100,000 of forfeiture money on travel to law enforcement conferences.  The entire “SAFE” unit was ruled to be an abuse of power by the Illinois Appellate Court in 2015 and affirmed by the Illinois Supreme Court in June, 2017.  The September 7, 2017 article by John Keilman further notes that Towne was indicted for official misconduct (including the misuse of forfeiture money).

Change For Illinois Law

In the wake of all the attention that Civil Asset Forfeiture has gotten in Illinois, groups like the American Civil Liberties Union have advocated for changes.  HB 303 had a host of sponsors in the House and Senate, including State Sen. Don Harmon (D-Oak Park).  The new law is now substantively changed.  It is now Law Enforcement’s burden to prove that the seized assets are related to illegal activity.  The bill was signed by Illinois Governor Bruce Rauner September 19, 2017 and will go into effect July 1, 2018.