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Rep. John Lesch, DFL-St. Paul, center, is shepherding a bill that would expedite the return of property seized by authorities. (Staff photo: Kevin Featherly)

Lesch bill overhauls forfeitures

The state law that allowed Ramsey County to seize Stephanie Walker’s vehicle and keep it for a year was declared unconstitutional, as applied, by the Minnesota Supreme Court on March 13.

With immaculate timing, her lawyer—who happens to chair House Judiciary—two days earlier shepherded House File 1971 through his committee. The bipartisan bill would have given his client a chance to get her property back a lot faster.

Rep. John Lesch, DFL-St. Paul, said that the court’s Olson v. 1999 Lexus ruling is evidence that his bill is badly needed. “I think the decision reaffirms that the Legislature is moving in the right direction,” he said shortly after the ruling was handed down. (See Innocent owner of seized vehicle wins on appeal.)

Lesch’s client was not party to Olson, but the cases were similar.

Olson involved a repeat drunken driver who got busted behind the wheel of her mom’s car. The vehicle was forfeited even though its owner was innocent of the offense. The Supreme Court last week declared that an unconstitutional application of Minnesota’s civil forfeiture law. (Chief Justice Lorie Gildea and Justice Anne McKeig dissented from that finding.)

Walker’s case was handled by Lesch in his role as a private-practice attorney. His client had loaned her car to her boyfriend in 2016 so he could deliver her $1,249 cash rent payment to her landlord.

Along the way, he picked up a chum who was carrying a small vial of cough syrup. They got pulled over by a state trooper. The friend fled, leaving the vial in the car. The trooper found it and thought it contained narcotics. Investigators then seized both the car and Walker’s money.

That put Walker and her toddler son out of their apartment, Lesch said, because she couldn’t pay rent. With no transportation, she lost her job. Eventually test results came back revealing that the cough syrup was legal.

“It was not until almost a year later that Ramsey County finally conceded they had no reason to seize this vehicle,” he told committee members on March 11. “Meanwhile, all the damage had been done.”

The current civil forfeiture process allows law enforcement to confiscate and sell off seized property. Law enforcement and prosecutors see it as a potent tool for stripping criminals of the fruits of their crimes while helping agencies finance anti-drug-trafficking efforts.

But to Lesch and his bill’s supporters, seizure too often equals rip-off. “This perpetrates, in my opinion, a crime against the people of the state of Minnesota who do not have the resources to fight back,” Lesch said.

As things stand, defendants must weather a two-tiered process: First, they must defend themselves against criminal charges, if any are filed. Second, they have to sue in civil court for the return of their property.

Even if they are innocent owners, they still must endure civil proceedings to get their stuff back. And since the average value of seized property in Minnesota is around $1,500, most decide that’s not worthwhile. Or if they don’t, the attorney asked to take their case often will.

About 8,000 civil forfeiture cases occur annually, Lesch said. Minnesotans walk away from their property in about 95 percent of those cases, he said.

“There is no good reason for a government agency to fund itself through its own enforcement powers,” Lesch said. “That is a recipe for disaster. It is a recipe for graft. It is a recipe for corruption.”

Lee McGrath is the Minneapolis managing attorney at the Institute for Justice, a libertarian public-interest law firm. He has been working with lawmakers to reform Minnesota’s forfeiture process for a decade and helped craft the Lesch bill.

He agreed with Lesch on the recent state Supreme Court ruling’s importance. “This is another signal from the Minnesota Supreme Court that the current law is problematic and the legislature should fix it,” he said.

Ben Feist, legislative director for ACLU Minnesota, thinks that’s right. He said the court’s ruling gives new urgency to Lesch’s efforts. “It might be that the Legislature really does need to act on forfeiture this session,” he said.

Prosecutors would feel change

On Wednesday, McGrath said that, from the cop-on-the-beat’s perspective, the bill changes little. With two new, limited exceptions cops would still be able seize property at crime scenes.

One change is that peace officers no longer could seize cash worth $300 or less. (Cash valued at $301 and above is fair game.) Nor could they seize a car worth less than $2,500.

Prosecutors would most directly feel the effects, McGrath said.

The bill ends civil forfeitures entirely and folds seizures into their related criminal cases, he said. It then requires a criminal conviction before ownership gets transferred to the government and assets get sold off.

There are exceptions to the conviction requirement. If during a police raid, for instance, a drug den is found to contain mounds of cash, firearms and dope, all that is evidence easily traced to criminal activity. It could all be seized, McGrath said. If there is a conviction later, it becomes government property.

If no ownership is claimed, or if a suspect dies, flees the jurisdiction or gets a grant of immunity—instances where criminal convictions are unlikely or impossible—the bill allows ownership to be transferred to the government.

In the courtroom, the bill would introduce a new right to pretrial replevin hearings, where owners can contest forfeitures. That would happen either at the time of pleading or within 14 days of a defendant’s first appearance. A single extension of up to 10 days would be permitted.

A defendant also could challenge a seizure’s proportionality by asserting the property’s value is out of proportion to the charged offense. That’s a nod toward last month’s Timms v. Indiana ruling, in which a unanimous U.S. Supreme Court ruled that disproportionately large state and local property seizures can be viewed as excessive fines under the U.S. Constitution.

The bill also contains innocent owner provisions, allowing non-defendants to timely lay claim to seized property. The primary effect of that provision, McGrath said, is to flip the burden from the owner to the government to prove a seizure was righteous.

Staunch opposition

As it did when a similar bill surfaced last year, law enforcement staunchly opposes the bill.

Robert Small, executive director of the Minnesota County Attorneys Association, appeared at the March 11 hearing on behalf of the Minnesota Law Enforcement Coalition—effectively Minnesota’s entire law enforcement community.

Small walked legislators through a litany of real-life seizures—everything from record quantities of dangerous drugs to night-vision goggles, submachine guns and a rocket-propelled grenade launcher—that Minnesota peace officers executed in 2018.

Small said the bill would threaten them all, crippling law enforcement and exposing Minnesotans to dangerous public safety risks.

“Unfortunately, this bill will dismantle civil asset forfeiture and in essence say to those sophisticated drug traffickers, ‘Come in here and do business in Minnesota,’” Small said.

Drew Evans, the state Bureau of Criminal Apprehension superintendent, said the new law could make it challenging to successfully seize assets. He cited the case of a sophisticated money-laundering scheme. “It could become difficult to show that the actual charged offense is the underlying offense [that is] connected to the money that was seized,” he said.

Rep. Brian Johnson, R-Cambridge, a former sheriff’s deputy, described other have unintended consequences. For instance, he said, in his career he sometimes substituted seized property for criminal charges against low-level defendants. In exchange, he said, they’d cooperate against major drug dealers.

“That’s the advantage of the civil asset forfeiture,” he said. “We can actually punish somebody for doing a wrong and not put it on their record.”

Rep. Tina Liebling, DFL-Rochester, reminded Johnson that civil forfeitures are not intended as punishment. Nor are police supposed to dispense justice. “Punishment is what the court does, not what the cops are supposed to do,” she said.

In an interview later, Johnson stood his ground. He said the new law will force peace officers to charge people who otherwise would not face prosecution, just to seize assets. “Which means more people having more charges on their record,” Johnson said.

Lesch disagreed, pointing out that property could be seized in most cases. It’s just that now, a criminal conviction would be needed to keep it.

“I think common sense is kind of taking a walk on this,” an exasperated Lesch said toward the end of the two-hour, late-night debate. “When you look at how the situation actually goes down, the academic or theoretical objections as to how this would work don’t play out in a real scenario.”

Eventually, his committee approved the bill—but not unanimously. It passed with a divided voice vote. Rep. Kelly Moller, DFL-Shoreview, an assistant Hennepin County prosecutor and Lesch’s vice chair, was among the no votes.

The bill’s companion is expected to be heard by Senate Judiciary sometime this week. Senate File 2155 is authored by Sen. Scott Newman, R-Hutchinson. It includes Senate Judiciary chair Warren Limmer, R-Maple Grove, and Sen. Ron Latz, DFL-St. Louis Park, among its co-authors.


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