Legislation to reform Arkansas’s civil asset forfeiture system passed out of the Senate Judiciary Committee yesterday.
Civil asset forfeiture occurs when property is permanently taken from a citizen who has never been convicted of a crime — essentially because law enforcement officers suspect that the property is a tool, or proceeds, of a crime.
Arkansas’s justice system isn’t required to obtain a criminal conviction before seizing property. After forfeiture, the property typically goes to law enforcement budgets. (More precisely, all proceeds from forfeited property worth less than $250,000 go to law enforcement budgets.)
According to the Institute for Justice, Arkansas police have seized over $80 million in cash and nearly 10,000 vehicles between 2000 and 2014. That’s hardly a complete list of seized property: more recently, research from the Arkansas Center for Research in Economics has described seizures of Arkansans’ property that include a DVD player, a stereo speaker, and an XBox 360.
One example from 2013 demonstrates that civil asset forfeiture can become abusive.
THE ESPINOZA CASE
Guillermo Espinoza was driving to Texas with his girlfriend in July of 2013 when he was pulled over by the Arkansas State Police. Despite finding no contraband, the police seized the $19,894 in cash.
Espinoza also provided paychecks and tax records showing the cash wasn’t drug money and was earned lawfully.
The Court of Appeals ultimately upheld the forfeiture, essentially because it determined that Espinoza’s attorney had missed a filing deadline. The lower court’s decision was especially strange, given that the prosecutor had previously attempted to end prosecution of the action — but the trial court refused to grant the prosecutor’s request to stop the prosecution. In fact, the judge in that case, Circuit Court Judge Chris Williams, was so eager for the prosecution to prevail that he made the prosecution’s case for it while sitting on the bench, concluding that the state — which was no longer trying to prove its case — had proven it anyway.
THE COMMITTEE DEBATE
The Espinoza case came up during discussion before the committee between Dan Greenberg, President of the Advance Arkansas Institute, and Bob McMahan, with the Office of the Prosecutor Coordinator.
Greenberg noted that Espinoza was being punished, according to the arresting officer (State Trooper Dennis Overton), simply for carrying cash. As Greenberg said:
Overton said: “I’ve worked this interstate for the last eight years … Half of my career I’ve spent out here. OK? Nobody – nobody – carries their money like that but one person. OK? People that deal with drugs, and deliver drugs. That’s it. Nobody else. Nobody.” In other words, Overton viewed carrying cash — as such — as evidence of illegal activity.”
McMahan responded by explaining that “there’s a whole lot more involved” with the Espinoza case:
The actual facts of this case are that there was 19,000, almost 20,000 dollars taken. And I’ll try to paraphrase some of this. It’s a little bit more involved than the particular description that Mr. Greenberg gave. The decision was made by the prosecuting attorney an attempt to dismiss the charges because after the investigation in the case revealed there was much more involved and that there was a possibility that information that was found in the investigation would lead to a federal case and additional state cases. So the decision to drop the charges was made to protect the integrity of a bigger investigation. That was the reason the prosecuting attorney made the decision to dismiss the case. A little bit more information that was developed after talking to Mr. Espinoza and a female passenger with him. They gave, I believe, 5 different stories including being on tape that was transcribed. I can read you a little bit of that if you’d like me to. The first statement they made was, again I’m quoting here, “Dammit, what are we going to tell them about the money? He found it. They are going to find it. They are going to find it. Please don’t find it. Please don’t find it.” So, I give you those facts to let you know there’s a whole lot more involved in this particular case. I don’t think that any time the prosecuting attorney or law enforcement felt that Espinoza or his companion were innocent at any time.
McMahan’s statement on the Espinoza case led to this remarkable exchange:
State Sen. Jeremy Hutchinson: How did the judge, if they did drop the case…
McMahan: They tried to dismiss the case but it ultimately was up to the court to determine and I believe the court said “no” and went ahead with the forfeiture. So that…
Hutchinson: Was there a conviction ever, then?
McMahan: No, no, I believe the money was returned at that point. And I don’t know about that, I just know that the judge would not allow the case to be dismissed. I do know that that’s accurate. The civil case.
Hutchinson: Mr. Greenberg, if you…
Greenberg: OK, I mean I think that maybe we disagree on a matter of fact. Are you suggesting the money was returned?
McMahan: No, sir, I don’t know if the money was returned.
Greenberg: Oh, I misheard. Yeah, the money was never returned. And I think I’ll just say: I think for Mr. Espinoza to say, “What are we going to do? They may find the money!” — that’s a very realistic reaction in terms of what actually happened, which is that his money was taken without a crime ever being demonstrated. That’s an entirely reasonable reaction.
THE PROSECUTOR’S PERSPECTIVE
Teresa Howell, a Hot Springs County Prosecuting Attorney (the office that handled the Espinoza case), said she agreed with McMahon’s statement. Howell said there “may have been a larger investigation” but said she didn’t know what, if any, federal and state cases arose from the Espinoza case.
What it appeared to be in this case is that there may have been a larger investigation and decided we didn’t want to go forward with our case because we were cautious about anything that we were doing that could have jeopardized the larger investigation.
Howell said Espinoza’s assets were seized because him and his female companion’s “stories didn’t add up” and because of the “way they were acting.”
There was much more involved than just having money. He was not charged criminally. When you say offenses and you say charges…those are words we use in criminal cases. He was not criminally charged in this case. You can charge someone criminally but under the asset forfeiture law, which is a civil law, you can file a civil lawsuit and that’s what this was for what we believed to be trafficking. In this particular case, we believed there was sufficient evidence by the preponderance of the evidence that there was drug trafficking involved and that those funds were part of that.
Here’s the bottom line: the prosecutor is entitled to believe whatever she wants. McMahan is entitled to explain that the prosecutor didn’t believe in Espinoza’s innocence. But if being nervous when a traffic cop pulls you over is enough to demonstrate criminality, we’re all in jeopardy. Law-abiding people, for instance, sometimes get a little jittery whenever they get pulled over by a law enforcement officer; some people get nervous about the prospect of a speeding ticket. Indeed, some law-abiding people who get detained by law enforcement officers get more than a little jittery; such nervousness is simply a fact, whether the detainee has any legitimate reason to get jittery or not. In short, prosecutors are entitled to believe what they want to believe, but we aren’t required to agree that their beliefs always make sense. Some might even say that their stories don’t really add up.
Currently, prosecutors in Arkansas can create a forfeiture of private property if they can pass the “preponderance of evidence” test. This basically means that if the prosecution proves it’s more likely than not that your property was the fruit of some criminal enterprise, this property can be permanently taken by law enforcement. That’s a lower standard than “beyond a reasonable doubt,” the burden of proof required to obtain a criminal conviction. “Beyond a reasonable doubt” is the higher level of proof that would be needed for law enforcement to seize private property in Arkansas if Collins-Smith’s bill becomes law.
It seems to me that Espinoza’s property was taken largely because he made statements that show he was worried about cops taking his property — right before they took his property. (Although it’s worth noting that it looks like just about any behavior will be found suspicious if you try hard enough — Judge Williams also noted suspiciously that Espinoza “was very stoic” throughout the stop.) Apparently, just about any behavior that law enforcement officers think is unusual is enough to meet the low burden of proof needed to seize property in Arkansas.
Here’s hoping the General Assembly changes this — as several states have done in the last few years — by requiring the state to actually prove private citizens are guilty of a crime before taking their property.