-Caveat Lector-
"``Forfeiture laws have run amok,'' says the ex-head of the Bronx's
asset forfeiture unit. `The focus is no longer on combatting crime. ... It's
on [making money].''
Gov't Agencies Fight for Forfeitures
By JOHN HENDREN
.c The Associated Press
When Arkansas state troopers found $3 million in cash in trucker Roberto
Zamarripa's cargo, they declared the ``tainted'' money property of the
county.
By the time county prosecutors got to court, they found another claimant: the
federal government.
As Congress weighs whether to make it harder to seize citizens' property,
federal and local agencies fight in courtrooms throughout the country over
the spoils of asset forfeiture. The disputes reveal this incentive:
Cash-strapped law enforcement agencies seek not mere punishment, but money as
well, from citizens with property that police think might be linked to crime.
``Forfeiture laws have run amok,'' says Steven Kessler, a trial lawyer who
once headed the asset forfeiture unit of the Bronx district attorney's
office. ``The focus is no longer on combatting crime. ... It's on
fund-raising.''
In the Arkansas case, Zamarripa made no claim to the money. A local
prosecutor sued to recover it from a federal agency that ``adopted'' the
forfeiture from cooperative state police.
Critics say the Arkansas Highway Police wanted the $2.8 million they'd get
under a federal forfeiture. Under a state seizure, they'd recoup only
$250,000. The yearlong feud ended in March with Crittenden County keeping the
cash.
The disputes between governments occur because many states - like Arkansas,
Missouri and Kansas - give law enforcement agencies a smaller slice of
forfeited money than the 50 percent to 85 percent they'd get from Washington.
In many states they get only expenses - an officer's gas or overtime, for
example - for their efforts.
Officers who seized Zamarripa's cash had a good reason for going to the feds,
Arkansas Highway Police spokesman Randy Ort says.
``We turned it over to the federal government because it was an interstate
case,'' he says, noting that the driver was just passing through. ``We don't
do that to raise money.''
Arkansas is not the only place where government rivals face off in court.
In Missouri, state law requires that money seized in the state go for
education. But local police often turn over forfeited money to the federal
government in exchange for a larger slice of the cash, saying the money isn't
actually ``seized'' until they pass it on to federal agents.
To stop that, the Kansas City Board of Education filed a class-action lawsuit
earlier this year that asks Missouri law enforcement agencies to pay back all
the money they've received from federal forfeitures since 1986. Since 1993,
with the enactment of new forfeiture laws, police in Missouri took in more
than $32 million.
``What they do is engage in an end-run around the legislature's intentions,''
says Roger Pilon, legal affairs director of the Center for Constitutional
Studies at the libertarian Cato Institute in Washington. ``It signifies the
greed that is just below the surface in the entire forfeiture arena.''
In one case last year, a judge fumed that federal agencies were usurping
states' rights. Judge James B. Loken of the 8th U.S. Circuit Court of Appeals
questioned whether federal agencies were ``using their extensive forfeiture
powers to frustrate the fiscal policy of states such as Missouri.''
Once the federal government gets the money, getting it back can be
extraordinarily difficult, even for someone never accused of a crime.
Ask Fernando Marquez.
Pursuing Marquez's son on gambling charges in 1995, police found two safety
deposit keys in his house in New Rochelle, N.Y. The keys led police to
$490,920, which they seized. The elder Marquez went to court, arguing it was
his money and his bank box, not his son's.
When a New York judge ordered the money returned, the district attorney's
office said it had been turned over to the FBI - without the required court
order. After 3 1/2 years of court wrangling and mounting legal fees, Marquez
agreed to accept half of the sum. After legal fees, he got $177,053 back -
about one-third. He was never accused of wrongdoing.
``For an innocent person, it's like a stickup,'' says Marquez, 60, who
attributes a bout of alcoholism, a failed reconciliation with his wife and
health problems to his fight with the government. ``I really appreciate that
Congress is taking the steps to correct the situation.''
Last month, the House passed a bill requiring the federal government to prove
with ``clear and convincing'' evidence that property was eligible for
forfeiture if an owner files a legal challenge. To take Marquez' money,
police needed only show ``probable cause,'' the lowest level of proof under
the law, that the property was used in a crime.
The legislation, now pending in the Senate, would also:
Require officers to prove criminality, not simply allege it.
