Conflict arises between Kansas law enforcement and ad hoc coalition over proposed civil asset forfeiture bills in House and Senate

A top aide to Attorney General Kris Kobach is calling on lawmakers, libertarians, and law enforcement officials to support a compromise bill that aims to bring significant reform to Kansas’ civil asset forfeiture system. The system has been the subject of controversy, but it also serves as a source of funding for law enforcement agencies in the state.

Kansas chief deputy attorney general, Daniel Burrows, has come forward to defend the rigorous efforts to revamp the state’s civil asset forfeiture law. In an impassioned plea, Burrows urged opposing factions to refrain from engaging in a futile battle and instead work together to bring about substantial reform. Rather than retreating to their respective strongholds and launching attacks, he implored them to unite and support meaningful change.

According to the speaker, Attorney General Kris Kobach has a strong commitment to protecting citizens’ rights and upholding the principles of limited, constitutional government. Over the past year, he has successfully halted numerous unwarranted forfeiture claims and worked diligently to find a compromise that satisfies civil libertarians, defense attorneys, law enforcement agencies, prosecutors, and other stakeholders.

According to Burrows, the attorney general is a strong advocate for reforming asset forfeiture. He acknowledges the significance of forfeiture as a law enforcement tool but also acknowledges the potential for abuse and the need for strict oversight.

Crafting a durable compromise that delivers consequential change in state law without rendering asset forfeiture practically impossible is the challenge at hand, according to the attorney. In pursuit of this goal, the attorney general has expressed support for House Bill 2606 over Senate Bill 458.

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Both the House and Senate have introduced similar asset forfeiture bills that are currently being reviewed by their respective judiciary committees. These bills aim to eliminate drug possession as a qualifying offense for asset forfeiture. Additionally, they propose that a judge must approve a probable cause affidavit before a case can proceed, and defendants who manage to recover more than half of their seized property would be able to seek reimbursement for their attorney’s fees and litigation costs.

Senate Bill 458 took a different path from House Bill 2026 as it introduced a provision that guarantees defendants the right to a jury trial. Additionally, the bill prohibits nearly 400 law enforcement agencies in Kansas from transferring their asset seizure cases to federal courts. This means that if these cases were handled by the federal government, the local law enforcement agency in Kansas would retain approximately 80% of the financial seizure, without having to bear the associated costs.

Opposition to Senate plan

According to Tony Mattivi, the director of the KBI and a former prosecutor with the U.S. Department of Justice, he expressed his preference for the House’s option. He believes that conducting jury trials would be impractical in this situation. Additionally, he appreciates the opportunity to transfer cases to the Federal Bureau of Investigation and U.S. Department of Justice. This relieves local law enforcement agencies from the financial burden of forfeiture actions that aim to seize the ill-gotten gains of criminals.

According to Mattivi, asset forfeiture serves as a valuable and efficient means of eliminating the financial motivation and resources for drug and human trafficking. Speaking before the Senate Judiciary Committee, Mattivi emphasized the importance of striking a balance between law enforcement’s requirement for this tool and our collective goal of safeguarding the due process rights of potential claimants. He commended Senate Bill 458 for its ability to achieve this equilibrium.

According to him, certain aspects of the Senate’s version have the potential to favor defendants and could potentially cause more harm than good.

Col. Erik Smith, the superintendent of the Kansas Highway Patrol, expressed his neutrality towards the House bill but disagreed with the Senate option. He concurred with the Kansas Bureau of Investigation (KBI) and the attorney general, highlighting the potential error in prohibiting federal prosecutors from overseeing forfeiture cases in Kansas.

He also voiced his opposition to a provision in both the House and Senate bills that would increase the burden of proof in asset forfeiture cases for the state. Currently, the state only needs to provide a low level of evidence, known as “preponderance,” to justify the forfeiture. However, the proposed change would require a higher standard of proof, known as “clear and convincing,” making it more challenging for the state to recover criminal profits.

According to Smith, the standard of clear and convincing evidence has typically been used for more significant matters like the loss of parental rights or involuntary mental commitments. However, in Kansas property disputes, the burden of proof has always been based on a preponderance of the evidence for all parties involved.

The Kansas Highway Patrol (KHP) and the attorney general had a disagreement regarding this matter. For several months, the attorney general, along with others, have been diligently seeking to garner support for the implementation of a higher evidentiary standard in forfeiture cases within Kansas.

KHP has generated a revenue of $6 million from civil asset forfeiture actions in Kansas since the 2019 fiscal year.

Other voices in the mix

During a Senate Judiciary Committee hearing on Tuesday, Sam MacRoberts, litigation director and general counsel for the Kansas Justice Institute, argued for the need to reform the Kansas statute on asset forfeiture. According to MacRoberts, the current law encourages profit-based policing, ignores the constitutional property rights and due process considerations of owners, enables government overreach, and denies the accused the right to a trial by jury.

According to MacRoberts, an institute affiliated with the Koch-linked Kansas Policy Institute, the current state law that allows law enforcement agencies to keep proceeds from forfeiture actions they initiated creates a “policing-for-profit system.” He argues that under the guise of the war on drugs, this law enables law enforcement agencies to seize property from law-abiding citizens, not just criminal defendants.

According to him, the right to a trial in front of a jury, as stated in Section 5 of the Kansas Constitution’s Bill of Rights, is considered inviolate, and the Legislature does not possess the power to abolish it.

In his statement, he emphasized the unequivocal nature of Section 5. According to him, this section establishes distinct and definite boundaries on the authority of the Legislature. The reason for selecting Section 5 was the recognition by the people that the right to a trial by jury needed safeguarding against any legislative attempts to undermine its essence. From his perspective, it is logical and fair to grant individuals the opportunity to be judged by a panel of their peers.

Retired Johnson County Sheriff Currie Myers, who has experience as a KBI special agent and a KHP trooper, expressed his belief that the seizure of private property by law enforcement agencies without due process is a violation of the U.S. Constitution. According to Myers, Kansas law should mandate that there be a charge and conviction of a criminal act before the formal taking of property.

According to him, implementing reforms like increasing the burden of proof in forfeiture proceedings would be advantageous. He emphasized the importance of requiring a conviction before the government can seize someone’s property, as it aligns with the principle of due process.

According to Greg Glod, an expert on criminal justice issues at Americans for Prosperity, the forfeiture process in Kansas primarily focuses on minor offenders and often results in the seizure of property from individuals who are still legally innocent. In fact, approximately 90% of the property seized in Kansas is forfeited by the accused, mainly due to the fact that the cost of recovering the property exceeds its actual value. This raises concerns about the fairness and effectiveness of the current system.

According to his statement, people in Kansas who have won the return of their seized property by government agencies had to wait an average of 400 days to receive it.

Glod stated that through numerous conversations with lawmakers and stakeholders, it became evident that despite varying policy perspectives, all parties shared a common goal. They all sought to empower law enforcement to effectively carry out their duties while also protecting innocent property owners from unnecessary bureaucratic hurdles.

The Kansas law enforcement and ad hoc coalition find themselves in conflict over the civil asset forfeiture bills in the House and Senate. This clash highlights the differing perspectives and priorities of these two groups.

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