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DOJ civil forfeiture changes unlikely to affect ND

Rep. Rick Becker, R-Bismarck

GRAND FORKS — New Department of Justice polices rolling back restrictions on police seizures of cash and property are unlikely to affect North Dakota, according to experts who routinely cite the state as having one of the worst laws in the nation when it comes to law enforcement's ability to seize individuals' belongings.

Civil asset forfeiture is a controversial practice that allows law enforcement to permanently seize cash and other goods, such as vehicles, suspected of being involved in a crime. In many states, a criminal conviction is not required to keep the goods, which draws criticism from a wide coalition of legal scholars.

This month, U.S. Attorney General Jeff Sessions announced he would reverse moves by his predecessor, Eric Holder, to end the practice of local law enforcement asking federal agencies to "adopt" their cases, which allowed federal agencies to seize assets via a practice known as equitable sharing.

"North Dakota has the worst forfeiture laws in the nation," said Lee McGrath, managing attorney for the Institute for Justice's Minnesota office.

He said the new DOJ policy will likely not affect the state because state law does not provide incentives for local agencies to ask federal agencies to come in and take away their potential revenues.

North Dakota only requires law enforcement to have probable cause to seize cash or property they believe may have been involved in a crime. The burden of proof is on the citizen to establish their property was not used in relation to a crime, as opposed to just being returned to the owner if they are found not guilty.

Law enforcement agencies in the state are not required to track their seizures, and can keep the first $200,000 worth of seizures each biennium before being required to roll the money into the state's general fund.

McGrath said such laws create an incentive for law enforcement to seize as much money and property as possible. While he does not think it is necessarily being abused in North Dakota, the opportunity is there.

To one first-year lawmaker, the law obviously needed to change.

"The second I found out we had such a policy, I couldn't believe it," said Rep. Rick Becker, R-Bismarck.

Becker sponsored a bill this year that would have required a criminal conviction before property could be forfeited; required forfeited money to be put into the state general fund; made law enforcement agencies track their seizures; and prohibited state agencies from participating in the federal equitable sharing policies expanded by Session.

The bill passed the House 50-42, but received no votes in the Senate after a strong lobbying approach from law enforcement, including an appearance from North Dakota Attorney General Wayne Stenehjem denouncing the bill.

"I've lobbied this issue in 20 states, and this is the first time I've seen an attorney general argue it in person," McGrath said.

He said the law enforcement lobby fought hard against the bill, and the Senate obeyed. Becker agrees.

"Law enforcement says jump, and the Senate says how high," he said.

Becker said his fellow lawmakers need to recognize that voting against the law enforcement lobby does not mean they are belittling the profession.

"Having a disagreement doesn't mean we're disrespecting them," he said.

McGrath is OK with police seizing the assets, but his group believes criminal conviction must be a prerequisite for permanent forfeiture of any property.

"No one on either side of this argument believes crime should pay, " McGrath said.

He said civil forfeiture is based on admiralty law in which guilt is not required, and applying those standards in a land-locked state is wrong.

"Nobody in their right minds should vote against this bill," Becker said.

The Grand Forks Police Department tracks its forfeitures, according to Deputy Chief Jim Remer, but it's never been a big boon to their budget.

"We don't come close to approaching it," Remer said of the allowed $200,000 agencies can retain each biennium.

So far in 2017, Grand Forks police have $1,100 in forfeited money, he said. Last year was an unusually high year for the department, with $36,000 in forfeitures, mainly coming from two cases worked by the Grand Forks Narcotics Task Force. The department receives a cut of the task force's forfeitures, the lionshare of which goes to the Bureau of Criminal Investigation.

In 2015, the department took in $2,000 total in forfeiture, Remer said.

"It really does vary for us," he said.

Remer said the department tries to spend the dollars on extra things to benefit the department and "to increase morale" such as displays within the department's hallways. Forfeiture money has also been used in the past to outfit canine units and make upgrades to squad cars.

Minnesota changes

Minnesota passed changes to its forfeiture laws in 2014 and now requires a criminal conviction to forfeit and for agencies to track their seizures, but McGrath said the law has not gone far enough.

While people must be convicted to forfeit their assets, one must file a separate civil case to get the cash or item back, he said.

The accused must start the civil process within 60 days of the property being seized. With the extra stress and cost, he said few people end up fighting out the process, even if they are not convicted. The average value of a seizure in Minnesota is $1,600.

East Grand Forks collected $16,173 in revenue from forfeitures in 2016, according to records from the state auditor's office. The money came mostly from selling vehicles seized in DUI cases, a common practice in Minnesota.

The Polk County Sheriff's Office brought in $3,702 in forfeiture money in 2016. The Pine to Prairie Drug Task Force, which works across northwest Minnesota, had $38,539 worth of forfeiture revenue, state records show.

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