Forfeiture Follies in Iowa

When the government seizes property allegedly connected to a crime, the owner has to follow specific procedures to challenge the forfeiture. If he misses a deadline or fills out a form incorrectly, he has no chance of getting his property back. But a recent Iowa case shows that the picayune demands of forfeiture law also can work against the government.

In July 2007, a Pottawattamie County sheriff's deputy stopped Duane Lovelace as he was driving toward San Francisco on Interstate 80 and found marijuana, heroin, and $22,600 in cash. The county took the money and served Lovelace with a "notice of seizure" the same day, but it never served him with a proper "notice of pending forfeiture" indicating its intent to keep the money. Instead it published a misnamed "Notice of Seizure for Forfeiture Under Iowa Law" that did not explain the reason for the forfeiture, and it never served Lovelace personally. After the 90-day window for forfeiture closed, the county contacted the U.S. Attorney's Office, which agreed to pursue forfeiture under federal law, which gives local law enforcement agencies a 60 percent cut when they initiate a seizure.

In 2008 an Iowa district court, while noting that the county attorney's office "did a terrible job in attending to the necessary documents needed to successfully forfeit the funds," nevertheless ruled that nothing barred it from referring the case to federal prosecutors. The Iowa Court of Appeals, in a May 2009 decision (PDF) that the state Supreme Court this week declined to review, disagreed. Once the 90 days allowed by the law for serving a forfeiture notice had expired, the court ruled, the county was legally required to return the money. Furthermore, it said, Assistant Pottawattamie County Attorney Shelly Sedlak knew the forfeiture was legally defective but nevertheless tried to complete it and then, when Lovelace's attorney objected, attempted an end run around state law by taking the case to the feds. The court ordered the county to return Lovelace's money and pay his legal expenses (about $10,000), and it said Sedlak's actions were egregious enough that "sanctions are warranted."

Thanks to Mark Lambert, who notes that Pottawattamie County Attorney Matt Wilber attributes the missteps to Sedlak's inexperience. Sedlak was assigned to the case after the prosecutor who initially handled it was fired for stealing cocaine seized by the police.

Comments

[P Brooks]

Sedlak was assigned to the case after the prosecutor who initially handled it was fired for stealing cocaine seized by the police.

See? We're winning the drug war.

[Mango Punch]

"County Attorney Matt Wilber attributes the missteps to Sedlak's inexperience. Sedlak was assigned to the case after the prosecutor who initially handled it was fired for stealing cocaine seized by the police."

So she didn't know that if the forms were correct she could keep the $$ personally?

[J sub D]

There's a prosecutorial lesson here. If they had not fired the coke thief they'd have gotten to keep the money.

War on Drugs - Fail. The War on Liberty is working though.
Asset forfeiture laws - See above.

[John Tagliaferro]

I hate Iowa Nazis.

[Xeones]

"Pottawattamie" sure is fun to say.

[Michael Ejercito]

I would not have so much problem with asset forfeiture laws if the burden of proof was on the government.

[fresno dan]

"Sedlak was assigned to the case after the prosecutor who initially handled it was fired for stealing cocaine seized by the police."
Is the industrial legal complex losing its power?? Good grief, a prosecutor who committed a crime that would have sent anybody else to prison for a long time. I would have expected the lawyer-legal cabel to just have given him a letter of admonishment.

[TrickyVic]

"""The War on Liberty is working though."""

Of course, it has bipartisan support.

[The Angry Optimist]

This is the same Pottawatamie County that has two DAs in front of the SCOTUS claiming that their frame-up of two defendants should be entitled to qualified immunity.

Clearly this county needs a federal takeover.

[aelhues]

I, despite not being a complete libertarian, do have a problem with asset forfeiture laws. I think it is completely unjustified to assume that just because a person is in possession of a banned item, or a stolen item, or is caught in commission of a crime, that anything the state wants to take, can be taken.

A large portion of my objection is simply that if something isn't clearly in direct relation to the prosecutable offense, the state has no right to it. The rest has to do with the demonstrable difficulty in prying our possessions back out of the greedy hands of the state, whether proven innocent or guilty.

[kinnath]

I see this as a marketing opportunity for the state development agencies . . . "Leave the big cities with their corrupt justice systems; come to Iowa were we are merely incompetent."

[Fred]

I think it is completely unjustified to assume that just because a person is in possession of a banned item, or a stolen item, or is caught in commission of a crime, that anything the state wants to take, can be taken.

The car was used in commision of a crime (transporting drugs), and there is probable cause to think the money came from a crime (drug sales).

[Fred]

I would not have so much problem with asset forfeiture laws if the burden of proof was on the government.

That would seem like a good idea. We don't want to make it too difficult to punish criminals though.

[R C Dean]

The car was used in commision of a crime (transporting drugs), and there is probable cause to think the money came from a crime (drug sales).

I don't think anything should be forfeited until the owner is actually convicted of a crime.

That would seem like a good idea. We don't want to make it too difficult to punish criminals though.

I think "proof beyond a reasonable doubt" is about right for any criminal punishment, including forfeiture. You?

[EscapedWestOfTheBigMuddy]

Michael Ejercito | September 17, 2009, 1:01pm | #
I would not have so much problem with asset forfeiture laws if the burden of proof was on the government.

I would.

Stuff does not commit crimes.

Only people can commit crimes, and when they do, the government can try to prove it, and if successful punish them for the crime they committed but not for the stuff they had when they did it.

This is basic, Justice 101, level reasoning about equality under the law.

Proceeds of theft can and should be returned to the owners (once it is shown that a theft occurred and that the accused did it). And victims of assault or property crimes may have tort they can use to pursue the crooks other assets.

And there it ends. The government should never profit from arresting or convicting someone. It creates an powerful incentive the runs counter to any reasonable notion of justice.

And I know that people are thinking about the proceeds of drug running or extortion or or or...
All I can say is, if you can show that a crime occurred, the accused did it, and the money came from those same unlawful acts, freeze it awaiting the outcome of civil litigation from the victims. The government still doesn't have a claim on it.

[Fred]

I think "proof beyond a reasonable doubt" is about right for any criminal punishment, including forfeiture. You?

Agreed.

All I can say is, if you can show that a crime occurred, the accused did it, and the money came from those same unlawful acts, freeze it awaiting the outcome of civil litigation from the victims.

In the case of drug crimes, there is no specific victim, but society is a victim. In this case the government serves as proxy for the victim (society) because government money comes from taxes and is "our" money.

[EscapedWestOfTheBigMuddy]

In the case of drug crimes, there is no specific victim, but society is a victim.

FTFY.

[R C Dean]

In the case of drug crimes, there is no specific victim, but society is a victim.

How society can be a victim of (a) a voluntary transaction (the drug deal), followed by (b) an act that involves no one but the actor (the drug use), is a mystery to me.

I suspect that most of what you see as societal harm from drug use is actually societal harm from (a) the war on drugs and (b) the black market created by the war on drugs.

[Fred]

I suspect that most of what you see as societal harm from drug use is actually societal harm from (a) the war on drugs and (b) the black market created by the war on drugs.

What about increased health care costs, decreased productivity all caused by drugs?

[Harry Anslinger]

Actually, the problem with drugs is that
a) darkies begin to think they are as good as white men.
b) mexicans lounge around slothfully
c) white women become seduced by black men playing satanic jazz music

[EscapedWestOfTheBigMuddy]

What about increased health care costs, decreased productivity all caused by drugs?

Fred, giving "society" a claim on my behavior because it might not be optimal for productivity is tantamount to slavery and/or communism. Think about it.

As for the the costs of care, that is only a problem if you insist on trying to make everyone pay for everyone else's care. Which is to say, it is a social, but not a political problem in any free country.

But come on, these aren't the strong arguments in favor of the drug war. Not that the strong ones stand up to close scrutiny, but don't throw us the easy ones.

[Michael Ejercito]

I, despite not being a complete libertarian, do have a problem with asset forfeiture laws. I think it is completely unjustified to assume that just because a person is in possession of a banned item, or a stolen item, or is caught in commission of a crime, that anything the state wants to take, can be taken.

Would you still have a problem with that if the state were required to prove with a preponderance of evidence that the property in question was involved in the crime?

That would seem like a good idea. We don't want to make it too difficult to punish criminals though.

Requiring the government to prove with a preponderance of evidence that the property was used in a crime would suffice.