Burden of proof

Editor's note: This is the final story in a three-part series about civil forfeiture and drug asset seizure.

COEUR d'ALENE - Civil asset forfeiture isn't popular in some circles, outside of law enforcement.

Larry Salzman, an attorney with the Institute for Justice - a libertarian nonprofit law firm with six offices throughout the nation - is among those who complain that it's too difficult for innocent people to recover their property, once it's been seized by law enforcement officers.

"Maybe their property was used by a third party or maybe it was suspected of being used but they're not actually guilty of anything. They're just suspected of a crime," Salzman said. "Getting it back is so hard. For you to get it back, you bear the burden of proving that you are innocent of any crime involving that property."

Kootenai County Prosecutor Barry McHugh argues that it's in fact the prosecution that bears the burden of proof.

"In some cases, the claimants don't present any evidence but ultimately the court decides in their favor," McHugh said.

To support his argument, McHugh referenced a recent appellate court decision that could return property seized under the state's civil forfeiture law to its owner. The ruling states "the plaintiff must prove by preponderance of the evidence that the vehicle was used or intended to use ... " indicating, McHugh said, that his office bears the burden of proof.

According to Salzman, forfeiture can also create a "course of least resistance" for law enforcement agencies because "you just have to suspect the property of being involved in a crime" in order to seize it.

"I think it breeds a culture of seizure where it's easy for the law enforcement agencies to do it compared to the alternative which is charging people for a crime and making a case," Salzman said.

However, those in charge of local law enforcement agencies say they disagree with Salzman's assessment.

Kootenai County Sheriff Ben Wolfinger said the motivation behind any civil forfeitures his office makes is not the proceeds, but taking drugs off the street.

"We haven't really gone after the cash, we are going after the dope," Wolfinger said. "We're not making money taking dope off the street, but we are taking dope off the street."

Wolfinger added that individual officers do not get bonuses and do not have any additional incentive when it comes to drug cases that include forfeitures.

"We've been able to send some officers to training we wouldn't have been able to and that's good. We've been able to buy some equipment we wouldn't normally have been able to buy and that's good," Wolfinger said. "But we're taking a lot of dope dealers off of the street."

Post Falls Police Chief Scot Haug said he sees civil forfeiture as a mechanism that makes criminals pay for their crimes while taking the burden of funding law enforcement activities off taxpayers.

"What a better way to be able to help train some officers and help get them some equipment, to help start a K9 program, then to have the drug dealers pay for it," Haug said. "If we didn't have that drug seizure money, you and I would be paying for that. It's about time that the criminal chips in and pays for some of the equipment and training to fight this problem that we have."

Slippery slope

Salzman fought a civil forfeiture case that he said sums up the slippery slope of forfeiture law in the United States.

Last year in Tewksbury, Mass. - in an area Salzman describes as very rough, with a high poverty level and an atmosphere impregnated with drug issues - the owner of the Motel Caswell, Russ Caswell, was told his motel was targeted for civil forfeiture.

"And the premise of this is that because over a 20-year period, about 30 people had been arrested in the rooms for drugs, he should lose his entire property, which was free and clear and worth about a million and a half dollars," Salzman said. "What was shocking to me about the case is that the police quickly admitted, and the prosecuting attorneys at the department of justice quickly admitted, that they did not believe that Russ or any of his employees had ever rented a room to someone knowing that they were bringing drugs onto the property."

In fact, Salzman said that Caswell had cooperated with police in the past by providing them rooms for drug stings and informing the police whenever he did become aware that drugs were at the motel. Other businesses in the area like Walmart, according to Salzman, had substantially more drug arrests on their property.

"This was really a problematic neighborhood and these property owners were doing everything they could to combat a common crime element," Salzman said. "Yet, they singled him out and targeted him for civil forfeiture."

Future changes

With Salzman's legal guidance, the case against Caswell was ultimately dropped. However, he said those with the Institute for Justice believe that in order to prevent more cases like Caswell's from occurring, more judicial oversight is needed.

He added that since civil forfeiture cases often arise alongside criminal drug prosecution, it is "very easy to look at those cases and say, 'That's just a bad person.'

"But what we really need is judges to engage with the requirements of due process, with the requirements of the constitution and hold these agencies accountable for their decisions in order to stop them from engaging in civil forfeiture when they're pursuing truly innocent people," Salzman said.