A Commentary by Steve Klein
Wyoming Liberty Group

Imagine you're driving along on a Wyoming highway and get pulled over. The Highway Patrol asks to search your car. You don't like this, but you've got nothing to hide so you consent. The troopers find a large sum of cash that you're transporting and ask why you have so much money. You've done nothing wrong or illegal, and by this point are pretty fed up with the inquiry, so you tell the police it's none of their business. They then seize your money, letting you know you'll have the chance to reclaim it in court, and let you go.

It's already happened at least once in Wyoming, and it was perfectly legal. It's called civil forfeiture.

Since 1971, Wyoming law has permitted law enforcement to seize any property that they believe was used or is intended for use in the drug trade. This includes illegal property like narcotics and drug paraphernalia, but also allows for the seizure of cash, firearms, cars, and other personal property. Usually, police only seize legal property if they find drugs or paraphernalia, but that's not always the case, and the law allows police to seize property without even arresting the owner for a crime.

After police seize property, the attorney general pursues a forfeiture action to permanently deprive the owner of his rights to it. But this is done in a civil, not criminal, proceeding. That means the government does not have to prove guilt beyond a reasonable doubt, and the property owner is not entitled to an attorney if he cannot afford one. Even if the property owner could afford an attorney, the state may have seized the money he would use to pay for one, and it's chilling that one might have to pay thousands of dollars in legal fees to recover his legally owned property. Once the property is forfeited, it may be used by law enforcement or sold for proceeds to be used by law enforcement.

Nationwide, law enforcement agencies have fallen to the temptation to abuse civil forfeiture laws. More interested in seizing cash (which they can keep) than drugs (which they have to destroy), highway patrol in Tennessee stopped targeting narcotics carriers and deliberately sought out suspected buyers. In a small Texas town, police worked closely with a district attorney to shake down passing motorists, giving them the option of facing arrest on spurious charges or immediately forfeiting their property. Federal law also allows for civil forfeiture, and the IRS has threatened to shut down businesses over alleged violations of the tax code by seizing operating funds before even a cursory court hearing.

In a recent paper I authored for the Wyoming Liberty Group, in addition to analyzing Wyoming's forfeiture law I sought to get an idea of whether it has been abused. I came across a 2010 press release from the Wyoming Highway Patrol describing a similar situation to the scenario in the opening paragraph. The situation was more suspicious, and it's possible the driver was carrying drug money, but the police did not find any drugs or illegal property and did not charge the driver with a crime; they simply took the money and let the driver go. It does not appear the seizure was challenged, meaning the money became the property of the state.

It gets worse. Our state law requires very little reporting from the Attorney General's Office about the use of civil forfeiture, and the office has never even compiled these reports. The limited data available shows that the use of civil forfeiture in Wyoming has declined in recent years, but also indicate police agencies may be seizing far too much property without good cause. Whatever the circumstances, Wyoming law should be reformed to prevent future abuses.

The war on drugs is a touchy subject, but state law must not provide police with loopholes through constitutional protections of due process and property rights. Our civil forfeiture law can be reformed in numerous ways that will close these loopholes without hindering law enforcement from seizing narcotics or actual tools of the drug trade. Wyoming can become a leader in tough, but fair law enforcement. This is a great place to start.
Steve Klein, Wyoming Liberty Group, 307-632-7020

Editors please note: For staff bios and photos, please go to http://wyliberty.org/about/staff/

This commentary is free and provided to media outlets and opinion leaders by the Wyoming Liberty Group for reprint with attribution. The Wyoming Liberty Group is a 501(c)(3) nonprofit, non-partisan research organization. The Group's mission is to prepare citizens for informed, active and confident involvement in local and state government and to provide a venue for understanding public issues in light of constitutional principles and government accountability.