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Colorado governor signs controversial civil asset forfeiture legislation

Author: Peter Marcus - June 9, 2017 - Updated: June 10, 2017

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Gov. John Hickenlooper on Friday afternoon signed a controversial measure that he was pressured to veto regarding civil asset forfeiture.

It was a last-minute decision that had a gaggle of lobbyists waiting in anticipation after a frenzied effort that pitted criminal justice reform advocates versus the law enforcement community.

Groups like the ACLU of Colorado asked Hickenlooper to sign the legislation, arguing that “Coloradans want and deserve stronger protections when property is taken by police.”

But dozens of letters also came from law enforcement and local governments, who suggested that the legislation was premature and arbitrary, adding that it could significantly impact crime-fighting operations as budgets would be impacted. Those who fight against human trafficking also asked the governor to veto the bill.

The Colorado Springs Police Department said had the bill been in place during cases since 2012, the department would not have received federal equitable funding sharing in 85 percent of cases. Local officers spent over 42,000 hours investigating cases with federal partners.

Hickenlooper in a signing statement acknowledged that the bill is not perfect, but he felt it was important enough to sign. He asked lawmakers in next year’s legislative session to address additional steps, including:

• Enacting legislation to establish a program to provide funds to the current recipients of forfeiture proceeds, thereby keeping law enforcement agencies whole while also removing any perceived or actual pecuniary interest in forfeitures;

• Develop funding to support the program; and

• Pass a bill to remove the Department of Local Affairs as the enforcer of reporting requirements.

The bill aims at reporting seizure information to the state and pushing cases away from federal control.

Colorado Springs Police Chief Peter Carey was one of many voices opposing the bill. While he said he is open to the concept of reform, law enforcement officials believe more state-level research into the subject should be done before the legislation becomes law.

“Forfeiture is an effective tool used to shut down complex criminal enterprise and we urge its critics to look past the surface and recognize the impact that these changes will have on law enforcement’s ability to ensure safe communities across our state,” said Gary Barbour, board president of the Colorado Association of Chiefs of Police. “As the impacts of this legislation come to light, we would hope to find partners in the legislature to approach asset forfeiture reform in a manner that won’t have as significant an impact on public safety.”

(Letter from Colorado Association of Chiefs of Police following Gov. John Hickenlooper signing civil asset forfeiture legislation)

The Colorado Municipal League, which also opposed the bill, added, “Signing the bill severely impacts law enforcement’s ability to partner with the federal government and each other to combat criminal activity such as black market marijuana distribution and human trafficking.”

“Any discussion of civil asset forfeiture reform, specifically transparency, should have included the entities that engage in the practice,” said Sam Mamet, CML executive director. “We’re disappointed.”

The bill passed the legislature this year after intense negotiations and previous failed attempts. Supporters of the bill were under the impression that they had reached a fair compromise, but law enforcement says the state is moving too quickly.

A concern that is driving the process is that agencies – including prosecutors and police – have been outsourcing the legal process to the federal government, which does not have the same standards as Colorado.

Under the legislation, police departments would need to disclose biannually any forfeiture proceeds through either a state or federal forfeiture process.

What’s most concerning to law enforcement is that agencies would be prohibited from receiving proceeds from federal forfeiture cases if property and money seized is less than $50,000. The idea is that smaller cases should be handled by the state, not by federal prosecutors.

Critics, however, say the $50,000 figure is arbitrary and that it has not been studied.

Sen. Tim Neville, R-Littleton, a sponsor of the bill, said supporters arrived at the figure by comparing to other states that have implemented similar measures and trying to reach a number in the middle. California, for example, settled on a $40,000 threshold, according to testimony as the measure was making its way through the legislative process.

“I don’t think there’s magic to that number, personally,” Tom Raynes, executive director of the Colorado District Attorneys Council, testified at the time. “I think there are reasonable questions to ask about where you set that number.”

The prosecutors’ association, however, supported the compromise that came out of the Capitol.

Neville said he believes the legislation will still allow law enforcement to fight crime.

“When you take a look at the number of other states that have taken on similar types of reform, they’re still catching bad guys, and it’s going to continue,” Neville said.

When asked on Thursday – before he had made a decision on the measure – Hickenlooper himself questioned whether the bill is necessary.

“For a bill in terms of the number of people, you can’t find a lot of people that have been affected in some way who have forfeited assets. It doesn’t affect that many people and yet it is so powerfully symbolic that we’re trying to really sort through and make sure we come down on the right side,” Hickenlooper told reporters when asked by Colorado Politics.

But the criminal justice reform side of the debate says the practice, in which law enforcement can seize money and property in suspected criminal cases, even before a verdict is reached and without due process, is abusive. They believe the legislation adds a layer of transparency.

Supporters of the bill also say money seized should be applied to criminal justice reform, including fueling programs that combat the opioid epidemic.

“I’m thrilled the governor signed this critical legislation—this is a great step forward for basic fairness and Coloradans’ rights to due process,” said Rep. Leslie Herod, D-Denver, a sponsor of the bill. “Four legislators from across the political spectrum came together to bring this bill forward because we believe we must safeguard Coloradans’ rights to their own property if they aren’t guilty of any crime. People should be treated as innocent until proven guilty, and we owe it to all Coloradans to uphold their rights to property and due process.”

“Asset forfeiture should not be used as a loosely applied tool to boost law enforcement funding, but as a legitimate way of separating criminals from the proceeds and instrumentalities of their crimes,” added Sen. Daniel Kagan, D-Cherry Hills Village, another sponsor of the bill. “The overwhelming support for this legislation from the public, legislators, and now the Governor, just shows how imperative it was for stakeholders to come together to find a bipartisan solution.”

Peter Marcus

Peter Marcus

Peter Marcus is senior statehouse reporter for Colorado Politics. He covers the legislature and previously covered politics, the governor’s office, the legislature and Congress for The Durango Herald. He joined The Herald in 2014 from The Colorado Statesman, a Denver-based political weekly. The Washington Post twice named Marcus one of the nation’s top state-based political and legislative reporters.


3 comments

  • Albert

    June 10, 2017 at 11:08 am

    A simpler solution. Property has no conscience and would only be charged as an accessory. No criminal complaint against a person (or corporation), no forfeiture.

  • Mike

    June 10, 2017 at 5:35 pm

    So we can call the cops if someone steals our stuff now and not worry about them ripping us off for driving a nice car or keeping cash in our wallets. Another day in the Banana Republic of America.

  • Scott Weiser

    June 10, 2017 at 9:53 pm

    This law is a good start, but what really needs to happen is complete reform of the asset forfeiture system from the federal level down, beginning with making it unlawful to seize assets unless a felony criminal case is filed. Other requirements must include

    Requiring the assets to be held in trust and not distributed to anyone while the case is pending

    Requiring that the assets be immediately returned to the owner upon acquittal or dismissal of the case

    Making it a felony for any agency or public official to retain assets that should have been returned upon acquittal or dismissal.

    But the most important revision is this: No proceeds of any kind from civil asset forfeiture should be allowed to flow to law enforcement at any level, period.

    ALL such assets legitimately forfeited MUST be used for the benefit of the VICTIMS OF CRIMES, without exception. Not one dime of anything seized by any government at any level should be used to pay any administrative costs or anything else. Rather, every single dime should go directly to crime victims and it should be a felony to divert any such funds away from crime victims.

    The very idea of self-funded policing through civil asset forfeiture is repugnant to the Constitution and our entire system of justice and leads not just to the appearance of impropriety, it results in actual criminal fraud on the part of avaricious police administrators and politicians that cannot be permitted to continue.

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