Lawmakers reform law to seize property

The Kansas Legislature has brought the gavel down on civil asset seizure powers of law enforcement. The reform was championed by Rep. Gail Finney before her death.

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April 12, 2024 - 1:42 PM

The late Wichita Rep. Gail Finney was an early champion for reforming the state's civil asset forfeiture system relied upon by Kansas law enforcement agencies to size $23.1 million over a four-year period from individuals suspected of engaging in criminal conduct but may not have ever been charged or convicted of a related offense. She died in 2022, but the Kansas Legislature unanimously passed last week a bill overhauling the system she faulted. Photo by Sherman Smith/Kansas Reflector

TOPEKA — Democratic Rep. Gail Finney ruffled state and local police officials and prosecutors seven years ago by publicly denouncing as unjust the state law allowing seizure of property based on mere suspicion of illegal activity and the daunting barrier to challenging those actions even if a defendant was never charged or convicted of a crime.

Finney, elected to represent a lower-income area of Wichita in the House, said the 1994 statute used by law enforcement to stuff their departmental coffers with millions of dollars annually in seized cash, vehicles and other property was a symbol of the erosion of fundamental rights and a reflection of a fractured justice system especially harmful to poor and minority Kansans.

“Kansas civil asset forfeiture laws threaten the constitutional rights, and violate the basic rights of property and due process, of our citizens,” Finney told lawmakers at the Capitol in 2017. “Kansans should be innocent until proven guilty.”

The Kansas County and District Attorneys Association, and more recently the Kansas Highway Patrol and Kansas Bureau of Investigation, rejected concerns of Finney and others insisting on substantive overhaul of the civil asset seizure law. A legislative audit had red-flagged problems in 2016. The Kansas Judicial Council offered recommendations. Years rolled by without results. In 2022, Finney died. Ideas she put forward about inequities in the decades-old law, which led to claims Kansas operated a system of “profit-based policing,” didn’t die with her.

Last week, the Kansas Legislature voted 120-0 in the House and 35-0 in the Senate to send Gov. Laura Kelly a bill transforming the asset seizure statute. It was hailed by Republicans and Democrats, and by conservative special-interest groups, as a triumph against a law that distorted the justice system.

“This is a day many of us have been waiting for for seven years,” said Rep. Susan Humphries, a Wichita Republican and attorney who chairs the House Judiciary Committee. “There have been many meetings, hearings, interim committees, judicial council committees — a lot of work by many folks, including our dear colleague Gail Finney.”

Leawood Sen. Kellie Warren, an attorney and the GOP chair of the Senate Judiciary Committee, said the bill headed to Kelly’s desk should be considered a significant step in the incremental process of addressing imbalances in processing civil asset seizure and forfeiture cases.

“We found a good position to help bring guardrails to this system, to protect Kansans’ liberties — who were having their assets seized without the proper ability to raise a defense and get their seized property back,” she said.

Kansas Highway Patrol Col. Erik Smith, who worked at the U.S. Drug Enforcement Administration for 20 years, warned legislators it would be folly to curtail seizure of illicit assets controlled by criminal enterprises given a majority of drug trafficking was associated with Mexican cartels and Chinese syndicates. Likewise, KBI director Tony Mattivi said special-interest groups inaccurately asserted Kansas civil asset forfeiture laws were deployed to coerce resources from innocent property owners. Mattivi said data didn’t support the conclusion law enforcement abused the system.

Sam MacRoberts, general counsel of Kansas Justice Institute, said the 30-year-old statute facilitated government overreach by financially incentivizing law enforcement agencies to strip property from innocent people.

“These reforms were long overdue and desperately needed,” MacRoberts said. “Asset forfeiture is abusive and fundamentally unjust. This is a great start.”

The Kansas Judicial Council says that from July 2019 to November 2023, Kansas law enforcement agencies seized $23.1 million in property. Of the total, $5.7 million was transferred to the federal government under revenue sharing agreements. One-fourth of the remaining $17.4 million was returned to the owners, but the Kansas Judicial Council reported that step took an average of 249 days to complete.

“We’re trilled to see this legislation passed to ensure that law enforcement does not act in an excessive way,” said Jon Lueth, deputy state director of Americans for Prosperity-Kansas. “We hope this law will strengthen transparency, afford due process and protect Fourth Amendment rights to Kansans.”

What does bill do?

Reform encapsulated in Senate Bill 458 would remove offenses related to possession or use of controlled substances from the list giving rise to seizure and forfeiture actions, whether or not there was a prosecution or conviction. Currently, all violations tied to controlled substances in the state’s criminal code granted law enforcement to option of claiming property and keeping the proceeds.

The legislation directed state courts to determine whether forfeitures sought by law enforcement was constitutionally excessive. The government’s attorney would have the burden of establishing with “clear and convincing evidence” the forfeiture was proportional to seriousness of the alleged offense associated with the forfeiture.

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