By: Tim Carpenter
Reform championed by Rep. Gail Finney before her death captured in bill
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.
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.
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.
The bill would require the seizing law enforcement agency to forward to a county or district attorney a written request for the forfeiture within 14 days. Current law sets that clock at 45 days.
If a local prosecutor rejected the request, the law enforcement agency would have 14 days to seek intervention by a state law enforcement counsel or the attorney general’s office to defend a forfeiture action. If state assistance was declined, the seizing agency must return property to the owner within 30 days. The exception would be seized dangerous drugs or hazardous materials that would be destroyed rather than returned.
The bill would prevent the seizing agency from requesting, inducing or coercing a person who asserted rights as an owner or interest holder of property to waive, in writing, such property rights until forfeiture proceedings began.
Significantly, the legislation limited the ability of local and state law enforcement agencies to pass seizure cases to federal authorities, a tactic that made it more difficult for owners of property to challenge the taking. Federal attorneys could take the case if it involved a joint task force investigation or seizure; if property seized by an agency was subsequently linked to a federal warrant obtained from a federal court; if property seized related to a “serious public safety” concern; or if the gross estimated value of the property seized was in excess of $25,000.
In the future, the bill would require an affidavit describing probable cause supporting forfeiture to be filed. The seizure proceedings could begin only after a state judge determined there was legal cause to believe the property could be subject to forfeiture. The notice of a pending forfeiture action sent to the owner would have to include the affidavit.
The measure would halt the discovery process in forfeiture actions during criminal proceedings alleging illegal conduct by the person who had property seized. In these cases, according to the bill, the existing “preponderance of the evidence” standard in terms of the burden of proof would be dropped. That’s the lowest-level of proof. Instead, future civil asset cases in Kansas would be based on “clear and convincing” evidence. That is the second-level standard, with the highest “beyond a reasonable doubt.”
If a claimant prevailed against law enforcement agencies in a civil asset case the extent that at least half the property’s aggregate value was returned, the bill would require the court to order the seizing agency to pay the defendant reasonable attorney fees, interest from the date of seizure in cases involving currency and for any proceeds from an sale of seized property.
Tribulation on jury trial
Sen. David Haley, a Kansas City, Kansas Democrat and a nephew of the late Pulitzer Prize winning author Alex Haley of “Roots,” said the outcome of negotiations produced a stronger bill than had been anticipated. If signed into law by the Democratic governor, he said, the legislation would undercut those in law enforcement who profited by treading on civil rights of Kansans. He said the era of snatching property from people “with no ability to go and get it back” should end.
Haley said he was disappointed the final package didn’t include a provision allowing defendants in seizure cases to request a jury trial. That was one provision sought by Finney to help level the judicial playing field, he said.
“It’s important there be a neutral tribunal, like a jury, that could be impaneled to make that decision,” Haley said. “I look forward to a better day.”
Warren, the senator who led negotiations on the civil asset legislation, said the bill ought to be viewed as an “incremental” step in a process that could eventually weave into state law the right to a jury trial in seizure actions.
“There was strong opposition from the law enforcement community to the jury trial provision,” Warren said.
She said an important piece of the bill required the KBI to produce a report on law enforcement agency forfeiture activity and to document policing agencies that declined to submit information for the state document. The bill mandated the KBI provide each law enforcement agency’s forfeiture fund financial report to the Kansas Senate president, the Kansas House speaker and the judiciary committees in both the House and Senate.
“What is going to bring more of this issue to light is more reporting, more transparency — rather than opaqueness,” Warren said. “How are these seizures happening? How much are they? Where are they? Who is it?