Originally posted on Reason.com by C.J. Ciaramella

It was the first time in Mississippi defense attorney Richard Rehfeldt’s long career that he can remember where police seized a client’s furniture.

In 2012, Rehfeldt says the Hind County Sheriff’s Office raided his client’s apartment on suspicion her boyfriend was a drug dealer. Anything purchased with drug proceeds is fair game to be seized by police under civil asset forfeiture laws, and they determined the boyfriend had furnished the apartment, so off went her TV, her table and chairs, her couch, her lamps, and even the pictures on the wall.

“Her case is the first in my 38 years of practicing law where they took the furniture,” Rehfeldt says.

Under a settlement agreement, all of it was eventually returned. Well, all of it except the couch.

“It is, therefore, ordered and adjudged that one Visio television, one dining room table and chairs, pictures and lamps are to be returned to the plaintiff upon execution of this Order by this Court,” the Feb. 10, 2015 order in the Hinds County Court reads. “Additionally, one white couch is hereby forfeited to the Hinds County Sheriff’s Office.”

The order in her case* is one of hundreds contained in a tranche of court records and data collected by a Mississippi state legislature task force studying asset forfeiture in the Magnolia State. The records, which include forfeiture orders from almost all of the county and circuit courts in the state in 2015, offer a rare glimpse into Mississippi’s asset forfeiture machine.

The records show many seizures of cash well over $100,000, the sort of big hauls that police say make asset forfeiture a vital tool to disrupt drug trafficking. But there are also many seizures of petty cash and cars in connection to little more than misdemeanor drug possession charges. Many of those cases ended in settlements, like Rehfeldt’s client, where police only partially returned money and property—arrangements that state officials say can give the appearance of a shakedown.

For example, in April of 2015 the Desoto County Sheriff’s Department agreed to return a 2006 Chevy Trailblazer owned by the mother of the petitioner, Jesse Smith, in exchange for $1,650. As Reason has reported in several cases, family members, especially parents, frequently have their cars seized for the alleged crimes of their children, even though the parents may not be charged or in any way connected to illegal activity.

According to the Mississippi legislature’s Joint Committee on Performance Evaluation and Expenditure Review (PEER), which analyzes government operations, such settlements can be problematic. In a July 15 letter obtained by Reason, PEER executive director James Barber wrote to state lawmaker Mark Baker that “upon a cursory analysis of these orders, PEER staff notes that Agreed Orders tend to have the most potential for indicating possible abuse.”

“This is because most Agreed Orders are entered into upon a settlement agreement in which the arresting authority receives some or all of the forfeited property as a condition subsequent to some sort of an agreement made between the arresting party and the defendant,” Baker continued. “As the arresting party often seizes a large amount of property or cash and many of these Agreed Orders stipulate that some of most of the said property or cash will be returned while some will be forfeited, a reasonable person might assume that the arresting party is using its authority to gain assets from an arrest by settling with the defendant.”

Put more simply, a reasonable person might assume he or she is being extorted.

According to court records, a Mississippi man named Robert Evans agreed to plead guilty in 2015 to a reduced charge of misdemeanor drug possession. In return, the state seized his truck and $170 in cash.

In total, the Mississippi Bureau of Narcotics, working with local police departments, seized nearly $4 million in cash in 2015. Out of 154 seizures in 2015, the average cash value amounted to $66,733, and the median was $12,914. They seized cash amounts as low as $75 and as a high as $460,000. They seized trucks, cars, ATVs, riding lawnmowers, utility trailers, and 18-wheelers; an arsenal of assorted handguns, shotguns, and rifles; cell phones, cameras, laptops, tablets, turntables, and flatscreen TVs; boat motors, weed eaters, and power drills; and one comic book collection.

However, those numbers do not include police departments working independently from the Bureau of Narcotics or working with federal drug task forces, and thus do not give a complete record of seizures for that year. The state currently does not track or publish data on asset forfeiture, although the task force will soon be releasing its recommendations for a transparency bill that would introduce such reporting requirements.

“We’re completely in the dark on how pervasive the practice really is,” says Blake Feldman, an advocacy coordinator at the Mississippi ACLU. “Pretty much the default mindset is nobody should be overseeing any law enforcement. A big concern will be if the required tracking and reporting is going to be enforced, or if it will be a shallow gesture.”

In recent years, there has been bipartisan momentum in states across the U.S. to roll back civil asset forfeiture laws, which allow police to seize property without convicting or even charging the owner with a crime. Mississippi is no different. According to an April poll of Mississippi voters conducted by Mason-Dixon Polling and Research, 88 percent of voters oppose civil forfeiture, including 89 percent of Republican voters.

Reason reached current Hinds County Attorney Claire Baker to ask about the couch seizure, as well as the debate in the state over asset forfeiture.

“There’s been a move to crack down on forfeitures, and I get that,” Baker says. “Mississippi law is wide open as far as forfeiture goes.”

Baker was not the prosecutor when the Hinds County Sheriff seized the furniture of Rehfeldt’s client, and she says she has no idea where the forfeited couch ended up. She hasn’t seen many cases of seized furniture, either.

“Normally we try to be very careful about the seizures, because I don’t want to have to go and give something back,” she continues. “If there’s any doubt, leave it. I’ve had that conversation with several law enforcement officers.”

Scott Gilbert, a former Assistant U.S. Attorney and asset forfeiture expert, says there’s some modicum of due process protections for property owners in Mississippi, but a lack of law enforcement training and case law has left much room for improvement. Gilbert is now in private practice in Mississippi, defending people from forfeitures, although he says his job is much the same as it was before: making sure the government meets its burden of proof to deprive someone of their property.

“These guys are pulling a lot of drugs off the interstate,” Gilbert says of Mississippi police. “A lot. They’re doing their job. The problem is, the system in Mississippi has been in place for so long, and it’s set up to where it’s not conducive to allowing people to come into court and make the state meet its burden of proof, like if they were charged with a crime.”

And without accurate tracking and reporting, there’s no way to know whether the law is being applied fairly or unfairly.

“Because there’s no reporting requirement in the law, we don’t know why assets are being forfeited, we don’t know the value of the property, we don’t even know how often property owners are being charged with a crime,” said Forest Thigpen, president of the Mississippi Center for Public Policy, a conservative policy think-tank, in a statement earlier this year. “In states that require reporting, lawmakers are finding the value of the seized property is less than the cost to hire an attorney to get the property back.”

Rehfeldt says the cost of challenging a forfeiture is just not worth it for the majority of potential clients who come through his door.

“I advise every one of my clients that unless you want to spend money to get money back, it just doesn’t make sense,” the Mississippi defense attorney says. “Some people fight it on principle, but about 90 percent just let the money go, even when they can prove the money has nothing to do with illegal activity. It costs too much to go to court to fight. Even if you do it yourself, it’s about $250 in filing fees. Normally a lawyer wants around $1,500 to file.”

Under asset forfeiture law, the state must be able to connect property to an alleged crime. In Mississippi, the only crimes that police can seize property for are money laundering and drug law violations. However, Gilbert says Mississippi police and prosecutors money often fail to tie property to a provable drug transaction. In one case Gilbert encountered, police seized a man’s garden hoses and horse saddle.

While rare, the court records obtained by Reason show other instances of strange and petty seizures by police. In July of 2015, the Copiah County Sheriff’s Department agreed to return a long list of items it had seized from Travis McCoy, including an outboard boat motor, a nail gun, several car batteries, and his coin, stamp, and comic book collections.

One of chief criticisms of civil asset forfeiture by civil liberties groups is that the process is notoriously slow and hard to challenge, forcing property owners to fight in court for months to try and get their property back. Because these are civil cases, they have no right to a public defender. In the case of the white couch forfeited by the Hinds County Sheriff, Rehfeldt’s client had her furniture returned three years after she first filed a petition challenging the seizure.

Records show that many Mississippi counties split asset forfeiture proceeds 80-20 between police departments and prosecutors. Such arrangements occur in other states, but civil liberties groups say they create perverse profit incentives for prosecutors and police. Gilbert refers to this system as “eat what you kill,” and says it is, at best, a public image problem for police.

Gilbert notes the U.S. no longer allows judges to be paid based on the number of sentences they hand down, and there are anti-kickback statutes prohibiting doctors from referring patients based on financial considerations. Yet, police can fund their departments based on how they exercise their power.

Gilbert says he doesn’t believe there is widespread abuse of asset forfeiture among Mississippi police, but even in the best case scenario, the system erodes public confidence.

The 2015 records do not include seizures from federal asset forfeiture cases. State and local law enforcement often work with joint federal drug task forces, which entitles them to a share of the forfeiture proceeds while sidestepping state requirements and budgets entirely. Mississippi law enforcement received more than $47 million in from 2000 to 2013 from federal asset forfeitures, according to the Institute for Justice, a libertarian-leaning public interest law firm that has challenged forfeiture laws in several states.

The Institute for Justice gives Mississippi a C- grade for its asset forfeiture laws, noting the low burden of proof required for a seizure and the high amount of revenue that goes straight back into law enforcement budgets. Unlike many states’ asset forfeiture systems, which forces property owners to prove their innocence to get their things back, the burden of proof falls on the government to disprove a property owner’s claim.

At a hearing on asset forfeiture earlier this year in the Mississippi statehouse in July, Rankin and Madison County District Attorney Michael Guest said Mississippi police patrol major drug trafficking corridors, and asset forfeiture was a critical tool in their interdiction efforts.

“They can call it what they want, put terms on it like ‘policing for profit,’” Guest said. “That’s nothing more than accusing these hard-working men of stealing. Stealing people’s hard-earned money. I wish instead of talking about this, we were here to talk about how we’re going to protect these men and women putting their lives on the line.”

Not everyone agrees with Guest and Gilbert on the integrity of the officers seizing guns, money, and cars. Rick Ward, a Mississippi gun rights activists and former investigator at the state attorney general’s public integrity office, is currently suing the Hattiesburg Police Department for public records on its seizures of firearms. Ward claims the department illegally seized more than 800 guns without going through the proper forfeiture process, and then sold them at public auction. The problem, he says he’s encountered, is getting the owners to come forward.

“These people who have been the victims of unlawful seizures are scared to death,” Ward says. “They’ve seen how much power the police have, and they don’t want to stand in the state capitol and point a finger at 50 to 60 police officers. Most of these people have been through so much trying to get their property back that they don’t want anything to do with it.”

* The charges against Rehfeldt’s client were later dismissed, and she eventually had her record expunged. For those reasons, Reason chose not to publish her name. The prosecutor in the case, now an attorney for the city of Jackson, declined to comment. The whereabouts of the couch remain unknown.

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