Tuesday, May 17, 2011

It's Time for State's Judges to Enforce Civil Forfeiture Law By Demanding a Case-By-Case Calculation of Law Enforcement Costs With Rest Going to Common School Fund

In today's paper, the Indianapolis Star has an editorial pointing out the need for there to be changes to clarify the civil forfeiture law.  This is one area where I've always disagreed with the Star.  The problem is not so much that the civil forfeiture law is "vague" as it simply not followed by the county prosecutors and law enforcement officials.  More importantly though the problem is that the state's trial court judges are not enforcing the existing law. 

Let's go back to Saturday's Indianapolis  Star and examine comments made by two individuals involved in forfeiture, Tom Michalek chief financial officer of the Department of Public Safety and Chris Gambill a private attorney who does civil forfeiture on a contract basis with several county prosecutors.  Here's the article in part:
Marion County forfeiture funds make up only a little over 1 percent of Marion County law enforcement costs, but they pay for the majority of the Metro Drug Task Force, which runs on about a million dollars per year, said Tom Michalak chief financial officer for the city of Indianapolis' Department of Public Safety.

"The Marion County taxpayer doesn't pay for (the Metro Drug Task Force)," Michalak said. "The Marion County criminal pays for them."

The budget of the Marion County prosecutor's office anticipates receiving $300,000 in forfeiture funds this year -- and not receiving those funds will make it more difficult for the agency to do its job, Prosecutor Terry Curry said last month.

For now, Michalak said, Indianapolis won't change its practice of putting the money toward law enforcement. And Chris Gambill, an attorney who handles forfeitures for several Indiana counties on a contract basis, noted that the Supreme Court opinion was nonbinding and said he would want stronger legal guidance before he would encourage his clients to part with their seized asset money.
Michalek and Gambill both seem to believe that THEY get to decide how much money is kept by law enforcement as "costs of law enforcement" under Indiana's civil forfeiture law.   Wrong.  Under the law,  judges are supposed to be making the determination of law enforcement costs, not law enforcement officials.  Let's examine the relevant statutes:
First, a civil forfeiture action is only authorized for the recovery of law enforcement costs:
IC 34-24-1-3(a) The prosecuting attorney for the county in which the seizure occurs may, within ninety (90) days after receiving written notice from the owner demanding return of the seized property or within one hundred eighty (180) days after the property is seized, whichever occurs first, cause an action for reimbursement of law enforcement costs and forfeiture to be brought by filing a complaint in the circuit, superior, or county court in the jurisdiction where the seizure occurred...
Another statute details the procedure, including that judges are supposed to make a determination of law enforcement costs, language that certainly seems to require that the county prosecutor produce evidence of the costs involved it the action:
IC 34-24-1-4(d) If the court enters judgment in favor of the state, or the state and a unit (if appropriate), the court shall, subject to section 5 of this chapter:

(1) determine the amount of law enforcement costs; and

(2) order that:

(A) the property, if it is not money or real property, be sold under section 6 of this chapter, by the sheriff of the county in which the property was seized, and if the property is a vehicle, this sale must occur after any period of use specified in subsection (c);

(B) the property, if it is real property, be sold in the same manner as real property is sold on execution under IC 34-55-6;

(C) the proceeds of the sale or the money be:

(i) deposited in the general fund of the state, or the unit that employed the law enforcement officers that seized the property; or

(ii) deposited in the general fund of a unit if the property was seized by a local law enforcement agency of the unit for an offense, an attempted offense, or a conspiracy to commit an offense under IC 35-47 as part of or in furtherance of an act of terrorism; and

(D) any excess in value of the proceeds or the money over the law enforcement costs be forfeited and transferred to the treasurer of state for deposit in the common school fund.
In Marion County, officials are not required to put forth any evidence of law enforcement costs.  Instead they disingenuously claim that law enforcement costs refer to ALL law enforcement costs in the county and unless civil forfeiture covers all those costs (it currently is about 1%) then the county doesn't have to pay anything to the Common School Fund.

Wrong.  In 1998, he Indiana legislature passed IC 34-6-2-73 to make clear that "law enforcement costs" are to be calculated on a case-by-case basis, not how Marion County does it.
IC 34-6-2-73 "Law enforcement costs", for purposes of IC 34-24-1, means:

(1) expenses incurred by the law enforcement agency that makes a seizure under IC 34-24-1 (or IC 34-4-30.1 before its repeal) for the criminal investigation associated with the seizure;

(2) repayment of the investigative fund of the law enforcement agency that makes a seizure under IC 34-24-1 to the extent that the agency can specifically identify any part of the money as having been expended from the fund; and

(3) expenses of the prosecuting attorney associated with the costs of proceedings associated with the seizure and the offenses related to the seizure.
The problem is that the law enforcers, including county prosecutors, who are sworn to uphold the law,  have no problem breaking the law if it lets their agencies keep moor loot.   The people who are supposed to put a stop to these legal violations is the state's trial judges.  It is time that those judges step up and do their jobs.   Judges need to start making law enforcement officials PROVE their law enforcement costs on a case-by-case basis and demanding that a check for the excess by cut to the Common School Fund.  That's what the existing law requires.  There is nothing vague about that.


Indy Student said...

I thought Greg Garrison handled civil forfeiture for Marion County? Or at least he did during Brizzi's tenure.

Paul K. Ogden said...

GG handles the big cases where he can make the most money. The prosecutors handle others.