Should law enforcement be able to take citizens’ property without filing charges? (Capitol Updates)

Photo by Thomas R Machnitzki
Photo by Thomas R Machnitzki

Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1991. He currently practices law in Tulsa and represents clients at the Capitol. You can sign up on his website to receive the Capitol Updates newsletter by email.

An interesting tug-of-war has developed between Sen. Kyle Loveless, R-Oklahoma City, author of SB 838 changing Oklahoma’s asset forfeiture law and Sen. Anthony Sykes, R-Moore, Chair of the Senate Judiciary Committee. Loveless introduced SB 838 with two weeks remaining in last year’s legislative session, saying at the time that he wanted to have an in-depth study of the current law and hear from Oklahomans who believe they have been the victims of unfair treatment through the forfeiture process. Sen. Loveless made a timely request for an interim study which was later assigned to Sykes’ Judiciary Committee for hearing.

Loveless arranged for some distinguished witnesses for the study hearing, including John Malcolm, Director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow at the Heritage Foundation as well as a former deputy assistant U.S. Attorney General under President George W. Bush; Brad Cates , former director of the US Department of Justice asset forfeiture office under President Ronald Reagan; Adam Bates from the CATO Institute; Stephen Henderson, Professor of Law, University of Oklahoma School of Law; Brady Henderson, Legal Director, American Civil Liberties Union of Oklahoma; and Jacquelyn Ford, Attorney at Law. Opposition for SB 838 has come mainly from District Attorneys, Sheriffs and other law enforcement agencies who both enforce and benefit in their official capacities from asset forfeiture.

The proposal should make for a lively discussion since the Heritage Foundation, the Cato Institute, academics and the ACLU find themselves on the same side of the issue arrayed against the DAs and law enforcement, who are uncomfortably on the defensive. The reason law enforcement is on the defensive is because the agencies unabashedly need the money generated by asset forfeitures. Taxpayers have decided they no longer want to pay enough taxes to support the law enforcement they want, so they have come to expect the law enforcers to find ways to fund themselves.

Therein is found the source of the conflict. What in the beginning was envisioned as a law enforcement tool to deprive law breakers of the fruits and means of their ill-gotten gains has now become subject to the profit motive. To some, governmental authority should not be used to self-fund the agency exercising that authority. The possibilities for abuse are obvious. It would be naïve to think that everyone who has property forfeited without being charged with a crime is “innocent.” But a few may be. And it doesn’t seem to square with American values that the government can seize your property as proceeds or instrumentalities of a crime, and they get to keep it unless you go to court to get it back. Who wants to attract the scrutiny of the DA or the Sheriff by contesting their keeping of the property? For most people the smart move is to just walk away and let them have it.

The heat this issue could generate is aptly demonstrated by the difficulty in even having a hearing for the interim study. Sen. Sykes apparently decided to give law enforcement the home field advantage by scheduling the study at the Tulsa Police Academy. Sen. Loveless has done an end around. He withdrew his request for an interim study and announced his own hearing on asset forfeiture at the capitol on Tuesday morning. Going against “the system” is usually not too healthy for a piece of legislation, but sometimes it’s the only option.

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Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1990. He currently practices law in Tulsa and represents clients at the Capitol.

3 thoughts on “Should law enforcement be able to take citizens’ property without filing charges? (Capitol Updates)

  1. Asset forfeiture without due process of law violates the Constitutional protection against unreasonable search and seizure. The Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warren’s shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person’s or things to be siezed.”
    The Fifth and Sixth Amendments lay out due process rights.
    It is clear that a simple declaration of asset forfeiture is Unconstitutional.
    And please, the supremacy clause in Article IV makes it clear that the Constitution is the law of the land and superior to state laws.

  2. Aside from being in conflict with ‘due process ‘, it places the seizing agency in the difficult position of being a hungry fox guarding the hen house. A look at other states (like Louisiana) shows what can happen: out of state & minorities targeted. Causes listed were: having tinted windows, car too clean, car too dirty. Unbelievable that this is still allowed.

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