KU Statehouse Wire Service
Keith Stradford had $28,256 in the back of his sister’s car when he and a friend left Virginia for a cross-country trip to California to attend a graduation.
The two planned to use the money to gamble in Las Vegas on their way West, and to buy a truck to start Stratford’s trucking business on the return trip. That plan, however, crumbled when Stradford was stopped for speeding in Hayes, Kansas, by the Kansas Highway Patrol.
Stradford said his friend, who was driving, was never ticketed for speeding, but the officer claimed to smell marijuana and searched the car.
“He said that he smelled weed and of course if somebody said they smelled weed that’s going to give them a reason to search the car, but I don’t think that gives you reason to search the trunk,” said Stradford, who is African American. “He came from the other side of the road and came and got behind us and there were cars that were flying down the road, literally flying. So I do feel like I was discriminated on.”
Stradford’s cash was found and seized by the Kansas Highway Patrol on Oct. 24, 2017. Six months later Stradford is still in the process of appealing to the state of Kansas to have his $28,256 returned. In the meantime, he has put his trucking business plans on hold, and has had to borrow money from family to take care of himself and his child.
“Having a kid, I have responsibilities. You don’t want to show your family that you’re weak, and I have mental breakdowns because I feel like I did something wrong,” Stradford said. “I need that money to keep my life going.”
Asset forfeiture in Kansas
Under Kansas law, a person can be required to forfeit his or her property to law enforcement agencies if the officer has reason to believe the property, oftentimes cash, is connected to illegal activity, which includes forgery, human trafficking, drug trafficking and other possible crimes.
A criminal conviction is not required for forfeiture and seizure to occur, but law enforcement must either obtain a warrant to seize the property or demonstrate probable cause to believe that the property is subject to forfeiture. Once law enforcement has proved probable cause, the individual who has lost property must prove that no illegal activity was taking place in order to retrieve their property.
Because Kansas does not have a central reporting structure for asset forfeiture it is difficult to determine exactly how much property is seized in the state. However, the Kansas Highway Patrol took in just over $1 million in forfeiture funds in 2016 and just under $1 million in 2017.
“A lot of the time they just don’t fight because they don’t have the resources, the knowledge or the money,” said Rep. Gail Finney (D-Wichita), who has been active in drafting legislation regarding the issue.
Kansas is considered one of the most intrusive states in its handling of civil asset forfeiture. The state has been criticized for a lack of transparency on the issue and for its low bar for property seizures.
In March, Gov. Jeff Colyer signed into law House Bill 2459, which establishes reporting requirements for law enforcement agencies in an attempt to make civil asset forfeiture in the state more transparent. The law, which will go into effect July 1, has faced praise and criticism from both sides of the aisle but it has been a long time coming.
Audit of Kansas asset forfeiture
In July 2016 the Legislative Division of Post Audit published a report on the state of asset forfeiture in Kansas. The audit came at the request of Finney, who had been particularly interested in the topic since receiving calls from constituents who had lost their property in recent years.
“When I started looking into it, I was thinking that just doesn’t seem just,” Finney said.
The audit was a follow up to a similar report released in 2000. The primary conclusion of the 2000 report was that there were few significant or systemic problems in civil asset forfeitures in the state. However, some of the findings from 2000 were replicated in 2016.
“We call out in the report some of those similarities,” said Kristin Rottinghaus, legislative post auditor. “They found things like reporting requirements and how it didn’t appear that most agencies or many agencies were complying with those requirements they also talked about comingling of drug tax stamp proceeds and asset forfeiture funds.”
The 2016 audit evaluated six state and local law enforcement agencies and compared Kansas to other states in the region. The auditors were unable to get a holistic picture of Kansas forfeitures.
“There is no centralized reporting at the time that we did the audit. There was no way for us to know how much activity there is,” Rottinghaus said.
In order to evaluate the state as a whole, the office would have had to individually interview all 371 agencies in Kansas. Instead they opted to pick six: the Kansas Bureau of Investigations, the Kansas Highway Patrol, the Coffeyville Police Department, the Salina Police Department, the Iola Police Department and the Sedgwick County Sheriff’s office. It took the department roughly a year to compile a report based on just those six.
The research showed that only two of the six audited agencies followed state policies for reporting. Furthermore, the report showed that nearly all the agencies did a poor job of separating their forfeiture funds from other funds in their accounts, inhibiting their ability to ensure they are following regulations.
“When you mix (funds) and you can’t distinguish which is drug tax and which is forfeiture, there isn’t a good way or any way to figure out which you’re spending,” Rottinghaus said.
Under the law evaluated in the audit, there were limitations on how agencies could spend the forfeiture money, however, they were vague. It simply said that agencies could not use the funds on normal operations but could use them on special purposes.
“The question becomes does the latter supersede the former requirement or are they equal in weight? That’s the clarification we were looking for at the time,” Rottinghaus said.
She said there were instances in which departments spent their funds on cell phone bills, and the Kansas Highway Patrol spent $453,491 of those funds on payroll. All departments spent some of the money on training costs and general equipment.
As a result of these findings the auditors submitted two recommendations in their report. One was to create a central reporting structure and the other was to clarify how agencies can spend the funds.
As a result of the audit, there were calls for change within the forfeiture system.
There were five bills regarding asset forfeiture proposed during the 2017 legislative session. House Bill 2018, sponsored by Finney, and House Bill 2116, drafted by the ACLU, both sought to reform Kansas asset forfeiture laws, ultimately requiring a conviction before law enforcement could seize property.
The bills had bipartisan support, earning them a hearing in the House Judiciary Committee. Although many testified in support of the legislation, the hearings showed pushback from cities and law enforcement agencies. The argument was that it would place too large of a burden upon law enforcement thereby impeding upon their ability to combat drug trafficking.
“Law enforcement officers have been more effective at hindering criminal enterprise and disrupting criminal organizations by using the standard asset seizure and forfeiture act in conjunction with criminal statutes,” said Col. Mark Bruce on behalf of the Kansas Highway Patrol in opposition to House Bill 2018. “Forfeiture has proven to be an effective toolwhere traditional punishments fall short.”
The bills did not advance out of committee. Finney said she believed it was because the committee chairs did not want to put themselves in the middle of such a controversial issue and because law enforcement has a large amount of influence over the Legislature.
“Our Legislature doesn’t have the backbone in my opinion to address law enforcement,” Finney said. “Law enforcement has a heavy hand when it comes to lobbying and they have a lot of influence over the Kansas state Legislature and I think until that changes we will have a continuous not being able to have real good legislation passed that benefits citizens.”
Committee to study forfeiture
After the 2017 legislative session didn’t amend current civil asset forfeiture law in any way, the judiciary committee chairmen asked that a Kansas Judicial Council be formed to study the issue of civil asset forfeiture and issue recommendations.
The committee included Finney as well as other state legislators, law enforcement leaders and the American Civil Liberties Union, among others.
“I believe the intent was to have as many proponents and opponents in the room,” Finney said.
Finney, however, said the progress of the committee, which met during the summer of 2017, was immediately limited by some of the individuals included.
“Law enforcement leaders made it clear from the very beginning that a deal breaker was that they would not lower the burden from what it currently is,” Finney said. “They definitely made it clear that no provision could go as far as to require a conviction for a crime.”
She said they came to this conclusion because of the resources it would take from law enforcement to own the burden of proof. She also said the argument was consistently made that more information needed to be known before sweeping legislation could be made.
Taking into account the recommendations from the legislative post audit, the committee ultimately recommended a bill that created a central repository for the information, prohibited a district attorney from taking on a civil asset forfeiture case as a private attorney, created guidelines for what agencies could spend forfeiture funds on, and increased the time in which defendants had to appeal their forfeiture. That bill was introduced to the House Judiciary Committee during the 2018 session as House Bill 2459.
“When you start off with those are the deal breakers, you know the compromise is going to be much weaker than really a robust change in our civil asset forfeiture law,” Finney said. “So, this is the product that we ended up with.”
Law enforcement usage
In 2016, the Kansas Highway Patrol gained more than $1 million from asset forfeitures but that number dropped to $980,478 in 2017 Each of these numbers are relatively small in comparison to the patrols budget of $82,395,562 in 2016 and $89,087,967 in 2017. However, as the legislative post audit revealed those funds were spent on a variety of things, including training costs and payroll. The El Dorado Police Department and Russell County Sheriff’s Office said they bring in far less forfeiture funds than KHP but spend it on similar items such as training, equipment and special expenses.
“We’re not allowed to depend on it to supplant our budget,” said Sarah Washburn, legal counsel for KHP.
Members of law enforcement, however, said they see the law as an important tool for fighting crime such as drug trafficking and human trafficking.
“No. 1, it makes a statement to people that are committing crimes and it does help agencies be able to do things and maybe purchase things that couldn’t be a regulated budgeted item,” El Dorado Police Chief Curt Zieman said.
Hogelin with KHP said those who are often subject to this type of forfeiture are criminals, and there is little difference between law enforcement seizing the proceeds of a drug sale and the drugs themselves. He said there is no specific thing that officers are looking for when a seizure takes place but rather it is the situation in totality that is considered.
“Some of the indicators of why we think that money is tied to illegal drug trafficking or criminal activity is independent there again to each traffic stop or investigation so I can’t really think of any one thing,” Hogelin said. “Unless there’s 20 pounds of marijuana sitting next to $40,000 in cash.”
Washburn said individuals such as Stradford who claim to have been doing nothing wrong have an opportunity to get their property back through civil claims.
Russell County Sheriff Fred Whitman said he believes asset forfeiture is becoming less important and officers need to make sure their motives are correct.
“I think it’s a little bit along the ways of cutting the supply line; it’s a definite tool in fighting the drug trade,” Whitman said. “I think it should be an important tool to fight crime not an important tool to make money.”
Washburn said that, while the highway patrol will comply with the wishes of the Legislature, a requirement of criminal conviction before forfeiture could take place would cause extra trouble for the agency.
“The issue that comes into play is what if everyone says it’s not mine, which happens,” Washburn said. “Charging someone criminally is a completely different animal than seeking to civilly forfeit property.”
The highway patrol refers criminal charges alongside any seizures that occur.
Whitman however, said his department has used the practice sparingly in the past few years, and although he is unsure a conviction should be required he believes forfeitures should not take place unless a person is at least charged with a crime.
“I’m a lot more comfortable with an asset forfeiture if a person is charged,” Whitman said.
House Bill 2459 will be the first change to the civil asset forfeiture law in 24 years. The changes largely align with the recommendations made by the office of legislative post audit. The bill directs the Kansas Bureau of Investigations to create a central repository for law enforcement agencies to report seizures, establish a list of items the funds from forfeitures might be spent on, extends the period of time during which a person can file to regain his or her property, and prevents an attorney general from acting as a private attorney for the agency in forfeiture cases.
Rottinghaus said the bill gives more teeth to the reporting requirement, giving the KBI the ability to halt forfeiture practices for agencies that fail to report.
“That is more of a stick then existed before,” Rottinghaus said. “Before it was, ‘You should do it.’ There was no penalty if you did not submit your report.”
However, Rottinghaus said she was unsure whether the bill would change the impact that asset forfeiture has on budgets. Included in the list of acceptable spending of funds is “the support of investigations and operations that further the law enforcement agency’s goals or missions.”
“If we were to go back and audit this, we would spend some time trying to figure out what that really means because there’s some things in there that are not as specific, like training,” Rottinghaus said. “I don’t know if the salaries or we saw some cell phone bills and stuff if that would be allowable.”
The Kansas Highway Patrol did not comment on whether the bill would change their spending practices.
Although it passed unanimously through the Senate and 110-7 through the House, neither law enforcement or those arguing against the practice were fully satisfied with the bill.
It was described as a first step and a compromise some believed didn’t go far enough, while others argued it went too far.
“Personally I don’t think that the bill goes nearly far enough; it’s a first step,” Finney said. “I’ve had quite a few citizens contact me that are really disappointed with Kansas that all we could do was come up with a way to collect data.”
This opinion was also expressed by individuals testifying on the bill in the House Judiciary Committee.
“This bill offers an increase in transparency in the smallest increment while doing nothing to address the staggering problems underlying the many abuses of asset forfeiture in Kansas,” said James Franko, vice president and policy director at the Kansas Policy Institute.
Greg Smith, a liaison for the Johnson County Sheriff’s office, compared Kansas to other states in neutral testimony on the bill saying that asset forfeiture is a necessary process.
“We believe the current law is sufficient,” Smith said.
Hogelin with the Kansas Highway Patrol said the bill would have minimal impact on the practices of the force itself. However, KHP Legal Counsel Washburn said it will impact things with civil proceedings by changing the timing of notices and appeals.
“It’s really just a difference in degree but not really kind,” Washburn said.
Moving forward, Finney said she doesn’t have immediate plans to push for legislation requiring a criminal conviction for forfeiture but she expects others do.
“I want to give it time to compile some of the data,” she said.
The bill will become effective on July 1 but the first set of data will not become available until February 2020.
“In the meantime, Kansas citizens can still be pulled over and their assets seized, cash and car, without being charged with a crime, and that’s unfortunate,” Finney said.
She said it will be important for legislators to be diligent when that data arrives.
“I’m just hoping and praying that they’re actually going to do something about it and not just shove it over,” Finney said.
However, Finney also hopes that a solution can be pursued in better funding of law enforcement which she says would disincentive asset forfeiture when it is not truly necessary.
“I would love it for the state of Kansas to provide a budget for our law enforcement that would help them with training that would help them with recruiting that would help them to get the supplies that they need without them having to depend on forfeitures,” Finney said. “I would love to see law enforcement actually go after kingpins not just innocent owners or people who don’t have the funds to fight forfeitures when their property is seized.”
As for Stradford, current changes in law will not help him regain his property. He is currently searching for a new lawyer to take on his case but is confident he will eventually win out.
“If I get the right paperwork and the right stuff, I should be able to get my money back because being that this officer stopped me without a traffic violation. I have the proof of my money, it shouldn’t be a problem,” Stradford said.
Katie Bernard is a University of Kansas junior studying journalism from Overland Park.