Dave Kopel, Featured, Gold Dome, Peter Blake

Blake: Post-mortem on civil asset forfeiture

Two bills attacking “policing for profit” in Colorado were sent in opposite directions by legislative committees last week.

House Bill 1098, which would ban red-light and speed-van cameras, was approved by the House Transportation & Energy Committee and sent to Appropriations, where a similar bill died last year.

Lost in the news coverage given to the temporary triumph of that measure was the almost simultaneous defeat in committee of Senate Bill 6, which would have put more restrictions on civil asset forfeiture. That’s law enforcement’s guilty pleasure: Taking property from citizens before they’re convicted — and often before they’re even charged.

The usual partisan divide broke down on both bills. Two Democrats joined all six Republicans to pass the red-light bill, 8-5. Even more noteworthy was the peculiar alliance in the Senate Judiciary Committee, where the very conservative, anti-abortion Kevin Lundberg, R-Berthoud, and the very liberal, anti-TABOR Mike Merrifield, D-Colorado Springs, both found themselves — to their mutual surprise — voting for the measure restricting asset forfeitures.

Unfortunately, they were the only ones who did. Against it were two Republicans, Committee Chairman Ellen Roberts of Durango and John Cooke of Greeley, and Democrat Lucia Guzman of Denver. Until recently Cooke was sheriff of Weld County and presumably was under heavy pressure from his former colleagues in law enforcement.

In a tiny way, the split reflects the divisions within the increasingly fractured national Republican Party, where libertarians devoted to free markets and civil rights are at odds with social conservatives more concerned with abortion, illegal immigration and the drug war.

Sponsoring Sen. Laura Woods, R-Arvada, suffered the unhappy distinction of failing to get a bill through a committee her own party controls. But she promised later to bring back the bill next year. She said that Guzman, who voted against her, even encouraged her to do so.

Woods’ strategy was to start with four of her own witnesses, turn the floor over to opponents and then finish strong with a half dozen more of her witnesses.

But law enforcement testimony ran for more than three hours, with numerous sheriffs, police officers and prosecutors arguing against the bill on the public’s dime. Committee chair Roberts turned a snowstorm raging outside the statehouse to her advantage. Each witness was strictly limited to three minutes of testimony, but when people like Sheriff Sean Smith from Roberts’ La Plata County testified against the bill, Roberts plied them at length with many questions and kept them around 20 minutes or more.

Some of the “pro” witnesses supposed to testify at the end left early to beat the snow. “I don’t blame her for doing that,” Woods said of Roberts’ effective delaying tactics. “It was a strategy, and well-played.”

Among the missing witnesses were Denise Maes of the ACLU and a witness from LEAP (Law Enforcement Against Prohibition), a group of current and former police officers and government agents who believe the “war on drugs” has failed. They maintain legalized regulation would be less costly and more effective.

Woods summarized the opposition this way: “What I heard law enforcement say is ‘we want the money, we need the money, give us the money.’ We say what about due process? They come back and say, ‘the courts say we don’t have to worry about due process and if you don’t give us the money the fight against human trafficking is going to stop.’ ”

The effort to stop human trafficking, by the way, was what turned Guzman against the bill. Not being a fan of the drug war, she said she supported S.B. 6 until she heard testimony about recent prosecutions for trafficking in women for purposes of prostitution.

The last time the U.S. Supreme Court addressed asset forfeiture was in 1996, in Bennis vs.Michigan. In a 5-4 ruling, the court held that a Michigan woman who didn’t know her husband was having sex with a prostitute in a car she jointly owned with him was out of luck when police arrested him and confiscated the car.

Lee McGrath, a lawyer with the Institute for Justice, counseled Woods on her bill. In a postmortem, she said, he observed that Republicans are predictably anti-union when it comes to teachers, commercial workers, plumbers and such. “But when we get to the law enforcement unions and the very strong lobby they have, we tend to cave on that.”

Lundberg, in explaining his vote for the bill, described law enforcement’s testimony as “alarming.” “What I heard this afternoon was ‘just give us the money, please. I did not hear an attempt for justice…. To set up this perverse incentive system without true due process is completely inappropriate. It’s a cruel joke to say that oh, well, [asset forfeiture] is on the civil side. That’s a legal work-around to what is clearly intended in the Bill of Rights.”

Longtime Rocky Mountain News political columnist Peter Blake now writes twice a month for CompleteColorado.com. Contact him at pblake0705@comcast.net You may re-publish his work at no charge and without further permission; please give full credit to Peter Blake and www.CompleteColorado.com.

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