Federal seizure program that benefits cops called ‘legal robbery’

Antoinette Lattimore was traveling from Cincinnati to Tucson two years ago to scout out African art, carrying nearly $20,000 in cash for possible purchases.

By the time she got to Arizona nearly a week later, she didn’t have that cash.

That’s because a Dayton, Ohio, police officer, deputized as a federal drug enforcement agent, seized the money despite the fact that he had no warrant to search her, she was not arrested and was not charged with any crime.

“I had no idea something like this could happen in America,” says Lattimore, 44, who lives in North College Hill. “I’ve never been arrested before in my life. I even could prove that it was my money but that didn’t matter.”

But it does happen and it is all completely legal. It’s called civil forfeiture and the 13 local law enforcement agencies that are part of the region’s federal drug task force earned more than $7.5 million in such seizure money in the last five years. Nationally, a total of $4.1 billion in such funds have been seized by local police and federal agents since 2006 using civil forfeiture laws.

Very little of that money gets returned to its rightful owners, again despite the fact that many of those who have their assets seized are not arrested for trafficking, dealing or even being in possession of illegal drugs.

Instead, most of the money goes back to the departments that seized it. And recourse for those targeted is extremely limited.

Why is it legal? Because Congress says so, although some are starting to question the practice.

“This is legal robbery ... and is completely unconstitutional,” says U.S. Rep. Thomas Massie, R-Garrison. “I don’t care what good they can do with that money if it was acquired unconstitutionally.”

Yet even as concern and criticism of the system rises due to stories like Lattimore’s – and calls for reform or elimination increase from those such as Massie – the number of these so-called “civil forfeiture” seizures are growing here and across the country, raising significant dollars for local law enforcement agencies.

The annual totals have grown as more members have joined the task force (and share in the proceeds), and those members have become increasingly active. In fact, the amount of seizure monies received so far this year (through July) are already equal to all of last year’s haul.

Nearly $2 million of those seized funds went to the police department at the Cincinnati/Northern Kentucky International Airport, one of the longest-standing members of the task force and where the Drug Enforcement Agency created a base of operations in 2012.

Departments involved in federal task forces and seizures can’t use the recovered funds for their general budgets to pay normal expenses including salaries. But the money can be used to buy equipment and pay for training those agencies might not otherwise be able to afford, for weapons and added protective gear.

The CVG police department, for example, is in the process of buying a $208,000 SWAT van with some of the seized money. Previous CVG purchases have included new bikes.

And even though the Justice Department tracks down to the penny which department receives how much and even what they spend it on, federal and local agencies say they do not track how many seizures actually result in arrests of any kind.

Local and federal officials defend the practice, saying it is an effective deterrent against drug traffickers and that they are following the law.

“The reason there isn’t a one-to-one correlation between seizures and arrests is because a holistic approach is used,” says CVG chief executive officer Candace McGraw. “We follow all the procedures and I think this is an effective tool in deterring money from going into the hands of drug dealers.”

In a statement, DEA spokesman Joseph Moses says that “asset forfeiture has the power to disrupt or dismantle criminal organizations” that could only continue with convictions of “specific individuals.”

How it works

Federal seizure laws are not unique to the United States. England, France and even China have been seizing property of suspected criminals or terrorists for centuries, and U.S. federal agents did so extensively during the 1930s to deter bootleggers during Prohibition. In 1984, Congress passed a law strengthening law enforcement’s ability to take property as a way to crack down on the growing drug trade.

The laws have been used even more liberally after the terror attacks on Sept. 11, 2001.

Through June of 2015, the 13 local agencies taking part in the regional DEA task force collected more than $1 million in civil seizure money from the federal government. That compares to nearly $1.3 million for all of last year, and just $690,000 in 2012.

The local agencies aren’t alone in that growth. Nationally, a total of nearly $4.1 billion has been distributed to law enforcement agencies since 2006, as compared to less than half that the previous decade. Statewide, the amount of civil seizure assets received in Ohio more than doubled to more than $20 million in 2014 as compared to 2004; Kentucky’s total grew more than four times over the last 10 years to 2014’s total of $14 million.

Local officials say that they follow a careful investigative process before conducting a seizure.

“It isn’t like we just walk up to someone who looks funny or might smell like drugs and take their money,” says Cincinnati Police Capt. Paul Neudigate, who has two officers assigned to the local DEA task force. “At the airport, for example, we’ll see that he or she bought a ticket last minute with cash to a known source city. And we can also look at their criminal history before we talk to them.”

Says the DEA’s Moses: The agency “goes to great lengths to ensure property and due process rights are preserved throughout the forfeiture process.”

When local officers actually seize money or property, the assets go into a federal asset forfeiture fund overseen by the Justice Department. The money can be kept by the government if the original owner doesn’t contest the seizure, if a federal magistrate rules the seizure was legitimate upon appeal or the government settles with the owner to keep part of the funds/assets.

Up to 80 percent of what is kept is sent back to members of the local task force by the Justice Department. Then the money is distributed to the individual members according to a previously agreed upon formula.

Factors figuring into who gets what share include where the seizure was conducted, who participated and how much the agency participates as a whole. (The remaining 20 percent is retained by the Justice Department as “administrative costs.”) CVG has received more than any of the other agencies under this formula due in part to the focus on the airport by the task force.

“The airport is a transportation hub for the region,” the DEA’s Moses says. “As such, DEA and its partners conduct interdiction efforts, which have proven extremely successful in identifying, disrupting and dismantling drug trafficking organizations.”

Kathy Brinkman is a local lawyer who has been on both sides of the system, and she says it can work to deter crime. But she also knows that it illegally confiscates money and assets that rightfully belong to innocent people.

Brinkman also says the program creates an incentive for police departments to participate to supplement shrinking budgets or “police for profit.”

“The motivation to become as aggressive as possible on seizures and forfeitures by state and local law enforcement agencies has become ever greater because of financial pressures,” says Brinkman, a Downtown-based criminal defense lawyer who specializes in seizure cases.

Brinkman, who spent nearly two decades as the local assistant U.S. attorney in charge of the seizure program as well as the deputy administrator over the national program, says the policy is flawed in that it is sometimes enforced by those without the training that federal agents get.

“Often it does not work because the usual constraints that the federal agencies put on their agents has not been the same culture at a local department,” she says.

How to get it back

Those innocent of any drug crime face a bureaucratic nightmare to get their funds or assets back.

An indication of that nightmare? When Lattimore petitioned to get her money back, it started a process that entails the government suing her money to keep it “in custody.” In short, the government is trying to charge the money with wrongdoing, not Lattimore.

Hence, her case was officially “United States of America (plaintiff) v. $19,660 in United States Currency (defendant).”

Some estimates say that only 2 to 4 percent of those who have assets seized actually file to get their money or property back. That number was provided by local police officials, who say that’s what they were told by the DEA. That agency, however, says it does not track that figure.

Massie and other critics argue that the number of people seeking their money back is low because only someone with resources to pay a lawyer can hope to get even some of their money back.

“It could easily cost someone $10,000 in legal fees to get $10,000 back, given all the red tape they have to fight,” says Massie, whose district includes CVG.

That was the case for Lattimore, who hired a local criminal defense lawyer to try and get her money back. Officer Kevin S. Bollinger of the Dayton Police Department claimed that a drug sniffing dog at the Dayton International Airport had turned up a positive test on Lattimore’s carry-on as justification for the seizure, according to documents related to the case obtained by The Enquirer.

Lattimore claims that would have been impossible.

“That was so ridiculous ... the dog never even came close to my bag and who knows what other drugs had been in that room before me,” she says. “I truly feel this happened because I was asking tough questions about warrants and criminal charges, both of which never materialized.”

But despite her desire to fight for all of her money, Lattimore eventually settled for the return of $11,000 to avoid what she believed would have been an agonizingly long and expensive appeals process. Lattimore figures that, after her legal fees, she is keeping less than $8,000 of the original $19,660 seized.

“I still carry cash, but I’m sure a lot smarter about it,” Lattimore says.

Cincinnati native Charles Clarke III has been able to fight for $11,000 that was taken from him at CVG last year only because he received help from a Washington, D.C. nonprofit. The Enquirer first reported on his efforts in June, when a legal advocacy group The Institute for Justice took up his case.

Clarke was flying home to Florida when he was stopped by CVG officers who claimed his luggage smelled like marijuana. Clarke says the money he was carrying was intended for college tuition. He does say that he previously smoked pot recreationally, but is now drug-free. He has yet to face criminal drug charges in the seizure case.

Strange bedfellows

Regional law enforcement officials say the program is being used for legitimate crime-fighting purposes, and not to pad the pockets of local departments. They say they will continue to use seizures to battle drug trafficking as long as they are legal.

“Law enforcement is trying to inhibit the flow of drugs into this region ... and it is very clear that there is a drug and heroin epidemic in this region,” says CVG’s CEO McGraw. “So an increase in interdictions and seizures should be there, given the rise in drug trafficking in this region.”

The proceeds from the CVG haul from civil seizures are paying for a new SWAT van, a tool airport officials say is not unusual given the size of the facility. This, despite the fact that the airport handles 80 percent less traffic than it did 10 years ago (although traffic has been trending up lately).

Airport officials say that the current SWAT van, which is 21 years old, has “thankfully only been used for a limited number of events.” But they argue that such a vehicle allows the airport to be prepared for emergencies and is used often for training and when dignitaries such as the President flies in on Air Force One.

“It is a prudent expenditure of funds, particularly since the current vehicle was purchased in 1994,” McGraw says.

While the airport’s defense of the program isn’t wavering, some of those involved in the federal program are taking a second look.

Cincinnati’s Capt. Neudigate says that the department and city officials “need to have a conversation” about civil forfeitures. Over the last five years, CPD has received $1.1 million in civil forfeitures from the federal government. (That figure includes money from working with the DEA task force as well other task forces for the Bureau of Alcohol, Firearms, Tobacco and Explosives and the FBI.)

“We have to look internally and determine whether this is still the right thing to do,” Neudigate says. “It will probably warrant a larger conversation amongst legislators about whether this may be legal. Then we need to decide whether it is the correct thing to do.”

State Rep. Diane Murray-St. Onge, R-Lakeside Park, whose district now includes CVG, says the system is a good one, “however, over the years it has been abused,” St. Onge says.

In March, former U.S. Attorney General Eric Holder limited the seizures of individual bank accounts to incidences that only included serious crimes. U.S. Sen. Rand Paul, R-Bowling Green, has introduced a bill that would eliminate the program altogether. Massie is a lead co-sponsor on the sister bill in the U.S. House.

And there is a new coalition of surprising bedfellows in Washington gearing up to change the law. Organizations as ideologically diverse as the American Civil Liberties Union, Americans for Tax Reform, FreedomWorks and the Faith and Freedom Coalition have joined together to create the Washington-based nonprofit advocacy group Fix Forfeiture. The group is working both on the federal level as well as in individual states to change civil forfeiture laws, including in Ohio.

“We’re just now starting the conversation but there are a lot of people who are outraged over this when the full story is told,” says Fix Forfeiture’s executive director Holly Harris, a long-time political operative from Kentucky. “Law enforcement shouldn’t be balancing their budgets on the backs of innocent people.”