Drug enforcers can still seize your state-legal cannabis cash under forfeiture laws
It was a simple broken taillight that transformed a touring Christian rock band into accused narcotics traffickers five years ago in Muskogee County.
Sheriff’s deputies there pulled over the Klo & Kweh Music Team after the group had driven 12 hours straight. The band had played shows already in 19 cities and were raising money for schools and orphanages in their home country of Burma, also known as Myanmar.
Their home country has two names because it’s experienced strife in recent decades. This is so much the case that the United States welcomes persecuted Burmese refugees to its shores, particularly the Christian ones.
The Muskogee County Sheriff’s Office was hearing none of this.
After claiming a drug K-9 had alerted to the band’s vehicle, the deputies conducted a search and found no evidence of any crime. No paraphernalia, no drugs, and no weapons. These facts are not in dispute today.
The deputies did, however, find $53,000 in cash that the Klo & Kweh Music Team had raised for charity and to cover the band’s touring expenses. So the deputies took it. And they were free to do so under drug-asset forfeiture laws still unknown to most Americans.
After the Washington Post published an in-depth story in 2016 about what happened to the Klo & Kweh Music Team, the outrage was near-immediate. An embarrassed Muskogee County District Attorney’s Office sheepishly gave the $53,000 back to the Klo & Kweh Music Team and acknowledged there was no evidence of a drug crime or any crime at all.
“I just couldn't believe it,” the band’s manager, who doesn’t smoke or drink, later told the Post. “An officer was telling me that ‘you are going to jail tonight,’ and I don’t know what to think. What did I do that would make me go to jail? I didn’t do anything. Why is he saying that?”
It happens all the time in America
Even now, the story of the Klo & Kweh Music Team is a rare instance in which a harsh public spotlight was placed upon America’s civil-asset forfeiture laws. But seizures like this take place virtually every day, and most of them don’t get nationwide publicity that embarrasses law enforcement into giving back the money.
If you own a cash-intensive Oklahoma cannabis business, there’s no reason you couldn’t become the Klo & Kweh Music Team on any given day. To prove I’m not overstating my worries here for Oklahoma cannabis businesses, I want you to go to this link. Set the “State” box to “Oklahoma” and leave everything else unchanged. Then click “Search Public Notices.”
What you’ll see in the results are people in Oklahoma who very recently had cash or property seized from them by law enforcers here under drug-asset forfeiture laws. These laws were passed by Congress at the height of the nation’s War on Drugs as a well-intended tool for law enforcement to strip criminal kingpins of illicit drug proceeds. But these laws were also passed at a different time in America’s policy thinking when politicians competed by framing one another as soft on crime.
Public attitudes toward marijuana and all drugs have obviously and dramatically evolved here and everywhere since that time. Yet check out this recent notice below from Oklahoma as an important example of what you’ll see in many of the other forfeiture notices from our search results above.
This particular notice is for $185,000 worth of cash seized just a few months ago on Nov. 13. Look closely. The seizure was not carried out by the federal Drug Enforcement Administration. It was carried out by the Oklahoma Highway Patrol and then “adopted by the DEA for forfeiture.”
The only reason we know this was a drug-related seizure is because it was passed through the DEA in Washington. You’ll find no other indication of the suspected drug involved or any corresponding criminal drug charges in federal or state courts. You won’t find any news stories about this, either.
Since federal and state drug enforcers don’t need drug evidence to justify such a seizure anyway, no one anywhere can definitively say how many drug-asset forfeitures involve which controlled substance, whether it’s cannabis or heroin.
And the fact that medical marijuana is legal in Oklahoma matters not at all. By passing the seizure through the DEA in Washington, the Oklahoma Highway Patrol is slyly utilizing another federal rule unfamiliar to most Americans: “Federal Equitable Sharing.”
Don’t confuse this with the “social equity” everyone’s talking about in cannabis. Drug War equitable sharing is the opposite of social equity that seeks to meaningfully correct some of the worst excesses of the Drug War itself, like drug-asset forfeiture laws.
Under federal equitable sharing rules, Oklahoma law enforcers get to keep 80 percent of what they seize and then spend it on themselves. The DEA takes the remaining 20 percent for all of the bureaucratic sweat equity it invested in moving around paper and enabling Oklahoma law enforcement to evade unwanted scrutiny from the people of Oklahoma.
So maybe get a lawyer
Recall that no evidence of a drug crime or any crime was ever found by Muskogee deputies during the traffic stop of the Klo & Kweh Music Team.
What drug enforcers are doing in an asset-forfeiture case is suing your money or property under civil laws for being narco nuisances. Crucially, however, the burden of proof is on you. And since it’s not a criminal case, you don’t get the luxury of being innocent until proven guilty beyond a reasonable doubt.
This results in bizarre-sounding civil cases with names like United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls. You must now prove that your car or house or cash were not involved in criminal drug activity, even if no drug evidence was ever found.
So now imagine you are the Klo & Kweh Music Team and had $53,000 in cash seized by Muskogee County sheriff’s deputies on an Oklahoma roadside. That’s not difficult to imagine for a cash-intensive cannabis business here.
You know already that while some banks are loosening their rules, most banks in America remain disinclined to do business with state-legal cannabis as long as what you do is federally prohibited. That means for the time being, you get to handle lots of dirty cash that not only carries viruses and makes you an endless robbery target, it could be taken by the government at any time with no drug evidence or arrest under existing forfeiture laws.
Surprise! Police lobbyists like it this way
At this point, it should not surprise you to learn that there’s been some sharp, frequent criticism of civil-asset forfeiture laws over the years from both sides of the aisle.
Some of that criticism is coming from Republicans in Oklahoma, including a bill proposed recently by a Broken Arrow lawmaker that would require state law enforcers to report each year what they seize under asset-forfeiture laws and what happened to it.
A bill passed in 2016 enables you to force the government to pay your legal costs if the evidence eventually shows that your assets were wrongly taken. But there’s no telling how long that could take in a given forfeiture case. Your cash doesn’t have the right to a speedy trial.
Despite criticism of these laws, the Frontier investigative news site in Tulsa found that cash seized and forfeited in Oklahoma had almost doubled during 2017 over the previous year. The value of the haul for authorities when added with seized property was $6.8 million, more than any year since 2000.
Asset-forfeiture laws for years have pumped astonishing amounts of money into law enforcement coffers nationwide and created a major dependency in the process. The watchdog inspector general for the U.S. Justice Department -- the parent agency of the DEA -- determined in 2017 that the drug enforcers had taken $4 billion in cash over the previous decade. But 75 percent of it -- or $3.2 billion -- was never linked to any criminal charges.
Most of the forfeitures examined by the government watchdog “were initiated based on the observations and immediate judgment of DEA agents and state and local task-force officers, without preexisting intelligence of a specific drug crime.”
Police, sheriffs, and prosecutors have long aggressively and successfully lobbied against curtailing or ending drug-asset forfeiture laws. This as the world is changing its mind about the legacy of the War on Drugs.
Given that Oklahoma law enforcement can still simply pass the money through Washington in what amounts to a bureaucratic money-laundering scheme, it’s hard to see how improved transparency in the form of annual reports goes far enough.
Even in legal states
Forfeitures by federal and state drug enforcers continue apace even where it’s legal.
Voters in Michigan began taking steps to legalize cannabis some 13 years ago now. Yet deputies arrested a Detroit nurse named Crystal Sisson in 2018 after she legally purchased $10 worth of marijuana at a dispensary the deputies had been monitoring. They then took the woman’s car under drug-asset forfeiture laws and saddled her with $1,200 in legal costs for not having a medical marijuana card.
“Ms. Sisson’s case is not unique and similar asset-seizure practices have been reported across the country,” warns the Massachusetts law firm Burns & Levinson.
The firm points out that it’s not just dispensary customers at risk.
“In addition to crippling marijuana businesses by targeting their customers, asset forfeiture has been used against the dispensaries themselves. Even if Ms. Sisson had not been charged with any crime, her car could have nonetheless still been seized under asset-forfeiture laws and the same holds true for any lawfully operating dispensary.”
Reporters at Vice News found numerous cash seizures in 2019 that targeted travelers in the Broward County area of Florida who were carrying small amounts of money but no drug evidence. Voters there began legalizing in 2016. Police in Ohio -- where medical marijuana was authorized in 2016 -- took $45,000 in cash from a man who was found with just seven grams of marijuana during a traffic stop. He was also charged with drug possession.
A stunning 100 homes were seized two years ago by authorities in Sacramento, California. Voters there began legalizing almost 15 years ago now. Over 500 local, state, and federal law enforcers were involved in the raid.
Investigators say the homes were used as part of a network of unauthorized grow operations. The government noticed that utility bills for the homes were extraordinarily high. The estimated value of the seized homes and marijuana is hundreds of millions of dollars.
Says one cannabis law expert in California: “Absent any affirmative statements or acts to the contrary from the Justice Department, the mere threat of asset forfeiture could have a chilling effect on future investment in the cannabis industry and is, at a minimum, a concern going forward for cannabis companies in assessing the risks inherent in their industry.”
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