Audit: Kansas’ civil forfeiture laws too vague

? Law enforcement agencies in Kansas are taking advantage of vague state forfeiture laws and using the proceeds to pay for salaries and possibly other operating expenses — a practice that creates an incentive for more seizures during lean budget years, a legislative audit found.

Though the agencies generally complied with major state forfeiture laws, which allow for the seizure of money or property of a suspected criminal even when no charges are filed, none surveyed had written policies and procedures for handling the proceeds.

The American Civil Liberties Union called the audit’s findings “deeply, deeply troubling” but said they were consistent with a system that is broken. But Ed Klumpp, a lobbyist for the Kansas Association of Chiefs of Police, countered that the audit didn’t reveal any misappropriation of funds and said not being able to use the laws would “be a loss in our ability to deter crime in Kansas” because police often can identify assets that come from crime but can’t identify the person responsible for the crime, meaning proceeds would have to go back to a criminal enterprise.

A push for more states to restrict police from seizing cash and property during traffic stops is aligning the likes of conservative billionaire Charles Koch and the ACLU. There is also bipartisan support in Kansas to tighten the law.

Missouri, Nebraska and New Mexico require a person be convicted of a crime before their property can be forfeited, the audit found, while Kansas, Iowa and the federal government do not require a conviction. Kansas and Iowa allow law enforcement agencies to keep most of the forfeiture proceeds, while the other three states mostly did not.

Rep. Gail Finney, a Wichita Democrat, convinced the Legislative Post Audit Committee to do the audit, which was released last month. She plans to again introduce a bill to address the law in the next legislative session.

“The average person in Kansas has no idea that in the state of Kansas your assets can be seized without you being arrested or convicted of a crime,” she said. “To me that is horrendous.”

The Kansas Highway Patrol last year deposited $842,041 into its forfeiture fund, which had a year-end balance of more than $2 million. Other forfeiture funds deposited last year by agencies included: Sedgwick County Sheriff’s Office, $76,469; Salina Police Department, $23,072; Coffeyville Police Department, $9,363; Kansas Bureau of Investigation, $6,052; and Iola Police Department, $4,104.

The state’s police departments have broad discretion on how to use proceeds, which the audit said creates a risk they could begin to depend on them for operating funds. Vague language in the state law regarding the use of the proceeds for “special, additional law enforcement purposes” weakens the prohibition of using them for normal operating expenses, the audit found.

For example, the Kansas Highway Patrol spent about $413,000 on employee salaries from December 2012 through June 2015, which the audit noted was approved by the Legislature in a budget provision in 2015. KHP defended the practice, the audit report noted, by saying they used them only for people involved in the forfeiture process. The Salina Police Department used forfeiture money to pay for recurring cellphone bills for its drug task force, a use the agency defended because it was a special unit.

The audit was especially critical of what it called a conflict of interest by Montgomery County Attorney Larry Markle, who is handling the Coffeyville Police Department’s forfeitures as a private attorney, not in his public role. That has diverted about $21,000 in legal fees to his law firm that otherwise would have gone to the county attorney’s office.

It also noted Markle charges Coffeyville more for uncontested forfeitures than he could charge as the county attorney.

Markle did not return phone messages left at his office seeking comment. In his response letter to the auditor, he wrote: “You analysis is faulty and your conclusions in error.”

Because Markle is not a state employee, ethics laws do not apply in his case. But the audit said such laws are still relevant in evaluating its appropriateness: “That is because the Montgomery County Attorney used his public role to award Coffeyville forfeitures to his private firm, a decision that clearly benefited him.”

The Montgomery County example is a particularly egregious example, said Micah Kubic, executive director of the ACLU of Kansas.

“But when the current law allows law enforcement to seize people’s private property based only on suspicion — with no conviction, not even require that they be charged with a crime, and then keep the money or property that they seize in order to fund their own operations — that is a pretty clear conflict of interest as well,” he said.

The full report can be found online by searching for “seized property.”