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Kansas police seize millions in assets annually. Lawmakers move closer to major reforms

Kansas police who pull over a vehicle and find drug paraphernalia can potentially take the driver’s cash under state law – even if the money is for paying rent, a state lawmaker told his colleagues on Thursday.

“It’s not necessarily the intent of this and nor do I think, to be clear, that the vast majority of law enforcement agencies do that,” Rep. Stephen Owens, a Hesston Republican, said during a gathering of House Republicans on Thursday. “But the data does show that it does happen.”

The Kansas Legislature advanced proposals on Thursday that would represent the most sweeping overhaul of the state’s civil asset forfeiture laws in years. The House and Senate passed separate bills on civil asset forfeiture, a controversial practice that allows law enforcement to seize property allegedly linked to criminal activity even if someone hasn’t been charged or convicted.

The House approved it’s bill unanimously while the Senate’s passed 38-2.

In the past four years in Kansas, law enforcement seized $23.1 million in cash and other property. Of 1,884 seizures in that time more than 70% resulted in uncontested forfeitures, suggesting that, facing an expensive legal process, few even attempt to regain their property.

Critics of forfeiture have said police agencies have become too financially dependent on funds they earn from asset forfeiture. Speaking on the Senate floor, Sen. Oletha Faust-Goudeau, a Wichita Democrat, said she had constituents who for years have been unable to regain seized property.

Sen. J.R. Claeys, a Salina Republican, reminded lawmakers of a case several years ago when lawmakers attempted to pay a woman back for a seizure using the state budget. The funding was vetoed, Claeys said, but the woman was eventually paid back.

“Our civil asset policy is broken. It can too easily be abused,” he said.

The overhaul legislation aims to change this. The result of a Kansas Judicial Council study and compromise between law enforcement and civil rights groups, both bills advanced Thursday make a series of changes to the process for forfeitures and challenges to them.

Civil asset forfeiture has been a major topic in the Legislature for years but garnered additional attention this year as different groups neared compromise.

Law enforcement’s approach to due process has also come under greater scrutiny following a federal ruling this summer that the Kansas Highway Patrol violated the civil rights of drivers and a local police department’s raid of the Marion Record. Last year a Star investigation found several instances where Kansas police violated Fourth Amendment rights.

Proponents of change are hailing the legislation as a major win for due process that preserves forfeiture as a tool for police to fight drug trafficking. But discrepancies between the House and Senate bills hold the potential to scuttle an overhaul before it can make it to Democratic Gov. Laura Kelly’s desk.

Owens said the policy “goes a very long way in ensuring individual property rights balanced with law enforcement and community’s needs.”

“It is a delicate compromise, it works both ways and if it gets tilted out of balance the whole thing could easily blow up,” House Minority Leader Vic Miller, a Topeka Democrat, said.

Both the House and Senate proposals remove crimes associated with possession and personal use of drugs from the list of offenses that can result in a seizure. They also require police to submit a probable cause affidavit defending their choice to seize property, require courts to determine whether a seizure was excessive and raise the legal burden police must reach to retain property.

If a court rules that at least 51% of a person’s seized property should be returned the bills also require law enforcement to cover the cost of that individual’s attorney fees.

In written testimony on the bill earlier this month, Rashane Hamby, director of policy and research at the ACLU of Kansas, said Kansas’ current forfeiture law has placed an undue burden on claimants and has disproportionately impacted those who don’t have the resources to hire attorneys.

“These changes represent a more balanced approach that respects individual rights while allowing for the effective enforcement of drug laws,” Hamby wrote. “Moreover, the provision for courts to order the payment of attorney fees and costs for certain claimants is a significant advancement in ensuring access to justice for all.”

Associations representing police and Kansas municipalities opposed the bill, citing the provision requiring law enforcement to pay legal fees.

The City of Overland Park, in unsigned written testimony, argued existing laws sufficiently protected due process rights.

“Placing additional restrictions on the forfeiture process would serve only to put these assets back into the hands of those committing criminal acts. The current forfeiture laws are laden with safeguards to ensure innocent civilian’s property is not taken from them,” the city said.

Sen. Alicia Straub, an Elinwood Republican who ultimately voted yes on the bill, said police should be permitted to seize property as needed and use it to supplement their budgets. “This bill really hinders our law enforcement from getting very dangerous drugs out of our communities,” she said.

But Kansas top law enforcement officers – state Attorney General Kris Kobach and Kansas Bureau of Investigation Director Tony Mattivi – backed the majority of the proposed changes.

The changes, Mattivi said, would allow for earlier oversight. The attorneys fees, he said in written testimony, will require agencies to “carefully evaluate the costs of these actions” knowing they will have to compensate claimants if the seizure is overturned.

However, Kobach and Mattivi each warned against policies included in the Senate bill that were left out of the House measure that would bar law enforcement from requesting federal forfeitures and allow claimants to request a jury trial. Mattivi said the federal prohibition would harm poorly staffed prosecutors offices while jury trials would slow down the process.

Sen. Kellie Warren, a Leawood Republican who chairs the Senate Judiciary Committee, said those elements were included to protect the rights of Kansans.

“If you are going to be dealing with federal court it’s a lot more expensive, it’s a lot more time consuming,” she said during the Senate debate.

Kobach was eager to work on asset forfeiture reforms because of the ways the policies could be abused and the risk that poses to constitutional rights Kobach is sworn to protect, Deputy Attorney General Dan Burrows said in written testimony.

He worried the Senate’s changes would kill those efforts.

“The bill before this committee threatens to derail that compromise and send everyone back to their corners. It would rubbish the work of the last seven years, and make it harder to achieve a durable compromise on this issue,” Burrows said. “With a durable compromise at hand it would be foolish to walk away from it.”