Dear Arnold,

Here's the opening debate on the Property Forfeiture issue. Mark Shurtleff has already promised me a response.

Dave, ut_repub_report@yahoo.com

Utah Republicans Pursue Forfeiture of Your Right to Own Property

Republican Attorney General Mark Shurtleff and Senator John Valentine are pushing legislation (SB 31) to dramatically revise citizen's Initiative B. This initiative passed in November 2000 by a 69% favorable vote of the Utah electorate. It institutes a broad range of protection in the law to obstruct the confiscation of private property from innocent owners.

Support for the initiative arose from numerous well-documented cases of forfeiture abuse, both here in Utah (see http://www.xmission.com/~ajgaunt/forfeiture/afabus.pdf) and nationally. My personal concern regarding forfeiture arose in 1992 when Don Scott, an innocent man, was killed in his own home in California by what amounted to a property forfeiture death squad (see http://www.fear.org/scott15.html for a summary).

Discovery by the Ventura County District Attorney revealed that confiscation of Scott's 200 acre ranch was a motivation for the forfeiture squad's invasion of Scott's home (see http://www.fear.org/chron/scott.txt for the complete report). There was one problem: no drugs were found in Scott's home, or anywhere on his property, and neither was Scott connected to the drug trade.

Following the homicide of Don Scott, I undertook research of state and federal forfeiture codes. What I discovered was shocking. Though some variation existed between the various federal and state laws, virtually all were based on the following provisions.

• Private property could be confiscated in any amount, even though the owner was acquitted, or never charged with a crime.
• Forfeiture proceedings typically occur administratively (outside a court of law), or in a civil court where innocent owner protections were reduced or eliminated.
• Police agencies receive the forfeited property.

In consideration of these provisions in Utah's previous forfeiture law, Initiative B enacted a uniform forfeiture procedure that restores the right of innocent citizens to own property. It also prohibits gross injustice, and deters law enforcement corruption. Disturbingly, the Shurtleff/Valentine legislation (see http://www.xmission.com/~ajgaunt/forfeiture/Bill.pdf) undermines and circumvents these improvements in law brought by the initiative, as summarized in the following.

• Allows property seized by Utah police to be transferred to the federal government to eliminate the protections of the Utah Constitution and Utah law.
• Eliminates probability of legal representation for innocent property owners who are poor.
• Prevents innocent owner from using his seized property to retain legal counsel that would otherwise be unavailable.
• Prohibits hardship release of assets from legitimate businesses for legal defense.
• Allows property to be forfeited, notwithstanding the owner's acquittal on related criminal charges.

• Encourages police and prosecutors to confiscate property whose worth greatly exceeds the magnitude of the underlying criminal offense, i.e. the punishment need not fit the crime.

• Confiscated property will be given to seizing agency, instead of State Treasurer, shifting law enforcement emphasis from criminal prosecution to fundraising.
• Police agencies can fund themselves directly with federal grants leveraged from forfeiture kickbacks, reducing accountability to citizens they are charged to protect.
• Financial and criminal penalties when police break the law are eliminated.

Shurtleff and Valentine promote their legislation in contravention of the Utah Republican Party platform, which states that "We strongly oppose the forfeiture of private property from innocent owners" (see http://www.utgop.org/page8.html). Shurtleff's involvement is particularly objectionable. First, when he ran for Attorney General two years ago, his campaign materials expressed clear opposition to civil asset forfeiture (see http://www.xmission.com/~ajgaunt/forfeiture/AGS.jpg). Second, as a statewide candidate he filed a disclosure statement that affirmed his support for the entire platform. By signing the disclosure, he also agreed to be evaluated by his performance against the platform.

In defense of his actions, Shurtleff might reply that this legislation does not affect innocent owners because police and prosecutors can be trusted to use financial incentives and additional confiscation power in a just and responsible manner. But careful consideration of human nature, the previous abuses referenced, and a recent report from the State Auditor do not justify confidence in such a position.

Regarding the Auditor's report (see http://www.xmission.com/~ajgaunt/forfeiture/sa1-22-03.pdf ), it was discovered that no forfeited property has been received by the State Treasurer as Initiative B requires. Specifically, he found that

• "The remaining 28 cases [to which the initiative did apply] involved cash and property that should have been transferred to the State Treasurer for fiscal year 2002 pursuant to the UUFPA [Initiative B]."

• "During our investigation, we discovered that Ö county district attorney offices filing these cases did not comply with the UUFPA and Ö the court also violated the UUFPAÖ"

In light of the State Auditor's letter, shouldn't the Attorney General, Senator Valentine, and other Republicans focus on bringing the courts and prosecutors into compliance with Initiative B, instead of attacking innocent owner protection? If you agree, please contact your state representative and senator, Senate President Alma Mansell, House Speaker Marty Stephens, and Attorney General Mark Shurtleff. And e-mail me at ajgaunt@xmission.com for current information on this assault on your right to own property. Thank you for your attention and concern!