Swipe and seize: Oklahoma gives cops new tool to make civil forfeiture easier

Eric Boehm
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Posted: Jun 09, 2016 9:05 AM
Swipe and seize: Oklahoma gives cops new tool to make civil forfeiture easier

In April, the Internet was lit up by the story of Eh Wah, a young man who was put through the wringer by police in Muskogee County, Oklahoma.

Wa, who had been traveling with a Burmese Christian rock band when he was pulled over on U.S. Route 69 for having a damaged taillight, was detained by police for several hours. The police seized $53,000 in cash – money raised by his band for an orphanage – found in his car, even though Wa was never charged with a crime and never even given a citation for the burned-out taillight.

It took  more than year for Wa’s story to come to the public’s attention, but when it did, the backlash was swift. Within hours of the Washington Post publishing the story of how cops had fleeced Wa out of his money, the police department agreed to return the cash, in an obvious make-the-story-go-away maneuver.

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ELECTRONIC ASSET FORFEITURE: Oklahoma is giving police “a new tool” to allow troopers to scan credit cards, debit cards or gift cards, making it even easier for cops to abuse civil assets forfeiture laws.

The problem is, Wa’s experience was hardly unique.  Oklahoma’s rules for civil forfeiture, the process by which police can seize cash, cars, property and other valuables without charging anyone with a crime, as long as they have a reason to believe the seized goods were the proceeds of a drug deal or other crime, are some of the worst and most abused in the nation.

And now the Oklahoma Department of Public Safety wants to make it even easier for police officers to seize your stuff, even when you’re not carrying any cash.

Oklahoma City TV station KOKH reports that “a new tool” will allow troopers to “scan credit cards, debit cards or gift cards and freeze them,” supposedly as a way to fight identity theft.

But KOKH says the state DPS admits the new devices will “also help with civil assets forfeiture.”

As if the police in Oklahoma need any help with that. Oklahoma’s laws and practices with regard to civil asset forfeiture make it one of the worst abusers in the nation, according to a recent report from the Institute for Justice, a libertarian law firm that represented Wa in his lawsuit and has challenged forfeiture proceedings in other states.

“It seems like a terrible idea,” Matt Miller, an attorney with the Institute for Justice, told Watchdog on Wednesday. He said the use of the card readers might raise Fourth Amendment concerns and he worries that they could quickly proliferate to other states.

A video produced by the Department of Homeland Security demonstrates how the card readers are used, and why police departments across the country might soon be using them.

“Prepaid cards are now the currency of the criminals,” says T. Jack Williams, president of the Electronic Recovery and Access to Data Group within DHS.  “Rather than moving large amounts of cash in suitcases, they’re able to put money on a prepaid card, or a number of prepaid cards.”

The card reader technology is now available for law enforcement use, according to DHS.

Miller worries that this technology could be used to target people who haven’t broken any laws.

Some employers now use gift cards as a way of paying contractors or employees, rather than going through traditional bank accounts. Anyone who gets paid like that could risk losing, in effect, their entire bank accounts if they are pulled over for speeding.

“There’s no warrant, maybe they have probable cause, maybe they don’t, but once the account is drained, then the property owner has to hire a lawyer and go to court to get their money back,” Miller said.

It’s probably not a surprise that the card-readers are being used by police in Oklahoma, given the state’s long history of abusive civil forfeiture.

Over a five-year period, from 2009 through 2014, law enforcement officials in 12 Oklahoma counties seized more than $6 million in cash, almost $4 million of which was taken without any criminal charges, according to an investigation carried out by the Oklahoma ACLU.

In 2012, the Goss family was arrested in their home as part of a drug raid and held in jail for three days before police realized they had the wrong address. By the time they realized they had made a mistake, police had already seized the family’s boat and truck. Even though they were released from jail, the family did not get all their property back – property that was seized because of a mistake the police made.  The Gosses eventually recovered their boat after a lengthy and expensive legal process, but could not afford impound fees on the truck and ultimately lost it.

According to a New Yorker piece from 2013, police in Tulsa have been known to drive around town in a Cadillac Escalade stenciled with the words “THIS USED TO BE A DRUG DEALER’S CAR, NOW IT’S OURS!” painted on the side.

An assistant district attorney in Oklahoma was caught using money seized from civil forfeiture to pay off student loans.  Another assistant DA lived for five years, rent-free, in a house seized through civil forfeiture proceedings.

State Sen. Kyle Loveless, R-Oklahoma City, championed reforms to the state’s civil forfeiture program last year. His proposal would have required a conviction before assets could be seized – a change other states have recently implemented – and would have directed forfeiture funds to drug treatment programs rather than allowing police and prosecutors to use sell assets to pad their own departmental budgets.

His bill, no surprise, faced opposition from the law enforcement community and never reached the Senate floor. The state legislature  passed a much less ambitious set of reforms that allow victims of forfeiture to recover legal fees if they are successful in court. That bill was signed into law by Republican Gov. Mary Fallin in April.

Given all that history, it’s no wonder Loveless says the card scanners are “very scary.”

“They think that they have reasonable doubt, they’re going to check your bank account and then they’re going to drain the bank account,” he told KOKH.