Why Cash Seizures Backfire On Oklahoma Police

Authored by Dan Alban and and Daryl James via RealClear Wire,

Police recruits join the force to help others and fight crime. Research confirms it. But priorities changed when sheriff’s deputies detained Eh Wah in Muskogee County, Oklahoma, and found more than $53,000 in his car.

Law enforcement training kicked in, and the purpose of the traffic stop switched from public safety to raising revenue. The deputies seized the cash and spent the next six hours interrogating Eh Wah, looking for any excuse to justify civil forfeiture, a process that allows the government to take and keep cash, cars and other assets without a criminal conviction.

Oklahoma agencies normally keep quiet about civil forfeiture, which is why the state ranks among the worst in the nation for civil forfeiture transparency. Oklahoma publishes no statewide reports, conducts no regular audits, and tracks only limited metrics.

The silence is strategic. The more people learn about civil forfeiture, the less they like it. But Oklahoma police and prosecutors have voiced opposition in recent weeks to H.R. 1525, the Fifth Amendment Integrity Restoration Act (FAIR), a bill that would reform federal civil forfeiture.

Oklahoma Bureau of Narcotics Deputy Director Brian Surber says the measure would take money from state and local agencies, making it harder to fight drug cartels and other criminal enterprises.

What happened to Eh Wah undercuts this narrative. He was not a drug lord or even a low-level dealer. He was a volunteer manager for a Christian rock band, raising money for Thai orphans and Burmese refugees. Some of the cash belonged to Eh Wah and the band members, following a monthslong tour across several states. The rest came from concert donations and belonged to the orphans and refugees.

Carrying cash is legal. The money in the car was legitimate. And none of it related to a broken taillight — the reason for the 2016 traffic stop on U.S. Route 69. Eh Wah, who neither smokes nor drinks, had nothing illegal in his vehicle. Other than driving with a burned out bulb, he did nothing wrong.

The deputies pounced anyway, putting civil forfeiture in motion.

To prevail, at least in theory, the government must link seized assets to criminal activity by a preponderance of the evidence, a low standard that means government hunches are more likely correct than not. But in the vast majority of cases, the government does not have to prove anything by any standard.

Property owners get trapped in procedural mazes and lose by default. Many people give up without ever seeing a judge. They often have no choice. Civil forfeiture includes no right to counsel, and attorney fees often outweigh the value of seized assets.

Once the process ends, participating agencies keep 100 percent of the proceeds for themselves. The result is a powerful incentive for police and prosecutors to self-fund through aggressive enforcement.

The FAIR Act would not affect Oklahoma law. But it would end “equitable sharing,” a maneuver that allows state and local agencies to transfer seized property to the federal government for civil forfeiture, and then take a cut of the proceeds when the process ends. Oklahoma agencies pocketed more than $2 million this way in 2020.

Oklahoma District 12 Attorney Matt Ballard wants to protect this revenue stream. What he fails to mention is that equitable sharing circumvents state law, which should not happen. Oklahoma agencies should follow Oklahoma law, which already makes civil forfeiture far too easy.

State and local agencies collected $6.2 million for themselves in 2020 under Oklahoma law — above and beyond equitable sharing — representing more than 75 percent of proceeds. Indeed, the civil forfeiture case against Eh Wah was brought under Oklahoma law, not through the feds.

Eh Wah fought back with free representation from our public interest law firm, the Institute for Justice, and recovered his cash. Now civil forfeiture apologists want to call his ordeal an “outlier.”

But they have no data to support that claim. And they miss an important point: Even if proceeds come entirely from criminals, which they do not, the process skews law enforcement priorities.

Agencies shift their focus from following criminals to following the money, which creates blind spots. At least one study shows that increased forfeiture revenue actually reduces crime closure rates.

Innocent property owners like Eh Wah suffer. But so do officers, who get stuck working as fundraisers rather than crimefighters. The FAIR Act would help refocus law enforcement on its true priority—protecting the public, not the bottom line.

Dan Alban is a senior attorney and co-director of the National Initiative to End Forfeiture Abuse at the Institute for Justice in Arlington, Va. Daryl James is an Institute for Justice writer.