In Washington, a ‘Black Box’ of Practices Hides Civil Forfeiture from Oversight
Beyond the billions of dollars in local money and millions more in federal assistance, police in Washington state have for decades been taking millions more through a low-profile process known as “civil asset forfeiture.”
Under Washington forfeiture laws, police can seize cash, cars, houses and just about any other kind of property connected to crime, usually drug crime. They can do this even if no charges are filed, and, if challenged, police need only prove it’s more likely than not that their claims are true. Any appeal usually goes to the police chief or another member of the department, which gets to keep 90% of any proceeds from the seizure, with the other 10% going to the state treasurer.
Civil asset forfeiture is an $11 million-a-year business for law enforcement agencies in Washington. And, while police and prosecutors call it a vital crime-fighting tool, it is a system operated without any meaningful oversight or disclosure requirements, one that critics contend is ripe for abuse.
“In many jurisdictions it’s, ‘Take the stuff first, ask questions later,’ ” says Chris Black, a Seattle attorney who often represents clients facing forfeiture. “They don’t have anywhere near enough evidence to pursue criminal prosecution, but they’re not trying to get convictions. A lot of people for a lot of different reasons just don’t challenge it.”
Black’s clients face a legal doctrine that dates back to the colonial era, when maritime law allowed port authorities to seize customs-evading ships and cargoes whose owners were out of reach. Such seizures helped provoke the American Revolution.
Civil forfeiture faded from use, then revived in the Roaring ’20s, when it proved much easier to seize bootleggers’ cash and cars than to secure convictions. It came back again in the drug war, when, beginning in the 1980s, Washington and many other states adopted their own forfeiture laws.
Critics ranging from defense lawyers and civil libertarians to Justice Clarence Thomas and the Harvard Law Review call it policing for profit, a perversion of law enforcement priorities and a form of criminal prosecution in civil guise.
Despite repeated attempts to change it, Washington law allows police agencies to keep and release only limited records of the property they seize — one reason the Institute for Justice, the leading national watchdog over civil asset forfeitures, rates Washington’s forfeiture laws among the near worst in the country. Only two states, Massachusetts and North Dakota, get worse grades. As Wesley Hottot, a Seattle-based litigator with the institute, says, “Our state remains something of a black box.”
Fishing lures, baseball caps, a dirt bike
Washington law requires merely that a police agency seizing property file quarterly reports with the state treasurer listing the types and estimated value of property seized, the owners it’s seized from and how much the agency sells it for. An agency does not have to provide any information about what crimes are alleged or whether the owners were ever charged or convicted.
A review of quarterly forfeiture reports from 15 police agencies that are particularly active in forfeiture, obtained via public disclosure requests from the state Treasurer’s Office, reveals uneven compliance with even these minimal reporting requirements — and some surprising forfeited items.
Whereas many of the agencies disclose the makes, models and years of vehicles seized, the Lewis County Sheriff’s Office is given to vagueness. Its drug-related forfeitures include what it describes merely as “a vehicle,” “car & pistol,” “three weapons,” and multiple batches of unspecified “grow equipment,” one of them worth $17,457.50.
In August 2019, Renton police seized 32-inch and 84-inch flat-screen TVs in a drug operation and converted both to their own use. In 2018, the Lakewood police reported forfeiting “168 fishing lures,” “32 pairs of pants” and “86 ball caps” in one drug raid and a Stihl chainsaw, Honda lawnmower, Yamaha dirt bike, motorcycle ramp and assorted riding gear in another. Both batches of booty were consigned to auction.
What did these items have to do with drug crime? “I don’t know for sure in this case,” Lakewood Police Lt. Chris Lawler explains via email, “but oftentimes drug dealers do not have legitimate sources of income, but are in possession of expensive items that were either traded for drugs or purchased with drug proceeds. Those items are seized and the person they were seized from has to show they were purchased legitimately.”
The lures and other items in the first raid certainly could’ve been stolen goods exchanged for the $5 rocks of cocaine the suspect was accused of selling; an officer conducting the raid says as much in his report, obtained from Lakewood via public disclosure. But the incident report for the second raid includes no explanation as to why the motorbike, lawnmower and other items were seized. Police seem to have presumed that because they were in a drug dealer’s house, they were purchased with drug money. It’s up to him or her to prove otherwise.
Some of the state’s largest police agencies don’t provide all the information required by state law. The Seattle and Spokane police departments and the Snohomish and Clark county drug task forces do not identify the owners of forfeited property, supplying case numbers instead of names and hindering oversight.
The sheriff’s offices in the state’s two largest counties share even less — much less — information about their forfeitures. The King County Sheriff’s Office reports only case numbers and the proceeds from the disposal of forfeited property — no names, no dates, no description of the property. There is no way to tell without additional investigation what deputies are seizing, from whom they’re seizing it or whether the department is receiving fair market value for seized items. Most cryptic of all are the cases that include only a case number and “0” proceeds, hence nothing for the required tithe to the Treasure’s Office.
In mid-July last year, six weeks after I asked the King County Sheriff’s Office why it did not comply with the state’s reporting requirements and whether it kept the missing information in its own records, it provided an internal spreadsheet showing that it does indeed record all the information the law requires. It just doesn’t send this to the state, as the law also requires. The department also provided this statement: “The King County Sheriff’s Office has used the same method for reporting asset forfeitures to the state for many years. We have never been notified that our quarterly filings are not in compliance” with state law.
The Pierce County Sheriff’s Office is even less forthcoming in its reporting. It merely reports proceeds from its forfeitures. It does not provide property descriptions, owners’ names, dates or even case numbers for its forfeitures, making them almost untraceable.
Pierce County Sheriff’s Office spokesman Ed Troyer (who’s since been elected sheriff) told me last summer that the department’s accountants “say we’ve never had a problem with this. We do everything the Treasurer’s Office asks. We asked them if they need anything else and they say, no, they’re good.”
It seems surprising that the state’s largest counties would overlook simple language directing them to file “a copy of the records of forfeited property.” But it’s quite plausible that they haven’t gotten any pushback for failing to do so.
‘No obligation to enforce the statute’
Jen Merchant, a Treasurer’s Office staff attorney, says the agency is “not equipped” to examine the departments’ filings. “We’re not an enforcement agency,” Merchant told me. “We don’t have an obligation to enforce the statute. I look at this as a voluntary practice on their part.”
This lack of disclosure may open doors for the sort of corruption and misappropriation that have tainted forfeitures in other states, though none has so far been exposed in Washington state. A county prosecutor in Michigan is currently accused of helping to embezzle some $600,000 from a forfeiture account for such perks as a home security system, country club catering for parties, flowers and cosmetics for “select secretaries.”
Legislation, perennially stalled in Olympia, would make law enforcement agencies disclose much more information, including the alleged crimes involved, whether the property owners were convicted and how the agencies spent the proceeds. This information would be provided to the Legislature and, via online posting, the public, breaking open the “black box.”
The scanty information available on forfeitures worries state Sen. Mike Padden, a conservative Republican from Spokane Valley. “It would be good for law enforcement to at least keep the records,” he told me last year. “More record-keeping would really help us. They say they have a wonderful program. They should show that.”
To that end, Padden and state Sen. Bob Hasegawa, a liberal Democrat from Seattle, have repeatedly co-sponsored legislation that would make police agencies report much more information about forfeitures, including the alleged crimes involved and whether the property owners were actually charged or convicted. This information would be posted online. Such disclosure “would confirm or dismiss our suspicions” that forfeiture powers are being abused, says Hasegawa.
Padden’s bill was opposed by the Washington Association of Sheriffs and Police Chiefs and the Association of Washington Cities, both powerful players in the statehouse. Lobbyists for the groups argued it would be too burdensome for police to disclose how they obtained forfeitures and how they spent the revenues gained.
“If the Legislature’s going to require that dataset, we should ask, ‘Who’s going to use it?’ ” Candice Bock, the Association of Washington Cities’ lobbyist in Olympia, told me afterwards. “Everything a city does is subject to public records requests, so let’s not have a big new reporting requirement.”
Such arguments were enough to kill forfeiture reform yet again. Padden and Hasegawa’s bill died in 2020, as so many forfeiture reform efforts had before. With COVID-19, climate, equity issues and the economy dominating the 2021 session, there was no room on the agenda to consider forfeiture reform.
But Hasegawa and state Rep. Roger Goodman, D-Kirkland, another would-be reformer and the chair of the House Law and Justice Committee, say they’ll introduce legislation next session. That legislation may be more ambitious than the past efforts to get more disclosure.
“The Indiana case has informed what we want to do,” says Goodman — referring to the battle of an Indianapolis man, Tyson Timbs, to overturn the forfeiture of his $45,000 Range Rover after he was convicted of a drug offense carrying a small penalty. In 2019, the U.S. Supreme Court ruled that a civil forfeiture can constitute a criminal penalty, and the Eighth Amendment’s prohibition of “excessive fines” extends to disproportionate forfeitures.
This decision has given heart to forfeiture critics far beyond Indiana. It will likely play in a case now before the Washington Supreme Court, in which a homeless construction worker, Steven Long, argues that the steep impound fees the city of Seattle demanded after it towed away his live-aboard truck likewise constitute an excessive fine.
Such cases may redefine and delimit the power of governments to take people’s property without convicting them of crimes. For now, however, the forfeitures continue, mostly in obscurity. The black box remains closed.
Eric Scigliano‘s reporting on social and environmental issues for The Weekly (later Seattle Weekly) won Livingston, Kennedy, American Association for the Advancement of Science, and other honors. He has also written for Harper’s, New Scientist, and many other publications.
Co-published with Crosscut.