Washington Civil Forfeiture Law Turns Minor Drug Offenses into Major Losses
Jun Cong Pan knows he screwed up.
“I made many mistakes,” Pan said. “I did wrong things.”
In particular, he grew more cannabis than allowed by the license he says he had under the state’s old medical marijuana system. He continued growing it after the license expired. He sold it to the black market that continues to thrive outside the state’s heavily taxed legal cannabis regime. And he got caught.
On Nov. 16, 2017, Seattle police raided Pan’s Skyway home and another house that he and his wife had owned but recently signed over to her parents. According to charging documents, the police found 16 lights, other grow gear, 84 freshly cut plant stubs and two bags of “shake” trimmings in the basement of the first house, plus more than $20,000 in cash. The police found another, larger grow operation in the second house, with 57 lights and 459 plants, plus the cut plants from the first house, hidden in Hefty bags tossed into the bushes behind.
More than three years later, Pan’s criminal case is wrapped up. He got off lightly, pleading to a misdemeanor drug charge, paying a $500 fee and serving five days on a work crew. But that was just the start of his troubles.
The city of Seattle has filed a lawsuit not against Pan, but against his houses, cars, family savings and other property under an esoteric legal mechanism called civil asset forfeiture, something that he, like most Washingtonians, gave no thought to before. The city claims that a “substantial nexus” exists between his property and crime — that they were used to produce marijuana or acquired with proceeds from that crime.
“They want to take our house, our car, our money,” Pan told me last year. “I do one wrong thing, and this touches everyone in our family.”
This story is the first part in a Crosscut series examining civil asset forfeiture in Washington state.
Asset forfeiture is increasingly employed as an adjunct or, in some cases, alternative to criminal prosecution, especially in drug cases. It enables police departments in all but a few states to seize, keep and sell property — from guns, cash, cars and homes to lawn mowers and fishing lures — connected to a crime.
Washington’s forfeiture laws, among the most lax and opaque in the nation, grant police wide latitude in seizures with minimal oversight. Cities and counties in the state increasingly rely on forfeiture to underwrite policing, taking in $11.8 million statewide in 2019 and $11.9 million in 2020, more than in any other year since 2005.
Forfeiture actions rarely end up before a judge. If they do, police need only prove that it’s more likely than not that the seized property was connected to a crime, a much lower bar than the “beyond a reasonable doubt” standard required for a criminal conviction.
Critics of the practice argue that forfeiture is at best a distraction from public safety and at worst a scam, a threat to civil rights and an open invitation to “policing for profit.”
‘Racist as hell’
In Washington, money raised and vehicles acquired through forfeiture are supposed to support not merely the police, but a specific type of policing. Washington law directs that all forfeited property and proceeds, minus a 10% cut for the state Treasurer’s Office, be used “exclusively for the expansion and improvement of controlled substances-related law enforcement activity” — in other words, for the war on drugs.
Elsewhere in the country, forfeiture actions have created notorious causes célèbres. In a Philadelphia suburb, police seized a couple’s house and evicted them after their son was arrested for selling $40 worth of heroin from the front porch. Detroit police have for decades trolled certain neighborhoods, seizing cars with no questions asked and letting the drivers go uncharged.
Police in many states have disproportionately targeted Black property owners for forfeiture, says Wesley Hottot, a litigator with the Institute for Justice, a libertarian public-interest law firm. There are indications that Chinese and other Asian Americans are especially affected by forfeitures in Western Washington.
“Instead of doing this in wealthier communities around Detroit, where people will get lawyers, they do this in the inner city,” says Hottot, whose law firm sued to stop seizures there. “That tends to affect people in heavily policed communities and people of color.”
In 2019, 70% of the owners of property forfeited by the Kent-based Valley Narcotics Enforcement Team had Chinese, Vietnamese or Latino surnames. Douglas Hiatt, a Seattle defense attorney who has represented Pan and many other drug and forfeiture defendants, says civil forfeitures in Washington often target immigrants, especially Chinese immigrants: “The thinking is, ‘As long as it doesn’t happen to a bunch of white people, we can do anything.’”
As in Pan’s case, police investigations of marijuana grow ops often follow complaints from neighbors. Hiatt contends those complaints are often “based in racist assumptions,” reflecting the political tenor of the times.
“People rat out their Asian neighbors,” Hiatt says. “I’ve heard one detective talk about people who are concerned about their property values going down when Chinese people move in,” calling to accuse them of growing pot.
Announcing marijuana-related charges against 11 Seattle-area residents with Chinese names in October, Brian Moran, the U.S. attorney in Seattle at the time, deplored these alleged growers for “damaging neighborhoods and competing unfairly with honest buyers who are just trying to afford their first home.” Moran said his office would seize houses and other property owned by the suspected marijuana growers. King County Sheriff Mitzi Johanknecht chimed in: “This type of organized crime has a negative impact on the safety and the quality of life in our local neighborhoods. It cannot be tolerated.”
A report in Aberdeen’s Daily World, which cites only official sources, describes a massive operation by the Grays Harbor Drug Task Force against local pot growers. It was code-named “Green Jade,” as a crackdown on “Chinese-run” marijuana grows — not illegal growing per se, a longtime practice in southwest Washington. Of 147 forfeitures completed by the task force in 2019, 128 targeted property owners with Chinese names. Hiatt calls such outcomes “racist as hell.” He says he’s seen a rash of forfeitures against Chinese owners since marijuana legalization.
Law enforcement officials contend these forfeitures are essential for combating what King County Deputy Prosecutor Gary Ernsdorff calls “large criminal enterprises,” in particular those “that have sprung up growing and shipping marijuana out of state.” Forfeitures, he explains, “strip out ill-gotten gain” while interrupting profitable illegal activities.
“Law enforcement agencies feel like this is an important tool,” says Candice Bock, legislative affairs director of the Association of Washington Cities, which has opposed efforts to change this state’s forfeiture laws. “It can be a deterrent.”
But Pan could hardly be deterred by a penalty he didn’t know about.
An easy way to make money
Jun Cong Pan arrived from China with his parents in 2002, when he was still a teenager. He chafed at sitting in English classes with young children, so instead went to work in a restaurant, starting as a busboy and moving up to waiter. Fascinated with stonework, he got a job cutting marble countertops, learned more construction skills, and branched out into remodeling houses. In 2007, married and with one child, he seemed to be living the American dream. He bought a house in Skyway, just outside the Seattle city limits.
Pan, his wife and their young child had been sharing a cramped apartment with his parents and sister. He used his parents’ credit to buy the house and borrowed the down payment from a building contractor.
Then, about nine years ago, a construction accident halted Pan’s climb up the ladder to a middle-class life. He cut a tendon in his right hand, where an angry red patch still shows, and literally lost his grip. Anxious, depressed and unable to work, he ran up debts at local casinos and nearly broke up his family.
Then salvation seemed to beckon. “A friend told me growing marijuana was a good way to make money,” he said.
Pan’s slide into the marijuana business was hardly unusual. The promise of steady, substantial income draws many who are struggling to make ends meet into greener indoor pastures.
“Growing marijuana is a much easier job than washing dishes – you work three hours and make as much as 10 in a restaurant,” Assunta Ng, the publisher of the Seattle Chinese Post and Northwest Asian Weekly told me in February 2020. “A lot of people think it’s easy money.” In those pre-pandemic days, Ng said, so many workers were throwing in their dish towels to tend pot plants that restaurateurs struggled to find and keep workers.
Experienced marijuana operators are eager to hire novices to do the dirty work, or, as in Pan’s case, to set them up with grow ops. Rookie growers know they’re operating outside the state rules but often figure it’s like running any unlicensed business or not reporting tips to the Internal Revenue Service – illegal but commonplace and rarely subjected to enforcement.
Pan said his friend told him how to get a medical-marijuana license, which allowed him to grow 15 plants, more if he supplied a patients co-op. He introduced Pan to others who would buy what he grew — commercial middlemen rather than certified patients. They built a grow operation in his basement, with lights, fans, air filters and security cameras. To power all that gear, they tapped into his electrical service above the meter to avoid the bills and hide the spike in usage. He told police he started growing marijuana there in 2014 and at his second house in 2016.
“I was thinking, ‘Marijuana is everywhere. It’s legal. It’s not a problem,’ ” Pan recounted.
If he really did think that at the start, by November 2017 he knew better. In May 2017, according to charging documents, a Seattle police detective received word from Seattle City Light that power was being diverted at one of Pan’s houses. She checked the house, smelled marijuana and that October obtained a warrant to place GPS trackers under Pan’s car and family van.
Three weeks later Pan spotted one tracker, looked and found the other, and removed both. Figuring that the police would come soon, he harvested the plants in his basement and hid them in the bushes behind his other house. The day he found the trackers, his wife, Xin Qiang, withdrew $20,000 from her bank account — apparently the money police found at their home.
City Light immediately cut off power to both houses. The utility turned power back on at one house a month-and-a-half later, after Pan agreed to pay off the $35,000 worth of electricity it estimates was diverted there. City Light is still trying to collect $82,000 for power diverted at Pan’s home. Hiatt argued that demand is drastically inflated and is trying to get it reduced.
No presumption of innocence
Meanwhile, prosecutors continue trying to take ownership of Pan’s houses and other assets. His case is unusual in one way: He has fought the forfeitures in court.
Hiatt and other attorneys say that property owners who hire attorneys and contest forfeitures usually succeed in retrieving their property, but that most don’t bother or get flummoxed by the state’s arcane forfeiture procedures and can’t afford the attorney needed to navigate them.
Because forfeitures are civil actions, they carry no presumption of innocence; owners must disprove the authorities’ claims. And they must pay their own legal costs, with no reimbursement even if they win and overturn the forfeiture.
As Hiatt sees it, double jeopardy is built into Washington’s forfeiture statutes. The statutory deadlines for an owner to contest a forfeiture and the government to charge a crime toll at the same time. As a result, he explained, “anything you say contesting a forfeiture can be used against you in a criminal trial.” So a nerve-wracking game of cat-and-mouse ensues, as each party waits to see if the other will file — while money and other assets remain tied up in police custody.
It doesn’t cut the other way. Even if defendants are acquitted at trial, the authorities may still be able to keep seized property, since forfeitures fall under a lower standard of proof.
Three-and-a-half years after the police came calling and long after he served his sentence for a relatively minor crime, Jun Cong Pan is still a prisoner of uncertainty. Financial ruin looms as he fights to keep his family’s home and other property.
“If you rob a bank the government will punish you, but they won’t take your house away,” Pan says. “I didn’t rob a bank. I didn’t commit any violence. But the government wants to punish me permanently. I can turn my life around, but this government is not giving me the chance.”
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.