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Legal Learning: Forfeiture law changed

James H. Manahan, J.D.

A couple of years ago, the Two Harbors Police Department found the money to buy a video surveillance system that was installed in key areas around town. The department reported that it would be better able to keep an eye on places like the breakwater, the band shell and the skate park, where there have been incidences of vandalism. The equipment was purchased with drug forfeiture funds received by the department.

The Lake County Sheriff’s office has also benefitted from the forfeiture law. They were able to buy new pistols for the sheriff, undersheriff and 14 deputies, and to buy upgraded shotguns for the squad cars.

What most people didn’t know was that police and sheriffs in Minnesota could keep property, vehicles and cash seized in drug cases or drive-by shootings regardless of the outcome of the criminal case. If a suspect was found not guilty, they could still lose their property in civil court unless they could prove it was not involved in a crime.

Specifically, Minnesota law (like that of most states) required a person to bring a civil suit within 60 days following seizure of his or her property. As the plaintiff, he or she had the burden of proving a negative – that the property was not involved in a crime. Because of this, and the cost of litigation, more than 95 percent of people charged with a drug crime in Minnesota did not file a civil case to get back their property.

This has been profitable for law enforcement agencies. A report by the Institute for Justice found that forfeiture revenue in Minnesota grew 75 percent from 2003 to 2010, earning police almost $30 million. In 2012 alone, there were 6,851 property seizures worth a collective $6.7 million.

In one case in Massachusetts the federal government threatened civil forfeiture against a motel owner, Russ Caswell, because of 15 drug arrests at his motel. He was never charged with a crime, but the government argued that he was “facilitating” drug crimes. “Over a 14-year period I rented out rooms to almost 200,000 guests. The government only offered as evidence 15 drug arrests. Not 15,000 or 1,500 – just 15. [Bigger motels] down the road had more drug activity than my motel,” he wrote in “The Washington Times.” Eventually he won his case. For more information, go to this link:

The forfeiture law in Minnesota was famously abused by the Metro Gang Strike Force, which has now been disbanded. However, they had to pay $840,000 in settlements to victims who had their property illegally seized.

Now, the Minnesota statutes have been changed, effective for crimes committed on or after August 1, 2014. The new law requires the police to return the seized property if there is no criminal conviction. The bill faced stiff opposition from law enforcement agencies, but in March the “Star Tribune” called it an “outrage” that lawmakers were “dragging their feet on one of the big common-sense changes” to the state’s forfeiture laws. The bill was backed by the American Civil Liberties Union and the Institute for Justice. Eventually, the bill passed the state senate 55 to 5 and the state house 120 to 0. It was signed into law by Governor Mark Dayton in May.

There is one exception in the new law. A person who is not charged with a drug crime because he or she agrees to provide information regarding the criminal activity of another person can still lose their property, even without a conviction. Further, if a defendant receives a stay of adjudication or is referred to a diversion program, it is still considered a conviction for purposes of the forfeiture law.

Here in Lake County, the new law won’t cause much of a change. Both Sheriff Carey Johnson and Two Harbors Chief of Police Kevin Ruberg told me that they typically have waited for a conviction before going through with a forfeiture.

“It seems like the fairest way to treat people,” said Ruberg.


James H. Manahan is a Harvard Law School graduate and was named one of Minnesota’s Top Ten Attorneys. He now handles family law, wills, and probate in and around Lake County, and does mediation everywhere. The opinions expressed in this column are those of its author and are not to be attributed to his employer.