By most accounts, James and LaVeta Arnold were upstanding community members in Onalaska. They owned a small business and were involved in the Lewis County Sheriff’s Office Search and Rescue program and other community organizations.
James was also vice-president of Urban Medicinals, a medical marijuana dispensary with locations in Tacoma and Olympia. When authorities raided their home last year, they found 614 pot plants and more than 40 pounds of processed marijuana.
The couple also had told officers they had been selling it for about $136,000 annually.
The couple each pleaded guilty to one count of manufacturing marijuana and one count of possessing it with the intent to deliver.
The standard range sentence for the charges is zero to six months. The Arnolds served 30 days each at staggered times.
In the end, they paid a lot more than a month in jail.
In addition to the plants, police also seized 33 firearms, including hunting rifles, assault rifles and handguns and ammunition, about 30 taxidermy animal heads, a 2006 Harley Davidson motorcycle, a 2014 Ford F-350 pickup, a 1948 Ford F-150 hot rod pickup, a 1937 Chevrolet hot rod and a 1968 Chevrolet Corvette. Personal records, computers, banking information, growing equipment, some personal property and cellphones were also seized, according to court documents.
Through civil asset forfeiture law, Centralia could have made a case to keep all of what they seized from the Arnolds, and it likely would have been a good one, considering James Arnold admitted to financing multiple trips to hunt exotic game in Africa and purchasing all or part of the six vehicles with pot money.
However, the city of Centralia, which handled the asset forfeiture proceedings, settled with the couple on June 30 that in exchange for $58,000, all their firearms, and a 2006 Harley Davidson, the city would let them have everything else.
“I think we were pretty lenient,” said Lewis County Sheriff Rob Snaza.
“They were using that money to pay for car payments and house payments, and buy trips to Africa, so what was the big message if they just got (one) month and we didn't do anything else? Would that deter them as much as taking some of their things? We’re trying to deter this activity from occurring again. If you want to be involved in large scale activity we’re going to take the things you got because they’re ill gotten gains,” Snaza said
Indeed, the Arnolds were shown leniency.
Under state civil asset forfeiture law, the government could have taken much more — especially if the federal government would have been involved.
Civil asset forfeiture is a controversial legal process that allows law enforcement agencies to take personal property from people if they suspect the items are connected to crime. Law enforcement is allowed to take a person’s possessions, and it’s up to the owner to prove in a civil hearing that the belongings were not related to criminal activity. If they can’t, the items are typically sold and the police are allowed to keep the profits.
It’s a rare topic that often unites conservatives and liberals on a single front, arguing that it allows law enforcement agencies to treat the public like cash machines. The Heritage Foundation, the Cato Institute, the American Civil Liberties Union, the Institute for Justice and dozens of publications from around the country have spoken out against it.
“Forfeiture is simply a major source for individual local police for free money, it just is,” said Janet Ainsworth, the John D. Eshelman Professor of Law at Seattle University. “It’s the crack of police agencies. It’s very addictive. Once you get started. It's hard to give that free money up.”
Proponents say it is a powerful tool to combat organized crime and break down the infrastructure of the drug trade, rather than just arrest the latest person in a long line of dealers. Not only do they get to take the dealer’s cars, cash, phones or production houses, but they get to sell them and use that money to buy more and better tools or get better training in fighting illegal activity.
“There are a lot of things we wouldn’t be able to have done (without it),” said former Centralia Police Chief Bob Berg. With money raised from forfeitures, the department was able to buy new surveillance equipment and send officers to trainings all around the country among other things. “I’m not going to apologize for it. But the most important thing I’ll tell you: We never entered an investigation with the mindset of ‘How much money are we going to seize?’ That was never the philosophy.”
Whereas in the judicial system people are presumed innocent until proven guilty, asset forfeiture is a civil procedure where property is guilty until proven innocent. The charges are filed against the items, not the person.
How often it’s used is up to each individual agency.
Centralia takes in more money from asset forfeiture than any other law enforcement department in the county.
In 2014, the city brought in $123,484 from asset forfeiture. From Jan. 1, 2015 through July, it brought in $91,328.43. Since 2013, the city has seized 78 cars, only 27 of which were returned to their original owners. The figures can include items that were seized at beginning of a case from prior years, but weren’t auctioned until the case was closed. For example, items confiscated in 2012 might not have been auctioned until 2013.
“The practice is varied immensely from literally local police agency to local police agency. You can have one agency involved heavily and next door one in a very similar place where they use it almost not at all,” Ainsworth said.
It’s a statement that holds true for the Twin Cities.
In Chehalis, civil asset forfeiture has resulted in just $5,110 worth of property between 2012 and 2014. The Lewis County Sheriff’s Office brought in over $185,300 during the same time period.
That variation, Ainsworth says, is a possible reason why scholarly interest in the law ebbs and flows. The law only comes into the public conversation when egregious examples of abuse are reported by the media.
Forfeiture is not a new phenomenon; its existence as a weapon in the drug war is only its latest incarnation. Scholars have traced its origins back to mid-1600s British maritime laws that required any ships transferring goods in British ports to fly the British flag. If they didn’t, their things were to be seized and forfeited to the crown, no matter the guilt or innocence of the owner.
When the United States was founded, the first Congress created forfeiture laws modeled off those of the British. Broadly speaking, the U.S. Supreme Court upheld the earliest versions of the laws and even expanded them during the Civil War. It wasn’t regularly used until the Prohibition Era, during which time law enforcement used the laws to seize cars, cash and tools of people they suspected of being linked in the illegal booze chain.
Use of the law ebbed after legalization only to come surging back bigger than ever when the war on drugs ramped up in the 1980s.
Berg doesn’t mince words when he talks about the drug war.
“I believe the war on drugs has been an abysmal failure,” he said. “We’ve spent over a trillion dollars on the war on drugs. … I’m not ragging on the cops. … Crime is down but I don't think a measurable dent has been made in drugs.”
He said Centralia’s use of forfeiture ramped up around 2005 when the city council wanted to see more of a street-level approach to drug enforcement. Partnering with Chehalis, the two departments created the Twin Cities Anti-Crime Team.
“They’d do two knocks and pop, buying dope and getting a warrant,” Berg said. “From that developed a culture as to we will have an aggressive drug enforcement program which includes seizure and forfeiture.”
Berg said Centralia’s philosophy differed markedly from the federal government, which has a reputation of targeting people and taking their belongings knowing that they’re likely not going to get accompanying convictions.
At the federal level, forfeiture laws make it easy for the government to confiscate personal property.
An April 2014 article in The Economist quotes a study done by former Republican congressman Henry Hyde and libertarian think tank, the Cato Institute, that found 80 percent of people who had property seized by the federal government were never convicted of a crime.
Earlier this year, an agent from the Drug Enforcement Administration took $16,000 in cash from a young man who was traveling by train from Michigan to California.
Joseph Rivers and other travelers on the train said the agents started questioning people at random, then asked to search River’s bag. The agents seized the money suspecting it was drug money, but let Rivers go free.
“We don’t have to prove that the person is guilty,” Sean Waite, the agent in charge at the DEA's Albuquerque's office, told the Albuquerque Journal. “It’s that the money is presumed to be guilty.”
Washington law isn’t as grasping as other states or the federal government; in fact, it was dialed back some in 2002 and changed again in 2013 to reflect the legalization of marijuana.
“There’s been some pretty good legislation passed on the state level dealing with burden of proof and the party who has assets confiscated has to be charged with a criminal offense,” said Ainsworth.
Assets can’t be seized if a person is in possession of a misdemeanor amount of marijuana. The government can’t seize a house or any other real property unless the person has been charged with committing a class C or greater felony.
Once the state seizes property, it must notify the owners in writing within 15 days. If the owner doesn’t respond within 45 days, the property is automatically forfeited (unless it’s real estate). If the owner does contest, then the government must prove the property is related to a crime during a hearing.
“But it’s only by a preponderance of the evidence, meaning slightly more likely than not — more than 50 percent — that it is related to a criminal activity,” said Ainsworth.
Wesley Hottot from the Institute for Justice said that just brushing up with the law is enough for people to walk away from the situation rather than try to defend their possessions in court.
“A lot of people are scared at that point and don’t want to get involved,” he said.
Whatever is brought in, 10 percent of its sale value is supposed to go back to the state.
Berg and Snaza said neither ever did a forfeiture without securing a conviction. They said they took other factors into account, such as if the dealer was using an unknowing friend’s or relative’s car to make the sales.
Snaza said it has never been the goal of the sheriff’s office to capitalize off of asset forfeitures, rather to make people function as participating members of society.
He cited examples of when the department seized a man’s house because he had been selling drugs out for a long time. But because he had medical issues, the department allowed him to continue living there until he passed away and then put money toward his daughter’s college fund.
The state of Washington itself brought in just under $2.5 million in equitable sharing with the federal government in 2008, according to the Institute for Justice. Also, based on the latest data from the Institute, law enforcement agencies, Washington collected $16.1 million in 2003 alone in drug-related forfeitures.
In 2014, which included the year the man’s house and cash were confiscated, the sheriff’s office brought in $98,193.17. From the start of the year until July 2015, they brought in $35,323.28. As with Centralia, the dollar figures here include some items that were seized as part of cases in years prior, but were sold after the case was closed sometime later.
He said the department will seize a car if a person is using it to transport or regularly sell drugs, but not under all circumstances.
“Maybe it’s their only car, so what we may say is, ‘Ok, you pay impound fee and tow bill and pay a couple extra dollars into the drug fund so we don't have to go through this whole process,’” Snaza said.
However, the decision is not always altruistic. There are business issues to consider, as well — questions like how much the vehicle is worth and if it’s paid off.
“If you’re dealing a teener bag out of a Toyota Corolla but you still owe $5,000 and it’s worth $7,000, is that vehicle worth seizing? … If the Escalade is paid for and you’re dealing teener bags out of it then that’s a different question,” Snaza said.
Hottot said it is worth something that law enforcement officials show restraint when using the law, and he said he couldn't think of any instances of abuse around the state within his seven years of working for the Institute.
But, he argues, that just because the law isn’t being abused doesn’t mean the opportunity isn’t there for some less benevolent law enforcement official to take advantage of.
“The government says, ‘Yes, we have this power but we’re using it reasonably, trust us.’ That’s worth something but that doesn’t mean it’s a panacea,” he said.
Legal marijuana meant police in Washington lost a fulcrum for leveraging asset forfeiture, but Hottot said he suspects there has been a rise in equitable sharing. Equitable sharing allows the feds to adopt a local seizure case, thus avoiding the criminal charges that might otherwise be required under state law.
The sharing plan allows local cops to keep up to 80 percent of the property’s value, while the feds get what is left.
“The federal policy is much, much broader, and if federal agencies are involved the local agencies can walk away with the lion’s share,” Ainsworth said.
In 2010, the Institute for Justice has ranked every state based on how extensively state laws encouraged forfeiture, and how law enforcement behaved in response to the incentives in the law. In total 29 states, including Washington, received a D. North Dakota and Vermont received Bs. Only Maine received an A.
In November, the Institute is going to release another evaluation of the states. According to Hottot, Washington state will receive a D- according to Hottot.
“I’m almost sure it’s surrounding equitable sharing,” he said.