Were bad cops to blame? Or was its concept flawed? Lawmakers hope to find out
By David Hanners
dhanners@pioneerpress.com
Updated: 08/26/2009
When a state report said members of the Metro Gang Strike Force seized money and property from people never accused of a crime — and then took the property for personal use — it struck a familiar chord with law professor Joseph Daly.
It is a chord 233 years old.
"One of the reasons we fought a bloody war against Britain was we didn't like these soldiers stopping people on the street willy-nilly," said Daly, who teaches at Hamline University's School of Law. "We went to armed revolution against the strongest nation in the world in order to have these protections against unreasonable searches and seizures. They're not technicalities. They're real.
"It's the idea of not allowing the police to be cops and/or robbers," he said. "They have to be cops. They can't become robbers."
Indeed, the ability to seize a person's private property is among the most awesome powers a government can wield. The authors of the Constitution cemented that notion in the Bill of Rights, decreeing in the Fourth Amendment that our right against unreasonable search and seizure "shall not be violated."
This afternoon, a joint legislative panel will convene at the Capitol to review a pair of reports that say some officers of the now-defunct Metro Gang Strike Force committed behavior that was "shocking" and listed a litany of abuses.
It also listed some valuable property that it appeared task force officers took from people in cases that resulted in no criminal charges,
and it said that some of the officers took the property home for personal use or sold it to friends and relatives.
"The panel was struck by the number of large-screen and flat-screen televisions, along with electronics and computer equipment, that officers seized in case after case," said the report, written by former federal prosecutor Andrew Luger and retired FBI agent John Egelhof.
SURVIVAL THROUGH SEIZURES
One issue legislators must wrestle with is fundamental: Was the gang task force a good idea badly executed by dishonest cops and supervisors who looked the other way, or was the whole concept — including the state's administrative forfeiture law — fatally flawed?
"One of the reasons we're having the hearing ... is to start that discussion," said Rep. Michael Paymar, DFL-St. Paul, chairman of the House's Public Safety Finance Division. "It's clear to me that this whole operation, for years, has lost its mission and was completely off course.
"If we're going to ever do this again, even if it is a different model, we're going to make sure our statutes are tight and whatever multi-jurisdictional model we create, we make sure it has the proper oversight."
Lawmakers will study the issues as the FBI investigates the task force's activities. When he spoke to reporters last week, Luger, a former assistant U.S. attorney, called the behavior of some officers "criminal."
"It's going to be for the FBI and the United States attorney's office to determine, but if you take something home that doesn't belong to you and you know it doesn't belong to you, that's a crime."
Ron Ryan, who commanded the Metro Gang Strike Force for much of its life until he retired late last year, declined to comment.
"When it's done, I promise you I will talk to you, but not now," he said without elaborating.
The Luger report said the review panel was struck by the contrast between "the hard and thorough work of some strike force officers on gang-related cases and the unfocused, and sometimes unethical and highly questionable conduct of others engaged in ... stops and searches unrelated to gang activity."
The report sticks part of the blame with the way the strike force was funded. The unit's predecessor, the Minnesota Gang Strike Force, operated for many years with state and local funding. But in a 2003 budget-cutting move, the Legislature slashed the unit's funding.
By the time lawmakers re-created the elite unit as the Metro Gang Strike Force in 2005, it had become largely self-funding, through seizures and forfeitures. The more money and property the cops from the unit's member agencies seized, the more fiscally sound the unit was.
Not only did it put the profit motive in police work, the cops came to look at seizures as the key to the unit's survival, the Luger report said.
HOW FORFEITURE WORKS AND IS ABUSED
It isn't unusual for police to seize property and seek forfeiture of items taken when they arrest people for crimes. But the strike force members were also using a state statute whose origins date to the late 1980s war on drugs, a civil statute that goes by the unwieldy title, "Administrative Forfeiture of Certain Property Seized in Connection with a Controlled Substances Seizure."
In simple terms, cops could seize all money, guns, cars, precious metals and precious stones found in proximity to drugs, drug manufacturing or distribution operations. And the property can be seized without drug- or gang-related charges filed against the owner.
Because it is a civil statute, it turns the concept of presumption of innocence on end. Instead of prosecutors having to prove that you came by the property through some illegal activity — for example, you bought it with proceeds from a drug business — you must prove that you acquired the property through legal means.
The law also has provisions dealing with the seized property. First, the property owner must be notified that he has a right to try to get the property back through "judicial determination." If the owner doesn't file a claim within 60 days of the seizure, the property is considered unclaimed and is forfeited.
Seventy percent of the proceeds from the sale of the forfeited property are to go to the agency that seized it, 20 percent goes to the county attorney who handled the forfeiture and the rest goes to the state's general fund.
"In many cases involving unclaimed evidence, it does not appear that Strike Force officers provided the owner with notification of their right to contest the seizure and forfeiture," the Luger report noted. "It is therefore not surprising that much property went unclaimed. ..."
The abuses come as no surprise to Brenda Grantland, a Mill Valley, Calif., attorney who heads the Forfeiture Endangers American Rights (FEAR) Foundation.
"That's asking for trouble when you have that semi-autonomous, self-funding task force," she said. "This happens so often. The self-funding task force is kind of a scary thing, because who do they answer to? If they don't answer to anybody and they're allowed to fund themselves, they don't have to justify their existence by having the Legislature see if they're doing a good job."
'TOP TO BOTTOM' REVIEW PROMISED
Grantland's group has lobbied successfully for some changes to the federal civil forfeiture laws, but she said it has been harder to get states to change their laws to guard against abuse. And she claimed the abuse is built into the system.
"The way the procedures are set up, it's very hard to fight the government," she said. "If the seizure renders you indigent or the amount seized is too small to justify the cost of litigation, you lose. You can't hire an attorney to get back a $5,000 car that's depreciating in value all the time it is sitting in an impound lot. It's just not cost-effective. They get them by default because people can't afford to effectively fight them."
"I really think we will take a look at the whole forfeiture law from top to bottom," said Rep. Debra Hilstrom, DFL-Brooklyn Center, who chairs the House's Public Safety and Oversight Committee and will chair the joint legislative hearing. "This is the beginning of the discussion."
Others believe the law is an effective tool in the war against drugs, and gangs are often involved in drugs. Their concern: a law enforcement agency that seizes property needs strict supervision, strong inventorying procedures and faultless accounting of all the property that is taken.
The Luger report faulted the Metro Gang Strike Force in all those areas, saying "there is no excuse for the cavalier attitude displayed by some in the Strike Force with respect to the execution of search warrants and the treatment of seized evidence."
The amount of training officers get is in question. For example, the Minneapolis Police Department — which contributed the largest contingent of officers to the metro strike force — doesn't include formal training on seizure and forfeiture law for its officers, said department spokesman Sgt. Jesse Garcia III.
"We don't go over any of that," he said. "It would be like teaching how to fly a jet when nobody gets a chance to fly a jet. It's something that's pretty specific that even a lot of the investigators don't do offhand."
He said that if some officers are trained on those issues, it is "more of on-the-job training."
KEEPING COPS HONEST
Close supervision is key, said Christian Dobratz, an assistant professor who teaches in the law enforcement program at Minnesota State University-Mankato. Before going into academia, Dobratz was a cop for 18 years, seven of those as a supervisor, and he also served on a multi-jurisdictional drug task force.
"We had a policy and procedure manual in the task force, but each officer had one from their home agency as well," he said. "That is something that has to be set up when these task forces are put together."
Mark Erickson, a captain with the Olmsted County sheriff's office who heads the Southeast Minnesota Narcotic Gang Task Force, said his unit follows such things as seizures and requests for drug-buy money through a sophisticated computer program. The system ensures that the officer's actions are monitored by his direct supervisor at his "home" agency, as well as at the task force.
Daly, who has taught criminal law at Hamline, has worked both as an assistant Hennepin County attorney and as a defense lawyer. He said that in combating gangs, police sometimes take an attitude that anything goes.
"I can understand in some ways that attitude because of the kinds of things that these gangs do," he said. "They are violent. They get in gunfights and bullets go through buildings and kill little girls sitting at a table studying. They bring fear and destruction to a community. I can understand that the police are looking at themselves as first-line warriors against these gangs.
"But the police are not military," he said. "It's what separates a society based on the rule of law instead of just simple power based on might and strength and guns."
David Hanners can be reached at 612-338-6516.
St. Paul police chief asks FBI
whether officers implicated
St. Paul Police Chief John Harrington asked the FBI on Tuesday whether any St. Paul officers are part of the criminal inquiry into the Metro Gang Strike Force.
The inquiry came in a letter to the special agent in charge of the agency's Minneapolis office.
Sgt. Paul Schnell, St. Paul police spokesman, said Harrington is concerned about maintaining the department's integrity.
The six officers who had been assigned to the now-defunct task force have returned to work in St. Paul, and the chief thinks it's "important to know who is the focus and what the allegations include so he can make decisions about personnel," Schnell said.
— Mara H. Gottfried
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