More changes are coming to the state’s civil asset forfeiture act.  Senate Bill 458 was passed almost unanimously near the end of the legislative session and the Governor has since signed the bill into law.

Proponents of the bill would call the amendments overdue improvements to a generally broken public policy.  Law enforcement agency administrators will probably view the statutory amendments as unnecessarily making recovery of criminal proceeds even more difficult.  In some cases, probably impossible.  

Other than a few “statutory language clean up” provisions, the following are the 2024 changes effective July 1:  

1.  The list of crimes to which forfeiture applies (“covered crimes”) has been reduced. Simple possession of controlled substances will no longer be a forfeitable offense.  The controlled substance offenses that remain “covered crimes” are K.S.A. 21-5703; 21-5705; 21-5707; 21-5708(b); 21-5709(a), (b), (c), and (d); 21-5710, 21-5713(a), 21-5714 and 21-5716. 
   
   All other “covered crimes” listed in K.S.A. 60-4104 remain unchanged.  This change will probably affect the total number of small cash cases filed.  Forfeiture opponents call these smaller cases “rent money” seizures.
    

2. Protection from gross disproportionality (a small crime resulting in a large property forfeiture), always an 8th Amendment violation, has been in the Kansas forfeiture law since 1994.  The 2024 “reform” has simply highlighted the protection by reminding the court and parties in multiple statutory sections of the existing protection.  Even though the factors to be reviewed by a judge have been amended, there is little practical change other than the argument may arise earlier in the litigation.  Because constitutional case law holds that it is only upon a final forfeiture order that a court may reasonably entertain an 8th Amendment challenge, the practical effect of this change is small.
    

3. Seizing agencies will now have 14 days, down from 45, to find and employ a  forfeiture attorney to handle the seizure.  A violation of that timeline will require release of the property, but the claimant will act as a court trustee of the property and the State can still file the case.  A best practice would be to have a forfeiture attorney already identified.
    

4. Federal adoption of local and state seizures has been narrowed, but there are reasonable exceptions and agencies should still be able to obtain federal assistance in larger or complex cases.  The following are the exceptions to the federal adoption ban: seizures by joint task forces, or during a joint state-federal investigation; or when combined with a request for federal adoption of the parallel criminal case; or when a federal seizure warrant is involved; or any property involving a serious public safety concern; and, lastly, when the seized property is  valued at more than $25,000.00.
    

5. At seizure, officers may not “request, induce or otherwise coerce” a person who has asserted a right to the seized property to waive that right.  That would mean that once a person has told an officer that the seized property belongs to them, the officer may not attempt to persuade them differently.  That may be a rare occurrence, but administrators should probably review any waiver forms that their agency employs to confirm that the form does not contain such a waiver request.  By its plain language, the change does not prevent officers from asking preliminary questions about true ownership of the seized property like owner names, addresses, and associations to the seized property.
    

6. After the filing of a civil forfeiture action in court, but before any other litigation, a judge will need to review the seizing agency’s affidavit and to make a formal finding of probable cause for the seizure.  A claimant may later challenge the judge’s probable cause finding.
    

7. Should there be a parallel criminal case on file when the civil forfeiture action is brought, then there will now be an automatic stay of the forfeiture pending resolution of the parallel criminal case.  However, a judge may upon good cause lift the stay.
    

8. The State’s burden of proof has been raised from “preponderance of the evidence” to “clear and convincing” evidence.  
    

9. Known as “fee shifting,” and in addition to releasing the property, a seizing agency will now be ordered to pay to a successful claimant their attorney fees, litigation costs, post judgment interest, and any interest gained by the property during the litigation.  There is no good faith exception.  A successful claimant (with some exceptions) is a person that recovers “at least half of the aggregate value of the claimant’s interest” in the seized property.   Provided there are funds available, the payment can be made from the seizing agency’s state forfeiture fund.  If that is insufficient, then the seizing agency will be required to pay those costs from another agency fund.  Administrators should realize when evaluating future cases that in the past there have been highly-litigated federal forfeiture cases reported where the government has been ordered to pay claimants tens, and even hundreds, of thousands of dollars in attorney fees and costs. 

Bottom Line: It is recommended that administrators review their forfeiture guidelines and think through these upcoming changes in forfeiture law.  What will be difficult for the command staff will be forecasting individual cases that appear strong at seizure, only to go south at trial for a reason beyond the seizing agency’s control.  Those cases will be the expensive ones after July 1.

Colin