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100% of Oregon Asset Forfeitures were Drug Related in 2021

Asset forfeiture is the legal mechanism whereby law enforcement can seize and acquire property used either in the commission of unlawful activity (an instrumentality) or constitutes the profits of illegal activity (proceeds). Readers of this blog are aware of the growing use of asset forfeiture proceedings by Oregon law enforcement against cannabis growers, both licensed and unlicensed.

In researching the issue, we came across an Oregon Criminal Justice Commission (CJC) report that found in 2021 “100 percent of all seizures were drug related” in Oregon. Receipts generated from these forfeitures totaled $1,494,288.16, with nearly half of those proceeds ($664,865.33) going to law enforcement. This blog post will examine how the state currently spends its forfeiture proceeds, and how Oregon’s forfeiture statute fails to protect citizen’s property rights and Due Process protections.

Where Does Forfeiture Money Go?

Once property is forfeited to the state, the government agency who brought the forfeiture is first reimbursed for their costs and attorney fees in bringing the action. After the seizing agency recoups its costs, approximately half of the remaining proceeds go to social programs such as the Early Learning Division Fund and Scholarship for Children of Slain Officers, and the other half is awarded to the agency that brought the forfeiture proceeding. (ORS 131A.360). The percentage allocation forfeiting agencies receive varies slightly depending on whether the forfeiture is civil or criminal and whether the agency bringing the action is state or local.

While Oregon Ballot Measure 3, otherwise known as the Oregon Property Protection Act of 2000, includes in its statement of principles that forfeiture proceeds should go toward drug treatment programs, (See Or. Const Art. VX, Sec. 10), Oregon statute currently allows for most of the state’s forfeiture proceeds to fund drug enforcement operations and district attorney offices. (ORS 131A.360(6)). This creates a cycle where local government agencies are economically motivated to bring forfeiture proceedings in drug-related cases to recover forfeiture funds, which they can then spend on more drug investigations.

Property Seizure – A low bar to confiscate with little recourse to challenge

To understand the shortfalls of Oregon’s civil forfeiture statute, it is essential to understand the difference between seizure of property and forfeiture. A seizure is analogous to an arrest of property, and forfeiture is basically a conviction that transfers title of the property to the government.

Government agencies can seize property through a formal court order, or without a court order by a police officer based solely on probable cause. The main safeguard an owner possesses against wrongful property seizures is the right to file an application for a “show cause” hearing, in which hearing the government is required to demonstrate its basis for probable cause in seizing property. The problem is under Oregon statute (ORS 131A.100) claimants only have 15 days after the date of the notice of forfeiture to file an application for a show cause hearing. Most potential claimants lack the knowledge to navigate the application process, and it often takes longer than 15 days to hire and retain an attorney to file one on someone’s behalf. Accordingly, show cause hearings rarely occur, thereby allowing forfeiture proceedings to commence even when there is little evidence to support the initial seizure.

Seizure through court order can occur ex parte, meaning that the party whose property is seized has no opportunity contest entrance of the order and is of unaware of the existence of the court order for several months. This can lead to situations where, for instance, a person’s private bank account is seized but the individual is unaware until they try to make a transaction and find their account frozen.

Forfeiture – Requires a conviction of someone and final adjudication can be indefinite

Once property is seized, Oregon statute provides that the seizing agency has 30 days to decide whether to commence formal forfeiture proceedings in court. (ORS 131A.105). If the government moves forward with a forfeiture proceeding, persons with an interest in the property must file a claim within 21 days after they receive service of a forfeiture notice. (ORS 131A.165). If claims are filed, the state must file a forfeiture complaint in the Circuit Court where the property is located. (ORS 131A.225(4)). The requirements of a forfeiture complaint are minimal, and the government need only allege probable cause without providing ultimate facts that support their allegation of probable cause. (Id.).

Under Article XV, section 10 of the Oregon constitution, forfeiture requires the conviction of a person, but not necessarily a conviction of the person whose property is seized. Under ORS 131A.255(2), forfeiture can occur even when a claimant is not convicted if:

1. Another person has been convicted of a crime that constitutes prohibited conduct;
2. The property is an instrumentality or proceed of the related prohibited conduct; and
3. The claimant:
   1. Took the property with the intent to defeat forfeiture of the property;
   2. Knew or should have known that the property was proceeds of prohibited conduct; or
   3. Acquiesced in the prohibited conduct.

The above elements are a re-framing of the classic innocent owner defense, where an owner of property contests that they were unaware of the property’s connection to criminal activity or took all reasonable steps to stop the use of their property for unlawful purposes. Contrary to federal law, where the innocent owner is an affirmative defense, meaning that the claimant bears the burden of proving a negative, Oregon law places the burden on the government to prove that the claimant is not an innocent owner. However, the law does not require the government to allege ultimate facts that support a conclusion that the owner is not innocent.

Another recurring issue with forfeiture proceedings is that they are often ordered “stayed” by the court pending final adjudication of a related criminal case. Stays often arise when the government asserts that going forward with civil discovery can expose evidence that may impede an ongoing criminal investigation or prosecution. Criminal cases can take years to reach final resolution, tying up private property for years, even in the case of a meritorious innocent owner claim.

Conclusion

Legalization of marijuana and decriminalization of harder drugs in Oregon has seemingly failed to stop police from using drug enforcement to seize private property and further impoverish low income and minority communities.

Our firm regularly handles asset forfeiture matters and has fought for our clients’ property in both state and federal proceedings. Already we are seeing many forfeiture proceedings against innocent owner landlords in the hemp industry, and we may soon see forfeiture used against licensed marijuana businesses and their landlords, regardless of compliance with state regulations.