BY GAIL OBER, LACONIA DAILY SUN
For Laconia and Gilford police, civil forfeitures are a great way to get equipment they couldn't otherwise afford to combat the rise in opioid and other drug activity.
For criminal attorney Mark Sisti of Gilmanton, civil forfeitures are the "dark underbelly of the criminal justice system."
And for New Hampshire state Rep. Mike Sylvia (R-Belmont), his distaste for the state civil forfeiture laws that allow the Attorney General's office and local law enforcement to stash away money from potentially innocent people without proof of guilt has led him to be one of the co-sponsors of House Bill 636-FN, a bipartisan bill that seeks to rein in the ability by state and local police to take people's money and other property and keep it.
A drug-related civil forfeiture is when either the federal or state government seizes assets belonging to people who are usually arrested for a variety of drug offenses. As it stands now, the burden of proof lies with the person who lost his or her property to prove it didn't come from illegal activity, regardless of whether or not the person is found guilty.
Civil forfeitures can be filed before a person is indicted or in some cases even charged with a crime. Should the person be innocent, it's his or her battle to get their money or stuff back.
In New Hampshire, the money is redistributed three ways: 45 percent goes to the police agencies that participated in the arrests; 45 percent goes into the the drug forfeiture fund, which supports the Attorney General's Drug Task Force; and 10 percent is deposited with the state Department of Health and Human Services to be used for treatment programs.
HB636-FN seeks to limit forfeitures to people who have been convicted of the underlying crime, will require the money or assets sold at auction to be deposited into the state's general fund; repeals the drug forfeiture fund; and directs the Attorney General to include in the Department of Justice Budget money for state and county drug enforcement actions. It also establishes a non-lapsing fund for the Department of Health and Human Services for drug abuse treatment, education and prevention.
"Placing such funds into the state's general fund is counter-intuitive to this process," said Gilford Police Chief Anthony Bean Burpee. Agreeing with him is Laconia Police Chief Chris Adams, who said that while the money small communities like Laconia and Gilford get is minimal, it can allow for some specific purchases for drug-related equipment that the departments would not be able to afford otherwise.
In Gilford, the selectmen specifically authorize the expenditure of those funds. As of June 2015, there was a $41,522.14 balance in their civil forfeiture fund. Since then, the police department has purchased a hand-held Thermo Scientific TruNarc unit that allows for officers in the field to conduct tests in order to identify illicit drugs; and a CyanoSafe filtered fuming chamber, which is an environmentally safe sealed chamber for the processing of fingerprints. Both can be used in identifying illicit drugs and those who have touched them.
In Laconia, the City Council initially tried to vest the city manager with the authority to spend up to $10,000 out of its forfeiture fund, but changed its policy after former Mayor Tom Tardif filed a civil lawsuit to prevent this practice. To date this year, the council has authorized the police to buy some surveillance cameras with $8,000 of this money and to spend $9,891 on as yet unnamed police equipment.
According to the Institute for Justice, a nonprofit public interest law firm based in Arlington, Virginia, New Hampshire gets a D- when it comes to civil forfeiture. The institute cites a low bar to forfeit and that the law requires no conviction to forfeit. Its members contend that there are poor protections for third-party property owners and that 90 percent of the money goes to law enforcement.
The institute notes that, through Right To Know Requests, it determined that people forfeited an average of $82,000 per fiscal year, that totaled $1.151 million between 1999 and 2013.
In Belknap County in 2015, Superior Court records show seven claims made by the state Attorney General's Office for civil forfeiture. Of those eight, three of the cases were dropped by the prosecution and didn't challenge the forfeiture. One woman and her boyfriend lost $2,006 and a second man lost $1,560. A third man was able to buy his 2002 Audi back from the state for $902.
One man was found guilty. Of the remaining four cases in Belknap County, three of them are still in the trial phase and one was moved to Merrimack County Superior Court for consolidation with cases pending there. The total amount in question is a total of $9,812.
Advocates of HB636-FN include Gilles Bissonette, the lead attorney for the New Hampshire Chapter of the American Civil Liberties Union.
To him, the bill provides robust due process protections by requiring a conviction before seizing assets.
The bill also protects innocent owners, he said. As an example, a parent lets a child use a car for his or her personal use. The child is charged with some kind of drug charge and the car is seized by the government. This bill, if passed, would protect the owners of that car from having it taken by the government for actions about which they knew nothing.
Bissonette also says the passage of HB636-FN would ensure that police departments don't profit from state civil forfeitures.
While there is no evidence of this taking place in the immediate local area, many supporters of the bill say policing for profit is a problem with some agencies.
Rep. Paul Burch, D-Keene said some departments change the way the police handle drug activity because of the money that can be taken. As an example, he said one could imagine that a police department has knowledge that a local drug dealer has $10,000 worth of some kind of drug and is packaging it for resale. He said the police have two options: they can arrest that person then and there or they can wait until he or she sells the drugs, then arrest them when they return with the money.
He said ideally, police should arrest the person and remove the drugs from the streets, but the way the law is written, it can allow for some policing for profit by waiting.
Adams said Wednesday that he is totally against the above kind of policing for profit and says he believes the local departments he works with have the same attitude.
"But I'm not so naive as to think this doesn't happen in some places," he said.
HB 636-FN, as amended, has passed the House by a wide majority and is now being considered by the Senate Judiciary Committee, which held a hearing on the measure last week.
Gov. Maggie Hassan has threatened to veto the bill should it pass both branches of the state legislature and come to her desk, meaning it would take a 2/3 majority in both the House and the Senate to pass into law.
"Our dedicated and brave law enforcement officers are working every day to combat the heroin and opioid crisis and save lives, and the resources from the Asset Forfeiture Program are critical to their efforts to keep our communities safe," said Hassan on March 28. "I am grateful that the federal government has reinstated this important program that helps local and state law enforcement seize illicit drugs and arrest drug dealers, and I will continue working with members from both parties to ensure that we are supporting those on the front lines of this crisis, including opposing efforts to change the state's drug forfeiture statute."
This is an example of drugs seized by New Hampshire State Police. Under civil forfeiture law, seized property, including a car like this one, may be sold and the proceeds given to law enforcement, often before any finding of guilt. (Courtesy New Hampshire State Police)
Northfield police seized this money and drug paraphernalia during an arrest about three weeks ago. (Courtesy of Northfield Police)