By: Attorney Marcus J. Berghahn
Phone: (608) 257-0945
Email: mberghahn@hbslawfirm.com

On April 3, 2018, Governor Walker signed 2017 Wisconsin Act 211, a bill that changes the rules the State has to follow when it seeks to forfeit property after it has been seized in relation to a crime. The Act significantly changes Wis. Stat. § 961.55, which permits law enforcement agencies to seize and later forfeit property, in some cases for their own benefit. The Act now protects citizens whose property is seized, but who are not prosecuted or whose criminal case is dismissed, and requires that the fruits of the forfeiture be turned into the school fund, and not the law enforcement agency that seized the property.

Under current law, law enforcement could seize property involved in the commission of a crime or seized in relation to a criminal investigation through a forfeiture proceeding (a separate civil suit). Usually this occurred during an investigation into crimes involving controlled substances. The forfeiture law applies to all property directly or indirectly derived from or used for the commission of a crime.

Under current law, forfeiture proceedings could proceed prior to an actual conviction in a criminal case, and any seized property will be held by the law enforcement agency until the case is finished.

Under current law, after a court orders that property be forfeited, an agency could keep certain property for its own use, transfer the property to another agency, or sell the property. The law enforcement agency that seized the property could retain a set percentage of the proceeds of selling the property to cover administrative and other costs, and the remainder was deposited into the state school fund. In addition, current law allows local law enforcement agencies to enter into agreements with federal authorities wherein property that is seized in relation to a federal crime is turned over to the federal authorities for forfeiture under federal law. Proceeds from selling the property are then shared between the federal authorities and local law enforcement agencies.

2017 Wisconsin Act 211 allows property to be subject to forfeiture only after a person has been convicted of the crime related to the forfeiture action and only if a court finds that the property seized is proportional to the crime committed. The Act does not affect property that is unlawful to possess, such as controlled substances.

The biggest change to the forfeiture law is that if the owner of the property is acquitted or the charges against the owner are dropped, the court must order that his or her property be returned within 30 days. The bill requires seized property to be returned to innocent owners of the property unless the owners were involved with or knowledgeable about the crime related to his or her property.

Further, the Act allows the court, upon petition by a person whose property was seized but not yet forfeited, to return the property to the person under certain circumstances. Under the bill, the person may not sell, give away, or burden the property and, if the person is found to have committed the crime related to the property, must surrender the property for forfeiture after conviction. The Act also allows a person who prevails in a forfeiture action to recover reasonable attorney fees from the state.

The Act requires that all proceeds from the sale of all forfeited property be turned in to the state school fund. It also prohibits local law enforcement agencies from transferring property to federal agencies for forfeiture under federal law unless the value of the property exceeds $50,000 or the property can be forfeited only under federal law.

“Forfeiture laws pose one of the greatest threats to property rights in the nation today. They encourage law enforcement to favor the pursuit of property over the pursuit of justice.” Dick Carpenter II, Ph.D., et al. Policing for Profit: The Abuse of Civil Asset Forfeiture (2d ed), INSTITUTE FOR JUSTICE (available at http://ij.org/report/policing-for-profit/) ). Citizens are right to be vigilant when it comes to action by government without criminal due process protections. Abuses of forfeiture proceedings have been well-documented. 2017 Wisconsin Act 211 restores balance between the power of the State and the rights of its citizens.