Lawmaker seeks to ban practice allowing Seward County, others, to seize millions from motorists

Feb. 2, 2024, 6 a.m. ·

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A Seward County deputy in a subtly marked K-9 unit monitors eastbound traffic on Interstate 80 just east of the County Road 322 overpass on May 24. (Photo by Eric Gregory/Flatwater Free Press)

A new bill in the Nebraska Legislature seeks to ban civil asset forfeiture, a controversial practice that allows the government to seize a person's property without criminal charges.

Sponsored by Sen. Tom Brewer, a Republican from Gordon, the bill follows a Flatwater Free Press investigation that showed the Seward County Sheriff's Office uses civil asset forfeiture more than any other county in the state, hauling in millions after seizing cash from motorists on a 24-mile stretch of Interstate 80.

If passed, the bill would force the legal change that legislators thought they accomplished in 2016.

"We wanted to make sure that things were being done correctly when it comes to the issue of stops and seizures," Brewer said. "We don't want to make it harder for law enforcement. What we want to do is make sure that what they do is perceived in a positive light."

Current Seward County Sheriff Mike Vance, his predecessor Joe Yocum and others in law enforcement have told the Flatwater Free Press that civil forfeiture is an important tool to take money, drugs and weapons from drug dealers. The proceeds then go to law enforcement and schools, helping save taxpayer dollars, they say.

“The best way to hurt these organizations is to take their money,” said Chief Deputy Ben Houchin of the Lancaster County Sheriff’s Department. “That slows them down even more than just getting their drugs.”

Defense attorneys and civil liberties advocates criticize it as a money grab. It's a practice, they say, that takes away individual rights and presumes guilt – the opposite of presumed innocence in criminal court. Both the Platte Institute, a free market advocacy group, and the Nebraska chapter of the American Civil Liberties Union helped craft the new bill. Sen. Danielle Conrad, a Lincoln Democrat, also signed on as a co-sponsor.

Senator Tom Brewer speaks Friday (Photo by Fred Knapp, Nebraska Public Media News)
Senator Tom Brewer speaks Friday (Photo by Fred Knapp, Nebraska Public Media News)

A June Flatwater Free Press investigation found that in the past decade, one out of every three civil forfeiture cases in Nebraska's state courts happened in Seward County. That's 90 cases in one decade on a small sliver of I-80 just west of Lincoln.

The Seward County Sheriff’s Office seized $2.3 million in 2021 alone, when state and federal civil forfeiture cases are factored in, according to a report to the state auditor. Many of those cases fall under Seward’s federal task force with Homeland Security, overseen by Blake Swicord, a fired Georgia state trooper barred from becoming a Nebraska police officer.

Brewer’s bill would eliminate civil asset forfeiture in state court and replace it with criminal forfeiture. Law enforcement and prosecutors could still seize money, but only after a criminal conviction.

"Criminal forfeiture is still there, but you have to prove it," said former Sen. Laura Ebke, now a senior fellow at the Platte Institute. "And that's as it should be. You're innocent until proven guilty."

Moving forfeitures into criminal court would ensure due process, Ebke said. Unlike in civil court, an individual would have the right to legal counsel.

"If you've got enough to grab that money, you should have enough to convict somebody of a criminal charge with the drugs," said Joe Jeanette, a former Bellevue narcotics officer who now teaches at the University of Nebraska at Omaha. "You're not arbitrarily having somebody walk away from the money … You're telling the mule, 'Hey, it's not as easy to walk away from this stuff now. We're going to hit you with a criminal charge.'"

The bill would allow a person to give up their rights to seized money, but that waiver could only come from a prosecuting attorney, not a law enforcement officer.

From 2013 to 2023, 75% of Seward County's state civil forfeiture cases happened after a driver signed a form abandoning money on the side of the interstate, according to a Flatwater Free Press analysis of court records.

These forms, sometimes called disclaimers or on-the-spot waivers, are criticized as constitutionally questionable. The Douglas County Sheriff's Office no longer uses them. Five states, including Wyoming, have banned them.

The bill would also require a law enforcement officer to give a person an itemized receipt of whatever was seized.

In July, three drivers who had been stopped in Seward County alleged that some of their cash disappeared during those traffic stops.

Vance said missing money was impossible, citing the cameras that run throughout a traffic stop. He denied a Flatwater Free Press records request to release the camera footage from the traffic stops in question. One of the drivers was denied footage from his own traffic stop.

Civil forfeitures would still be possible through federal court, but only for cases involving more than $25,000. That limitation already exists in state law.

Forfeiting money through federal court is common practice nationally. Agencies often form task forces with the Drug Enforcement Agency or Department of Homeland Security, and can receive a bigger slice of the forfeited cash.

From 2018 to 2022, Seward County brought in $7.1 million in criminal and civil forfeitures through its federal partnerships. Lancaster County brought in $9.2 million. Statewide, Nebraska law enforcement agencies raked in $31.7 million over those five years.

Brewer’s bill mirrors what legislators thought they had passed years ago, Ebke said. In 2016, former Sen. Tommy Garrett sponsored legislation intending to get rid of civil asset forfeiture in Nebraska.

The end result, though, still allows law enforcement to seize assets if they can connect the cash to drugs, even if there are no drugs present.

The new bill’s text is "the gold standard of forfeiture reform," said Lee McGrath, senior legislative counsel for the Virginia-based Institute for Justice, which helped write the bill.

Three states – Maine, New Mexico and North Carolina – have passed similar laws eliminating civil asset forfeiture, McGrath said. In New Mexico, an Institute for Justice analysis found that getting rid of civil forfeiture didn’t lead to an increase in crime.

In June, the U.S. House Judiciary Committee unanimously voted to advance a bill that would limit civil asset forfeiture at the federal level.

Brewer and his bipartisan allies will now attempt to pass the bill banning the practice at the state level, though Ebke, the former lawmaker, said she expects stiff opposition.

“There will be some who will think that it’s taking away from rightful authority. Some will see it as a monetary loss for the counties,” Ebke said. "It's designed to protect folks, it's not designed to be so-called soft on crime.”

But the bill, as currently written, fails to capture the complicated nature of forfeiture and seizures, said Houchin with the Lancaster County Sheriff's Office.

The bill doesn’t mention the Department of the Treasury, which oversees Homeland Security, he said. Both Lancaster and Seward do the bulk of their federal drug interdiction work with Homeland Security.

"Is this bill going to affect us horribly? No," Houchin said. "But I think it needs to be looked at, needs to be expanded and needs to be thought about a little better before it gets voted on."

Brewer said he's open to the discussion, and thinks a Judiciary Committee hearing will help the Legislature understand the ways in which law enforcement seize money during I-80 traffic stops.

"We want to make sure that we help law enforcement, not hurt law enforcement,” Brewer said. “But we also have to hold law enforcement to a very high standard."