Will The DEA Shut Down Every Major Music Festival in the Country?

The seizure of the 352-acre Camp Zoe property in Southeast Missouri has so far garnered substantial attention both in America and internationally. That’s because this is no ordinary seizure; without (so far) being charged with a crime, the property owner, musician Jimmy Tebeau, is having his land taken from him in a process that strips him of his rights under both the US and Missouri constitutions.

The DEA has filed a claim for seizure and forfeiture of the property on the grounds that for years, concert-goers have engaged in consumption and transaction of illegal drugs. Under this theory, every major music festival in the country could be shut down by law enforcement whose motive is not to make Americans safer through the protection of their rights, but the profit that police can make by taking property from citizens.

From today’s St. Louis Riverfront Times:

Only later did Goebel learn that the raid was the culmination of a four-year-long investigation by the DEA and the Missouri State Highway Patrol into alleged drug use and sales by Camp Zoe concertgoers. No one — including Camp Zoe owner Jimmy Tebeau — has been charged with a crime, but the eastern Missouri U.S. Attorney’s Office isattempting to confiscate the 352-acre property using a controversial process called asset forfeiture.

It’s not just alarming to festival attendees like Goebel. The situation has other music festival organizers worried that they, too, might be held accountable for any illegal activity that happens to take place at their event.

“It has gotten our attention,” says Brian Cohen, the organizer of St. Louis’ LouFest. “All festivals take on some degree of liability. That’s why we hire security, medical personnel, etc. But the potential penalties in this case seem to put it in a different category. LouFest and Schwagstock are two very different animals, so it’s hard to know what impact this could have on us. But we’re definitely watching it.”

Dave Roland, an attorney with the for the non-profit advocacy group Freedom Center of Missouri, calls the Camp Zoe seizure “a shot across the bow” for individuals who host music festivals or popular events on private land.

“My home state is Tennessee,” Roland says. “What about Bonnaroo? The folks who own that property need to be very aware and very concerned. With any large gathering of young people, there’s probably going to be some illegal activity, and if that’s taking place, it appears that property could be subject to forfeiture.”

Yesterday’s RFT story on the Camp Zoe seizure implicates the motive for the seizure: keeping money flowing to law enforcement despite the existence of Missouri law directing forfeitures to education:

Eapen Thampy, a policy analyst for the Kansas City-based non-profit group Americans For Forfeiture Reform, obtained records of each Missouri county’s deposits into the state’s “School Building Revolving Fund” via a Sunshine request. Thampy then compared the records to state audits of the forfeiture activity. After crunching the numbers, he concludes that “90 percent of counties in Missouri are non-compliant” with the state law that requires forfeiture proceeds be used to fund public education.

“We’re talking $60 to $80 million that has been misappropriated,” he says. “‘State law enforcement has been able to dodge all requirements of the system and keep that money directly for their budgets.”

That last part is key. Missouri’s reforms only apply to forfeitures in the state system. But local law enforcement agencies know that they may still keep seizure profits for themselves if they use the federal system.

In federal cases, an agency such as the DEA takes a percentage of the money seized — usually 20 percent — and returns the remaining 80 percent to the local police, an exchange called “equitable sharing.” None of the money goes to the schools.

That $60-$80 million estimate is for the years 2008-2009, when the federal government reported disbursements of roughly $50 million to Missouri law enforcement agencies.  This $50 million in disbursements from the Dept. of Justice Equitable Sharing fund represent roughly $60 million in seizures, since the seizing DOJ agency (usually DEA or FBI) keeps 20%.

It is unclear how much of this is reported to the state auditor, but we do know that the Missouri state auditor in 2008-2009 reported roughly $12.7 million in seizures, $5.7 million of which received circuit court rubberstamp approval to proceed in federal court.

And in 2008-2009, deposits to the Missouri School Building Revolving Fund (the statutory vessel where seizure funds are supposed to be deposited) totaled $86,000.

What this means is that most, if not all, of Missouri counties are non-compliant with the statutory requirement that forfeiture money be deposited in a school fund. They are also non-compliant with the requirement that all forfeitures that state agencies participate in, even if the forfeiture ends up in federal hands, must be reported. As per the Revised Statutes of Missouri, 513.605:

(8) “Seizing agency”, the agency which is the primary employer of the officer or agent seizing the property, including any agency in which one or more of the employees acting on behalf of the seizing agency is employed by the state of Missouri or any political subdivision of this state;

(9) “Seizure”, the point at which any law enforcement officer or agent discovers and exercises any control over property that an officer or agent has reason to believe was used or intended for use in the course of, derived from, or realized through criminal activity. Seizure includes but is not limited to preventing anyone found in possession of the property from leaving the scene of the investigation while in possession of the property;

And RsMO 513.607:

(2) Seizure may be effected by a law enforcement officer authorized to enforce the criminal laws of this state prior to the filing of the petition and without a writ of seizure if the seizure is incident to a lawful arrest, search, or inspection and the officer has probable cause to believe the property is subject to forfeiture and will be lost or destroyed if not seized. Within four days of the date of seizure, such seizure shall be reported by said officer to the prosecuting attorney of the county in which the seizure is effected or the attorney general; and if in the opinion of the prosecuting attorney or attorney general forfeiture is warranted, the prosecuting attorney or attorney general shall, within ten days after receiving notice of seizure, file a petition for forfeiture. […]

8. The prosecuting attorney or attorney general to whom the seizure is reported shall report annually by January thirty-first for the previous calendar year all seizures.

10. Intentional or knowing failure to comply with any reporting requirement contained in this section shall be a class A misdemeanor, punishable by a fine of up to one thousand dollars.

And as I wrote in the Columbia Tribune this September, not only is this Missouri law, but these directives are enshrined in the Missouri Constitution and a couple Missouri Supreme Court decisions:

In 1990, the Odessa School District won a landmark victory in the Missouri Supreme Court with a verdict that held the Missouri Constitution directed money seized from criminals to Missouri’s schools. The victory was short-lived. Almost immediately, Jean Paul Bradshaw, the U.S. attorney for western Missouri, contacted Missouri’s law enforcement agencies with news that they could keep the money through a federal forfeiture provision managed by the Department of Justice.

The program, called Equitable Sharing, allows state and local law enforcement agencies to take property seized in the course of an investigation to the Department of Justice for liquidation rather than to state courts. Ultimately, the Department of Justice cuts the local law enforcement agency a check for up to 80 percent of the property’s value, dodging Missouri’s requirement that the money must go to education.

In 2001, Gov. Bob Holden signed a bill aimed at reforming this system. The bill contained a number of protections, including a mandate that all forfeitures to federal agencies receive Missouri circuit court approval and that all forfeitures be attached to a felony conviction.

Nine years after these reforms, a number of problems have re-emerged. First, the transfer of forfeitures to the federal government has continued unabated as circuit court judges often rubber-stamp law enforcement requests. Second, the requirement that circuit court approval be granted is unenforceable; often, property goes to federal law enforcement agents who can execute the forfeiture directly without judicial approval. The amount of money that ends up being misappropriated this way is substantial. In 2008 and 2009, state and federal law enforcement retained well more than $50 million in direct circumvention of Missouri law at the expense of Missouri schools.

What do the feds have to say about this?

“It’s another tool in the toolbox,” says Richard Callahan, the U.S. Attorney for Eastern Missouri. “Forfeiting is a key part of the attempt to achieve justice.”

Mr. Callahan, you are a thief, operating under color of law, working for a government agency that has made theft part of its modus operandi. I urge all Americans to hold our elected officials accountable for the behavior of people like Mr. Callahan; if we do not, we have forfeited our liberty, and we have nothing left.

– Article from Americans For Forfeiture Reform on December 3, 2010.