A Presentation Given at the LPNC Convention*

*edited slightly for print

by: Eric Rowell, LPMeck and LPNC

I want to start by thanking Dee [Watson, LPNC Secretary and Political and Policy Director] for the invitation to speak this morning and to the Libertarian Party of North Carolina for giving me the opportunity to talk about such an important topic. I’d also like to recognize fellow Mecklenburg Libertarians Rob Yates and James Higgins for their encouragement – it’s been great getting to know both gentlemen over past few years, it’s reassuring that even in the liberal stronghold that is Mecklenburg, there are so many advocates for freedom fighting to change the status quo.

My goal today - I hope to inspire at least one person here to head back to his or her hometown with action items on what to do to help end the abusive and corrupt practice of asset forfeiture in NC. And I will commit to being a resource for anyone who needs assistance.

A little bit about myself since I’m not exactly a household name in the liberty movement outside of Huntersville. I’m a North Carolina native, grew up in the Garner area in Wake County. Pretty traditional upbringing, both parents raised in the Garner area as well. I have three younger sisters, almost made it all the way through Webelos, played sports growing up and through high school, spent many a Friday night sitting on a tailgate in the Food Lion parking lot wasting time with friends waiting on something exciting to happen, and I always liked to read.

I graduated from NC State University in 2003 with a BA in Poli Sci, worked for a year delivering produce in the mornings and then going to work as a clerk at a law firm in the afternoons, and then was accepted into the first class at the Charleston School of Law. Since graduating law school, I have worked as a state prosecutor, defended individuals charged with felonies and misdemeanors while on the appointed counsel list for Mecklenburg County, spent two years doing insurance defense work at a small firm in Charlotte, five years as an adjuster with an insurance company, and for the past five years now working as general counsel and then risk manager for a large pool management company with offices in multiple states. I’ve also been a two-time candidate for town board in Huntersville. Even though I didn’t win, I’ve remained engaged locally trying to help keep the focus on limiting government locally whenever possible.

I have what I would consider a fairly conservative outlook, so of course I registered as a Republican when I turned 18. I’ve always loved listening to talk radio, still do, and I was a big fan of Rush Limbaugh (make fun all you want, but if it weren’t for Rush I probably would have never been exposed to the great economist and thinker Walter Williams, who used to be a guest host when Rush was out) and watched plenty of Fox News. But I was never active in politics through college other than being a regular voter, and it wasn’t until law school that I really began to think for myself and push back against the index card of allowable opinion, as Tom Woods would say.

Two anecdotes still stick with me from law school – that I’m mainly sharing for anyone here in the room still in college/grad school or who may be heading there soon – a family law professor who tried to accuse George W. Bush of being opposed to gay marriage by signing into law the Defense of Marriage Act when it had obviously been signed years before by President Clinton – I pointed this out to him respectfully after class and he was incredulous until I literally showed him on my laptop the facts. And then another instance in a Legislative Advocacy elective taught by a former legislative aide to Democrat Senator John Breaux (another anecdote involving Bill Clinton actually), who made a claim about Clinton’s popularity by citing his being elected by an overwhelming majority of the vote – when Clinton wasn’t elected either time with a majority of the vote – thanks mainly to Ross Perot. And of course, by the time I started Constitutional Law, I was the annoying student keeping everyone in class longer by constantly questioning the professor.

If my professors could be wrong about simple things that could easily be verified with some quick research, what else could all the adults be wrong about? Finally about a year after graduating law school I had my “red pill” moment while doing mindless legal document review and listening to a replay of Rush Limbaugh with Walter Williams filling in as host – when he shared a quote from Frederic Bastiat’s The Law. The next day I downloaded an audio version of The Law to listen to and I haven’t looked at the world the same since – every line in that work hit me like a ton of bricks – and that’s what started me down the liberty rabbit hole leading me here today.

I share all this with this group in particular to simply say – be patient with those in your network who may not be where we all are yet, who may still be stuck in the Republican Good/Democrat Bad world of the likes of Mark Levin and Fox News. Not everyone comes to the Liberty Movement at the same time, some of us take longer to get here, but Libertarians are fighting a major uphill battle against the legacy corporate media and [AT LEAST] 12 years of public school indoctrination and the general tendency of human nature to seek out pleasure and minimize pain – but if we are going to be successful in rolling back the state in areas like asset forfeiture, we will need all of the help we can get.

So, what does it mean to Lead Locally? To me it means spending time and energy focusing on attainable goals in your own backyard instead of wasting time and energy trying to accomplish far more unattainable goals like changing policy at the federal level. I know this is a presidential election year – and I’m not trying to diminish the importance of having strong candidates and voices from the Liberty Movement involved with presidential politics – but for the vast majority of us here, we can accomplish far more locally than in Raleigh or D.C. One person can make a very dramatic impact on a local level.

A few examples of local activism I’ve been involved with over the past 15 or so years.

• Speaking at a town board meeting against town of Cheraw (SC) plans to purchase a local golf course – the town ultimately decided against and the golf course was purchased by private investors.
• Speaking at a Charlotte City Council meeting (I lived in Charlotte from 2010-2013 before moving to Huntersville) and attending transportation subcommittee meeting to oppose a plan to strictly regulate pedicabs in Charlotte – worked with my city council member to minimize the anti-competitive impact of the original regulations.
• Handing out copies of Bastiat’s The Law to town board members in Huntersville at my first town board meeting after moving there back in 2014 (which of course none of them have probably ever read) and being a government watchdog ever since – running a facebook group dedicated solely to Huntersville Politics since 2017 with now over 1100 members, including multiple elected officials.
• Being awarded the 2021 Sunshine Award from the NC Open Government Coalition for my efforts at increasing transparency in Huntersville and for advocating for the town following open meeting and public record laws.
• Helping make Huntersville the second town in the state to opt in to lowering alcohol sales times on Sunday to 10 AM after passage of the Brunch Bill back in 2017.
• Pushing Huntersville to start live streaming board meetings back in 2015 so residents who couldn’t attend wouldn’t have to wait weeks for minutes to be released.
• Earning a No Contact letter from an attorney on behalf of the Huntersville Fire Dept. back in 2018 simply for asking for records related to their finances (HFD, Inc. receives about 98 percent of their funding from taxes, but claim to not be subject to public records laws…).
• Helping to break a number of stories locally as a result of my activism and cultivating sources over the years – HPD officer discharging a weapon into busy shopping area, former Town Board member receiving $97K in no-bid contracts, HPD officer writing speeding tickets with an expired radar certification leading to at least 20 dismissed tickets.
• And bringing HPD’s involvement with the asset forfeiture program to the attention of the town board over the past few years through multiple posts online and requests for records – and finally last year getting the board to remove this item off of Consent where it was never discussed and forcing the chief to defend the practice and promise reforms.

Forfeiture Basics

Now let’s turn to why I’m here today – civil asset forfeiture. This audience is probably more familiar with this practice, along with the known problems and abuses, than most audiences, but a few basics for anyone not already familiar. We all have our individual areas of focus in the movement (whether it’s monetary policy, licensing, war and foreign policy, etc.), I think for me issues involving abuse by the police have been a focus because I have a background as a prosecutor and I am not blinded by some notion of the benevolent state. I’ve seen police abuse their power in person and I have not been afraid to ask tough questions involving the Huntersville PD.

Civil asset forfeiture is basically any situation involving law enforcement seizing money, vehicles, or other property from the rightful owner without requiring the owner to be convicted or even charged with a crime.

Thankfully, we live in one of the few states in the country that has abolished civil asset forfeiture and only allows property/money to be forfeited after a criminal conviction; NC law requires a criminal conviction and also a connection to a drug offense. Not only has NC taken steps to protect innocent individuals from being abused by this practice by requiring a conviction and by allowing an innocent third-party (like the spouse or parent of a drug offender) to contest the forfeiture in court, the legislature has also essentially eliminated the “incentive problem” by requiring any proceeds from property seized (or actual cash) to go to the local school board for the county in which the property was seized. The law enforcement agency involved does still have the option to retain the property for official use, but this isn’t typically done (does anyone remember Wake Co. Sheriff receiving criticism for keeping a Corvette Z06 a few years back?).

So, if NC doesn’t allow civil asset forfeiture, why am I here today talking about it? Because of what’s known as the Equitable Sharing loophole. Law enforcement agencies in NC are still permitted to benefit from seizing money or property through the Equitable Sharing program, potentially from innocent individuals. According to the Institute for Justice (IJ) – the leading public interest law firm advocating for change on this issue – equitable sharing allows state and local law enforcement agencies to partner with the federal government to seize and forfeit property under federal law—and receive up to 80 percent of the proceeds—regardless of state law. This happens in two ways – through “adoption” or via participation in federal law enforcement “task forces.” In Huntersville, for example, according to the most recent information provided to me by HPD, we have seven officers who are on loan to DOJ and Homeland Security “task forces” and that is where our asset forfeiture proceeds come from – we don’t have a formal policy prohibiting “adoption,” but our chief has stated publicly HPD does not get involved with adoption.

What do I mean by “adoption?”

When money or other property is seized as part of a state or local investigation or prosecution, the forfeiture of those assets can be “adopted” by a federal agency if the offense is also a crime under federal law (as most controlled substance offenses are). Why the federal government even has “federal drug laws” to begin with is an entirely separate topic; however, on a positive note, this is a modern example of nullification since an increasing number of states simply ignore these laws by legalizing marijuana.

Equitable sharing gives state and local agencies another avenue for forfeiting property and gaining a share of proceeds—one backed by the resources of the federal government. More than that, though, the program enables law enforcement agencies to circumvent their own state’s forfeiture laws in favor of forfeiting property under federal forfeiture laws. Thus, forfeiting property through equitable sharing may be especially appealing when a state, like NC, offers property owners more protections, or makes forfeiture less lucrative, than federal law does.

Proponents argue equitable sharing—and the revenue it generates—is essential for federal, state, and local law enforcement to effectively collaborate, especially when it comes to combatting the illegal drug trade. In theory, these forfeitures take the profit out of crime and provide state and local agencies with the resources they need to continually step up their crime-fighting abilities. But, according to IJ, recent research finds no evidence that this is actually true. Results from the 2019 study by economist Brian Kelly indicate equitable sharing payments to state and local agencies did not translate into more crimes solved or lower levels of drug use—though they did correspond to fiscal stress, suggesting equitable sharing use increases when the economy turns sour and law enforcement budgets are likely to suffer cuts.

Part of the reason participation in equitable sharing doesn’t equate to lower crime levels – often the cases/arrests/seizures don’t even take place in the town involving the local officers. Just last week I was provided with details on four recent task force related seizures involving HPD, none of which were actually in Huntersville.

For context – NC law enforcement agencies reported $16 million of forfeiture funds in 2023.

PROBLEMS?

So what if law enforcement goes after the bad guys by taking money and guns and property from drug dealers? If you’re not a drug dealer what do you have to worry about, right? If you’re not guilty you won’t get your money seized.

Tell that to the hundreds, if not thousands of innocent victims of asset forfeiture across the country since the federal government ramped up its involvement in the early 80s, and those are only the ones we know about.

Tell that to Jermaine Sanders in Mooresville, or the child sex abuse victim in Mint Hill who can’t recover against her abuser, or Lyndon McClellan – a convenience store owner in Fairmont, NC, or Jerry Johnson – who owns a small trucking business outside of Charlotte, or any number of airport travelers in Charlotte or Raleigh who have been the victim of random stops by law enforcement for carrying perfectly legal amounts of cash for domestic travel.

Another problem – asset forfeiture too often targets the poor and the powerless. According to IJ, the reality is that the typical forfeiture is hardly the stuff of drug kingpins or major fraudsters. In the 21 states with available data, most currency forfeited in recent years was under $2,000, an average of $1,276 across all states. In most of the 21 states, the median forfeiture is even smaller—often much smaller. Huntersville has been unwilling or unable to provide this level of detail to elected officials about individual seizures – and the same probably goes for most of your towns.

The proceeds flowing into police coffers inflates their budgets and encourages wasteful spending because many agencies literally cannot spend all the money they bring in. Huntersville, for example, has averaged between roughly $350K-$500K at any given time since I have been asking for account balances going back to 2015. Last year they spent $15K on an electric golf cart ostensibly to patrol crime on the greenways! It has been used solely for promotional joy rides to date – not a single criminal apprehended by the greenway police. HPD has also used forfeiture funds to purchase spy cameras and drones – two drones for $55K total back in 2020 – along with other surveillance related purchases like license plate readers – all going to expand the surveillance capabilities of local police. They then share all of this data with multiple other agencies with no oversight of any kind by local elected officials.

As Professor [Michael] Munger would say about the problems with reforming the ABC system, what most of see as costs, many people see as benefits. Every dime of asset forfeiture funds brought in by local police is seen as a benefit to local elected officials who figure that’s less money out of the general fund they have to use for the police budget – hence their literal lack of interest in where the money comes from – politicians don’t see it as a cost if innocent individuals in another town are impacted by this practice when those individuals can’t even vote for them to begin with.

Lending local resources to the feds is also a form of double taxation on local taxpayers – who pay the salaries of local officers to be used on federal task forces (unless OT is reimbursed by seizure monies) while also not helping to do their job of stopping crime locally. Huntersville still has an unsolved murder from 2014 – could we be devoting more resources to solving this murder instead of those resources being used to bring in money from forfeiture? Just last week at the annual budget retreat the HPD chief asked the town board to approve additional funding for five more officers. As a reminder, we have seven officers currently being used for task forces – why not just bring those officers back to have them fill the needs?

GOALS

So what can we do to end asset forfeiture in NC?

First, all of us can start by raising awareness about this issue in our cities and towns if our tax dollars are going to local law enforcement officers being used on federal task forces or if our local law enforcement is engaging in adoption.

Check the report from the DOJ – is your town/county listed? If so, I would suggest emailing your elected officials and encouraging them to ask the below questions any time your police department seeks to spend asset forfeiture funds, and about your police department's participation in the Equitable Sharing program in general. I would also suggest removing any agenda items related to expenditure of this source of funds from the Consent Agenda since there should always be questions from elected officials any time a town department seeks to spend asset forfeiture related funds. It is important for the public to know more about their local law enforcement's involvement in the Equitable Sharing program. It is worth the time it takes to ask these basic questions to try and ensure the funds you are authorizing your department to spend are not coming from innocent individuals.

• Ask where these funds are coming from? How many cases? What types of cases? How many different individuals? What type of assets - cash, automobiles, real estate, weapons, other types of property?
• Ask whether any of this money comes from individuals who have not been charged with or convicted of a crime related to the money/property taken from them?
• Ask whether any of this money comes from individuals who may have had their civil rights or constitutional rights violated related to the money/property taken from them?

(Follow up these questions with records requests for more information. I will always be willing to help anyone interested in putting together a request.)

• Please provide any and all forms/documents providing how many X Police officers are deputized or cross-deputized by any federal agency or who are are sworn members of any federal law enforcement agency; and
• Please provide any and all forms/documents providing how many X Police officers are assigned to or who have participated in or had any involvement with any federal task force/federal agency or initiative since July 1, 2021;
• Please provide the current balances for all equitable sharing/asset forfeiture monies being held for X Police involving DOJ and/or Treasury funds; and
• Please provide any and all memorandums of understanding (MOU) between X Police and any federal agency related to X Police's participation in the Equitable Sharing Program.

Keep following up with your local electeds and local police for more information and details. With enough focus on this, you will likely expose the lack of oversight of law enforcement and the right electeds will take notice. Write letters to the editor of your local paper, post on social media, try to get the attention of local reporters looking for stories. There are abuses out there just waiting to be uncovered. Monitor your board’s meeting agendas for any forfeiture related items – any expenditures that have to be voted on – make sure these items are removed from the Consent Agenda so they have to be voted on by the board, force board members to take a stance one way or the other on this issue.

Even if the FAIR Act passes the House this Spring, it may not pass the Senate – so we could still be a long way off from reform at the federal level – and I’m not aware of any efforts in Raleigh to reform involvement with the equitable sharing program. If you can ask enough questions, maybe you can convince your town/county to cancel any contracts with federal agencies and opt out of the equitable sharing program entirely. The federal government has never had enough resources to enforce all the laws they pass – it has always had to rely on local resources for enforcement of many laws – examples like the fugitive slave act, the draft – using local draft boards in WW1, lock downs during covid, and obviously the war on drugs.

If we can significantly reduce, or completely end, law enforcement in NC’s involvement in equitable sharing, we can ultimately reduce the size and role of the federal government. Without local law enforcement’s participation, the war on drugs becomes harder to prosecute. And we can help to make our own communities safer by keeping police focused on crime reductions in their jurisdictions only (accepting for the sake of these remarks that privatizing the police isn’t happening anytime soon!).

Thank you for your time and attention this morning.

Watch Eric's talk, followed by the business portion of the 2024 LPNC state convention, here.