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North Dakota case highlights civil asset forfeiture

August 11, 2018

BISMARCK, N.D. (AP) — Aaron Dorn just wants his truck back.

He was arrested during a Thanksgiving Day protest of the Dakota Access Pipeline in 2016 in Mandan and charged with felony reckless endangerment, among other offenses. A state trooper alleged Dorn tried to swerve and ram his vehicle in traffic on Main Street in Mandan.

In June, Dorn was acquitted at trial, but his legal battle isn’t over. Morton County has held his 2003 Chevrolet Silverado since his arrest. Even though Dorn was acquitted, getting his truck back is a separate matter involving civil asset forfeiture, or the law enforcement seizure of property suspected to be involved in criminal activity.

Dorn is facing a tough challenge as the Institute for Justice ranks North Dakota as one of the worst states in the nation for civil asset forfeiture laws based on the state’s low burden for seizure and forfeiture, with no conviction required, only probable cause.

It’s an area of law that saw some movement in North Dakota’s 2017 legislative session, but ultimately failed. For Dorn, it’s about getting his truck back — the vehicle his father owned and later gave to him.

“I am not a person with means. I was not born with a silver spoon in my mouth. Everything that I own, I worked hard to get there,” the upstate New York resident told the Bismarck Tribune . He added he owned his own construction outfit before turning to antique sales, traveling to shows all over the northeastern United States. Now, he can’t.

Since his truck’s seizure, Dorn said he hasn’t been able to provide for his household. He and his girlfriend of 10 years have a 3-year-old daughter.

Morton County Assistant State’s Attorney Gabrielle Goter filed civil asset forfeiture proceedings for his truck in November. Texas attorney Burke Moore took up Dorn’s defense. His status as an out-of-state attorney would bring a defining dispute to the case.

Dorn’s desire for the return of his property has become embroiled in questions of the legitimacy of his lawyer to practice in North Dakota.

In January 2017, the North Dakota Supreme Court issued an order that allowed out-of-state attorneys, with the sponsorship of a North Dakota-licensed attorney, to assist in criminal cases charged from the pipeline protests

Moore said he believed this program extended to Dorn’s civil case, and he also invoked the state’s traditional rule for non-North Dakota attorneys to file within a 45-day timeline to practice in a North Dakota case.

Earlier in July, the day before Dorn’s civil hearing, Morton County Assistant State’s Attorney Austin Gunderson motioned for judgment of forfeiture of Dorn’s truck, asking South Central District Judge Bruce Haskell to find that Moore hadn’t properly filed an answer to the initial civil asset forfeiture documents, alleging he was never approved to be an attorney on the case.

Gunderson did not return two phone messages or an email for comments on the case.

Moore declined to comment on any future strategy related to the case, but Dorn said it isn’t over. Grand Forks attorney Erik Escarraman said he plans to step in, with a few options available, such as appeal. The civil case awaits Haskell’s judgment to be filed, though he’ll likely sign Gunderson’s proposed documents for forfeiture.

Escarraman called Dorn’s case “an arm without a body.”

“He’s been acquitted,” he said. “They’re essentially taking property from an individual who has done nothing wrong.”

Dorn said he believes Morton County sold his truck long ago, but Goter said “it’s not been sold yet.”

Dorn also said he plans to share his story in future legislative testimony. Republican Rep. Rick Becker of Bismarck has sought to reform civil asset forfeiture in North Dakota, taking aim at what he says is a “little known” area of law that was “shocking” to him when he first learned of it.

Becker’s bill to reform aspects of civil asset forfeiture passed the House, but garnered zero votes in the Senate after North Dakota Attorney General Wayne Stenehjem “gave forceful testimony against it,” Becker said.

“Virtually 100 percent of North Dakotans would agree that, if you are not found guilty of committing a crime, you should get your property back,” he said.

He said one response to reform is an accusation of being anti-law enforcement, or suggesting that police are abusing the law to seize property to essentially fill their agency’s coffers.

Becker said he can’t disagree more: “This doesn’t change law enforcement’s job at all, and I think that if we were to talk about this dispassionately and logically, it’s very, very clear there’s a perverse incentive.”

He added that the main argument is that keeping suspected or repeat offenders’ property, such as a drug dealer’s car and cash, will keep them from committing more crimes, but he asserts that notion tramples on the idea of “innocent until proven guilty.”

Becker said he plans to take up civil asset forfeiture reform again in 2019. For a first-time bill on something new to many people to pass the House like it did in 2017 was “a huge feat,” he said. If his efforts fail next year, he said he’ll probably resort to an initiated ballot measure.

“The biggest thing is a person shouldn’t have to fight in court to get their property back, if they haven’t been convicted of a crime,” Becker said.

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Information from: Bismarck Tribune, http://www.bismarcktribune.com

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