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Police risk lawsuit for enforcing laws

Dean Collins, Brookfield’s assistant chief of police, will not enforce a number of state statutes.

It’s not that he doesn’t want to, he said, but legally, he can’t.

A loophole in the Wisconsin statutes means police and sheriff departments cannot enforce at least 22 state forfeiture offenses, he said, such as the use of hotel rooms for underage drinking.

Crimes are punishable by imprisonment, fine or both, Collins said, but state forfeitures are not crimes. Someone found guilty of committing a state forfeiture offense must pay money, but that payment differs from a fine because it does not include an entry on a person’s criminal record.

The Legislature has conveyed specific authority for police to enforce some state forfeiture statutes, such as noncriminal traffic and municipal ordinance offenses, Collins said, but does not have a broad statute for all state forfeitures.

“You pass laws that we can’t enforce,” he told the Assembly’s judiciary committee Friday, “so unless you give us the authority to enforce them, you’re wasting your time.”

The judiciary committee held a hearing in Milwaukee on Friday to discuss a bill introduced by Rep. Jim Ott, R-Mequon, to clean up the state’s criminal code. Collins asked the committee to include language in the code update similar to that contained in a failed 2011 bill to close the loophole.

After the hearing, Ott said he would consider reintroducing the 2011 bill.

“If there’s a way it can be fixed to make everybody happy,” he said, “it seems like a common-sense thing.”

He said he wanted to find out why the 2011 bill, which contained only one sentence, failed and would try to meet with its author, Rep. Joel Kleefisch, R-Oconomowoc.

Kleefisch did not immediately respond to a request for comment Friday.

Had the 2011 bill passed, law enforcement officers would have been able to arrest someone for a violation punishable by a civil forfeiture. Collins said one word derailed the effort: “arrest.”

The word “arrest,” he said, is a legal term and does not mean officers would snap handcuffs on someone for a state forfeiture infraction. A person who committed a state forfeiture offense would, in most cases, be referred to the district attorney, he said, rather than arrested in the manner most people think of.

“‘Arrest,’” he said, “is really a short-hand term for ‘enforce.’”

Without the Legislature conveying that power of arrest, he said, his officers cannot stop someone or detain him or her for questioning. An officer can approach someone and speak to them about a suspected offense, he said, but that officer could not stop the person from walking away.

“There were some people,” he said, “who thought the bill would give the police too much power.”

But, he said, his officers had assumed they already had that power, and that misconception landed his department in federal court.

On July 4, 2010, before the state’s concealed-carry law was passed, he said, his department responded to a complaint of a woman openly carrying a pistol at a church. When officers arrived, Collins said, the woman was driving away. His officers stopped the woman and arrested her for illegal transportation of a weapon in a car, he said, but the district attorney never charged her. The woman, instead, charged the Brookfield Police Department with overstepping its authority.

“So we were sued in federal court,” Collins said, “for violating her civil rights because we had no lawful authority to stop, detain or arrest her.”

The case ended in a settlement, he said.

Now that his department is aware of the loophole, Collins said, his officers will not stop a political candidate from defacing or destroying an opponent’s campaign sign, will not detain an intoxicated pilot and will not stop anyone from digging up a human grave, among other things.

They know, he said, the state would want them to, but that does not outweigh the risk of another lawsuit.

“It puts officers in a very difficult position,” he said.

— Follow Beth on Twitter

This story was updated Oct. 11 to clarify the distinction between a crime and a state forfeiture and to remove an incorrect example of a state forfeiture.

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