Editors note: complete hearing available on video (Judges ruling begins at 1:13.02 or 4:16:05 on the time stamp). Video takes a few moments to load–well worth the wait. See additional video at end of article.
OPNET is the Olympic Peninsula Narcotics Enforcement Team, a multi-jurisdictional task force including Washington State Patrol, Clallam County Sheriff’s Department, Port Angeles Police Department, Sequim Police Department, Border Patrol, et., al. Jefferson County pulled out.
In the marathon legal saga of OPNET/Clallam County versus the Fager brothers, the late Jefferson County Superior Court Judge, Craddock Verser ruled OPNET operatives displayed a “reckless disregard for the truth” in seeking warrants. He also found agents trespassed on Fager property and wholly mismanaged a case to the level of government misconduct.
Washington, like most states, has civil asset forfeiture laws which cause even the innocent to fear for their property rights. Civil asset forfeiture is an odd duck. When we think of criminal cases we normally think of people charged with crimes. In civil asset forfeiture cases it is the property that is accused of a crime.
That is not the only anomaly. When a person is charged with a crime there must be “probable cause” before they are put on trial and they must be convicted beyond a reasonable doubt. When one’s property is accused of a crime it may be only upon the suspicion that the property was either used in a crime or is the proceeds of criminal enterprise.
If the owner of seized property challenges the government’s taking of property then, under civil asset forfeiture laws, the burden of proof shifts to the property-owner to prove that his property was not used in a crime and was not the proceeds of criminal activity. If the case goes before a judge then the government need only prove by a preponderance of the evidence that the property is a part of ill gotten gains. This is far short of the “beyond a reasonable doubt” standard required for a criminal conviction.
In a large percentage of civil asset forfeiture cases the owner is never charged with a crime. The government can merely suspect property is illegally obtained or instrumental in a crime and the government can take it. Moreover, the property confiscated by the government may include the persons bank accounts, thus making the person financially unable to mount a legal defense because the government has tied up all the owner’s assets. Not many lawyers will take such cases on a contingency basis.
When property is seized in this manner the owner has but a few days to contest the seizure or the property is lost forever. If they do file objections to the seizure then they must prove the property seized was obtained by lawful means. If they are successful the property must be returned and, as part of the action, may have the government pay for the defendant’s legal fees spent to right the wrong. This should act as a deterrent to seizing agencies. When they know that losing a civil forfeiture case may incur costs to taxpayers they would normally be cognizant of their prospects for success.
In the Fager case not only were all criminal charges dismissed but the Fagers also regained their property. OPNET and Clallam County was ordered to pay almost $300,000 in attorney fees to the Fager brothers. This did not come easy or quickly. It may not be over yet.
Even though the trial judge concluded the OPNET operatives exhibited, “reckless disregard for the truth” in seeking the initial search warrant they still held on to the confiscated Fager property despite the dismissal of all criminal charges. Held onto it for years.
According to Steve Fager, “the taxpayers paid for thousands of hours expended by OPNET officers during the investigation beginning in February, 2008 and ending in October, 2009. It was all about seizing assets and nothing to do with our medical marijuana grow operation. Public records reveal they spent up to 3,000 hours on the investigation alone.”
This is three thousand hours at approximately $50 per hour, not including overtime. According to court documents OPNET operatives filed very few internal progress reports during the ongoing investigation. Most of the reports on file are merely internal documents detailing charges for overtime payments. These are required to tap into federal grants funding OPNET.
“Testimony at trial revealed OPNET operatives visited the county courthouse examining our property holdings a full year prior to us becoming suspects. They went after the properties that were owned free and clear or had very small mortgages still owing. This makes me think they target property owners by their assets instead of criminal activities,” continued Fager.
“We were forced into one expensive court action after another seeking to compel release of exculpatory information that should have been given to us in the beginning as required under Brady.” (Brady is a famous Supreme Court decision requiring all exculpatory information be provided defendants before trial)
“All this did is run up the bill taxpayers would ultimately have to pay. I believe this was their strategy from the beginning–to refuse everything and run up the cost, hoping to cost us out of the case,” said Fager.
Within the court documents is an email from Mark Nichols dated January, 2013. Nichols was then deputy civil prosecutor for Clallam County working under County Prosecutor, Deb Kelley. In the email Nichols alerts other jurisdictions within the OPNET umbrella, reflecting upon the ruling by Judge Verser, any appeal of the courts decisions is likely to be unsuccessful and would definitely be costly. OPNET continued to run up costs by filing appeal after appeal in which a series of four different judges ruled against OPNET.
Steve Fager says, “we prepared a motion that exposed the government’s misconduct. Before filing this motion, as an olive branch, we gave Clallam County Sheriff Bill Benedict and Prosecuting Attorney, Deb Kelly an advance copy before filing it with the court. We were offering them a cheap way out of the mess they were in. We did this for two reasons, one to allow them to save face and the other was to avoid exposing their many mistakes to other actual ‘bad guys’ who could use our research to get out of their own legal problems. Instead of taking this olive branch in the spirit it was extended, Kelly and Benedict started throwing the entire weight and treasury of county government at us, sending the costs to taxpayers up and up and up,” Fager continued.
“Once we filed our motion we learned that senior Clallam County Deputy Prosecutor, Lewis Schrawyer was assigned full time and embedded with OPNET. This lasted for more than a year. The Government Misconduct Hearing lasted nine days. During that time there was at least one OPNET operative in the courtroom. More often than not there were several OPNET operatives in the courtroom, all on the taxpayers dime,” said Fager.
On January 9, 2013 an order was signed by the judge suppressing all ill gotten information against the Fager brothers and their private property. This should have ended the case. Instead, OPNET attempted to hang onto the Fager property under the civil asset forfeiture law. It took the Fagers another two years to pry loose their property seized by the county government.
The Fagers were forced to go to court time after time. The government lost every court decision appearing before four different judges, all ruling in favor of the Fagers. Yet the government kept filing papers and running up not only their own legal costs but also running up the Fager’s legal fees which county taxpayers ultimately have to pay.
According to Steve Fager, “On June 25, 2015 we filed a motion for our attorney fees. Instead of coming to the table and negotiating a settlement, as they should have done back in 2011, OPNET/Clallam County again chose to fight a losing battle. On August 5, 2015, after four different judges had ruled against OPNET/Clallam County, the county caused a fifth judge to rule in our favor–granting all attorney fees.”
Even then, instead of cutting their losses, OPNET/Clallam County chose to cost the taxpayers yet another $2,000 by requiring the Fager’s attorney to drive from Seattle for a ten minute hearing to solidify Judge Harper’s rulings. In this court appearance OPNET/Clallam County attorneys made not one utterance and the judge’s Order went down without change.
There can be no logical legal reason to force this one last court appearance costing the taxpayers yet another $2,000 when their lawyers had nothing to argue.
According to Steve Fager, “We never meant to cost the taxpayers money. We tried to give the county easy outs all the way through but they dug in their heels all the way and the attorney fees kept mounting. It’s a shame but change doesn’t seem to happen until after it has cost the taxpayers a ton of money.”
Fager went on to say, “They will probably try to appeal this decision too. Before we even make an argument, like chess, we consider possible future moves, and if we can’t prevail–all the way to the Supreme Court– we don’t make the argument at all. Unlike OPNET/Clallam County we can’t just keep throwing other people’s money at the problem hoping it will go away.”
Port O Call, seeking comment, provided an advance copy of this article to the Clallam County Prosecuting Attorney, Clallam County Sheriff, Clallam and Jefferson County Commissioners and City Councils for Sequim and Port Angeles, all of whom provide agents and funding to OPNET. All of whom will be on the hook for attorney fees, and any other monies that may be awarded to the Fager Brothers. (The Fagers filed a $20 million lawsuit in federal court)
None of the jurisdictions were able to respond due to ongoing legal considerations. However, Port O Call received a response from the law firm, Patterson Buchanan Forbes & Leitch, who represent the county’s “risk pool” in the Fager’s parallel 1983 Federal conspiracy suit against OPNET and Clallam County.
Their response: “Because this story relates to on-going litigation, we cannot comment on the allegations made by Mr. Fager. Mr. Fager is one of six plaintiffs who hope to benefit from a 2014 lawsuit they filed in federal court concerning these issues.”
Steve Fager replies, “This is a completely separate issue, the attorney’s fee award was for us prevailing in the unlawful civil asset forfeiture action against our property. The 1983 style conspiracy case against OPNET is much more complex and involves 5 other plaintiff’s damaged by OPNET, not just us.”
In an email received by Port O Call the following day, Patterson Buchanan Forbes & Leitch law firm claim, “The state court decided to award the Fagers’ approximately $300,000 in attorney’s fees. The parties (OPNET) disagreed with respect to the state court’s decision, and it has been appealed.”
When asked, Mr. Fager stated “None of our attorney’s received a notice of appeal, but as I previously stated, its not their money, I guess the powers that be can somehow convince the various County Commissioner’s holding the purse strings that all FIVE of the previous judges were wrong.”
(Editor’s note: When OPNET operatives busted the Fager Brothers medical marijuana operation there were 60 police officers from multiple jurisdictions on the ground to confiscate a 93 marijuana plant growing facility.)