Project Report:
Preventing law enforcement from profiting by taking private property
Purpose
- Investigates causes tending to destroy or impair the free-market system.

Summary

Civil forfeiture, the power of law enforcement to seize property under the mere suspicion that it has been involved in a criminal activity, is one of the biggest threats to private property rights in the nation today. Owners caught up in civil forfeiture proceedings do not need to be convicted or even accused of a crime to lose their property, and they typically must prove their property’s innocence in court in order for it to be returned. In addition, law enforcement agencies often get to keep a portion or all of the proceeds from these seizures, providing them with incentives to pursue property rather than criminals. The Institute for Justice is working to end this abuse of private property rights in the courts of law and the court of public opinion.

Description

In January, IJ secured a major federal court victory on behalf of Russ Caswell, whose family has owned and operated the Motel Caswell in Tewksbury, MA, for two generations. Although the Caswells have never been convicted of or even charged with a crime, local and federal law enforcement joined forces to take the motel through civil forfeiture because a handful of people committed illegal acts while guests. The Motel Caswell was a particularly attractive target for forfeiture; the property is owned free and clear and its sale would have likely netted a $1.5 million profit for the participating law enforcement agencies. After a week-long trial in November, the court invalidated the government's forfeiture claim because Russ’ family had no substantial connection to the crimes at the motel and took all reasonable steps to prevent illegal activity. Not only was the decision a complete victory that saved the Motel Caswell, it also sets important legal precedent that will help defend other property owners from similar takings.

We created a short YouTube video (located at http://iam.ij.org/caswellvideo) to illustrate just what was at stake in this case, and we continue to generate local and national news coverage of the issue. Recent placements include the Associated Press, Boston Globe, Boston Public Radio, Reuters, San Francisco Chronicle, Philadelphia City Paper, Washington Times, and Russ' hometown newspaper, the Lowell Sun.

We’re building on the momentum we generated from our win in Massachusetts with a new case in California. Our client, Tony Jalali, fled Iran in 1978 and became a successful entrepreneur, owning a modest, two-story office building in Anaheim that he rents to a half dozen tenants. During the past few years, he rented space to two different medical marijuana dispensaries, businesses that are perfectly legal in California. However, local officials, in collusion with the federal government, are accusing him of “facilitating” drug crimes so they can circumvent state law and cash in on Tony’s office building through relatively more lax federal civil forfeiture laws. But Tony has never committed a crime. Moreover, the government isn’t interested in pursuing his tenants or the patients who purchased medical marijuana, and the forfeiture notice was the first time he received any indication that there was any legal problem at the federal or local levels for renting space to a medical marijuana dispensary. California bars local and state officials from using civil forfeiture to take property unless the property owner has been convicted of a crime, and the city of Anaheim and the federal government are simply ignoring state law to pad their own budgets.

Elsewhere, we filed a petition with the Texas Supreme Court in February to review a lower court decision in our case challenging Texas’ civil forfeiture laws. Our client, Zaher El-Ali, sold a pickup truck on credit in 2004, retaining title of the vehicle until he could be paid in full. The driver to whom he sold the truck was arrested for DWI, and the truck was seized through civil forfeiture even though Ali owns the vehicle and is innocent of any crime. Not only do Texas’ civil forfeiture laws force innocent owners like Ali to prove that their property was not involved in any illegal activity, they also create a perverse incentive structure that encourages law enforcement to pursue property rather than criminals. A victory here will reinvigorate vital protections for property owners.

IJ submitted an amicus brief to the U.S. Supreme Court in Florida v. Harris, which addresses what evidence, if any, the government must introduce to establish the reliability of drug-detection dogs. Although this was not a civil forfeiture case, it offered a great opportunity for IJ to highlight the abuses of civil forfeiture. Law enforcement officials have been increasingly using drug-detection dogs to establish probable cause for searches that result in the seizure and forfeiture of cash, cars, and other property. However, numerous studies show there is a significant risk that these dogs respond to cues from their handlers or residual odors, rather than the actual presence of drugs. If an erroneous dog alert can be used as evidence to meet the burden of proof necessary to establish probable cause and the government doesn’t have to prove the reliability the alert, law enforcement will enjoy greater freedom to take property when no probable cause exists, exacerbating the profit incentive underlying civil forfeiture laws. Oral argument took place on October 31, and we released a short YouTube video (located at www.ij.org/HarrisVideo) to promote our brief and the concerns it raises.

In August 2012, IJ released a podcast, entitled “Policing for Profit: The Abuse of Civil Forfeiture.” The podcast (located at http://ij.org/policing-for-profit-audio-podcast) features IJ Senior Attorney Scott Bullock and IJ Strategic Research Director Lisa Knepper as they discuss civil forfeiture law, how it works, and some of IJ’s strategic research detailing just how widely it is abused. In addition, Scott spoke about civil forfeiture abuse on a teleforum sponsored by the Federalist Society; more than 70 people called in to listen and ask questions.

JOSH REYNOLDS FOR THE BOSTON GLOBE
Russell H. Caswell, outside his family’s motel on Main Street in Tewksbury, is awaiting a ruling on his legal battle with the US government. Photo: JOSH REYNOLDS FOR THE BOSTON GLOBE.

Purpose

Private property is one of this nation’s most cherished principles, but it is a principle under assault across the country by civil forfeiture law. Law enforcement agencies at the federal and state levels are allowed to keep some or all of their forfeiture proceeds for their own use and have an incentive to pursue forfeitures to boost their budgets. Once the police do seize a person’s property, it is very difficult for innocent owners to reclaim it and the costs involved often outweigh the value of the property, thereby discouraging individuals from standing up for their constitutional rights and enabling the government to obtain the items it seizes by default. Thus, civil forfeiture not only undermines the rights inherent in owning property, it also undermines the free market by eliminating due process legal protections for private property that are necessary for a properly functioning market-based system.

Scope

IJ’s campaign against civil forfeiture is nationwide in scope as abuse is a problem at both the federal and state levels. According to our strategic research report, Inequitable Justice, federal forfeiture revenue dramatically increased after federal agencies were allowed to keep the currency and property they seized for their exclusive use. By 2010, the U.S. Department of Justice’s Asset Forfeiture Fund stood at more than $1.6 billion. At the state level, 42 states allow law enforcement to keep some or all of their forfeiture proceeds. Our work will help secure the property rights of individuals across the country and protect innocent property owners from unlawful government takings.

Amount Approved
$10,000.00 on 6/4/2012 (Check sent: 7/2/2012)


  Related Organizations
Institute for Justice  


Policing for Profit

Attachments
Policing for Profit
FL v. Harris Amicus Brief (PDF)
JOSH REYNOLDS FOR THE BOSTON GLOBE

Address
901 N Glebe Rd #900
Arlington, VA 22203


Phone
(703) 682-9320 ext 233
(703) 682-9321 (fax)

Contacts


Beth Stevens
Institute for Justice

Posted 3/8/2012 3:48 PM
Updated   5/15/2013 11:21 AM



 
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