Institute Challenges Forfeiture Abuse Nationwide

By Scott Bullock

IJ’s fight against civil forfeiture—where the government can take private property regardless of whether an owner has been convicted or even arrested for criminal activity—took us to federal court in Boston in February.  There, we represent the owners of the family-owned Motel Caswell in Tewksbury, Mass.  In a case that exemplifies everything wrong with civil forfeiture, the U.S. Attorney has teamed up with the local police department to take away the life’s work of the Caswells because a handful of people over a several-year period engaged in drug sales at the motel.  (To be exact, .05 percent of the more than 100,000 rooms rented over 20 years.)  The government admits that the Caswells had no knowledge of or involvement in any illegal acts.  Still, the Caswells could lose their entire business and property with no compensation whatsoever.

Capitalizing on the U.S. Supreme Court’s decision last year in Bond v. U.S.—which held that citizens, not just state governments, can make claims under the Tenth Amendment—we challenged the “equitable sharing” program of the federal government, which is behind the Caswell case.  The program permits local law enforcement agencies to do an end-run around state law and work directly with the federal government to take property through civil forfeiture.  The federal government and the local police department then split the revenue gained.  We sought dismissal of the forfeiture of the motel on the ground that it violates the excessive fines clause of the Eighth Amendment.  Combining our work on economic liberty and forfeiture, we argued that forfeitures cannot be so severe as to deprive people of their livelihood, which is exactly what would happen to the Caswell family.  If we do not get the forfeiture action dismissed now, we will go to trial against the U.S. Attorney’s office during the summer.  We will do everything in our power to save this property and the rights of the Caswell family.

Last year, we successfully forced Georgia law enforcement agencies to abide by state disclosure laws on forfeiture and we are currently litigating a forfeiture challenge in Texas on behalf of another innocent property owner.  In addition to our litigation, IJ’s Legislative Director Lee McGrath co-authored model forfeiture reform legislation.  It replaces civil forfeiture with criminal forfeiture and restores the fundamental American principle that people should not lose their property unless they have been convicted of a crime.  Our model has been endorsed by groups as diverse as the National Association of Criminal Defense Lawyers and the conservative American Legislative Exchange Council.  And IJ’s expertise is being called on in various state legislatures even as we pursue similar reforms at the federal level.  Already in March of this year, in an effort led by IJ, both houses of the Minnesota legislature passed important state forfeiture reforms and the governor signed the bill into law.

IJ’s landmark 2010 forfeiture study, Policing for Profit, kicked off our forfeiture campaign and has been cited repeatedly in news stories on forfeiture abuse and an Indiana Supreme Court ruling halting an unjust forfeiture.  Our strategic research team followed up that report with other studies dissecting forfeiture abuse in Texas, the outrageous equitable-sharing/kick-back program of the federal government, and the lack of disclosure by Georgia law enforcement agencies of forfeiture revenue.  In a mere two-year period, IJ has become the “go to” source for reporters and others who want to examine these abusive laws.

Look for more lawsuits, legislation, strategic research, activism and media relations against forfeiture abuse in the coming year!

Scott Bullock is an IJ senior attorney.

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