Arlington, Va.—For two years, Massachusetts small business owner Russ Caswell has suffered through an American nightmare.
Russ and his family have owned and operated the Motel Caswell in Tewksbury, Mass., for two generations. The motel, which Russ’ father built and the Caswells own free and clear, was supposed to provide for Russ and his wife’s retirement. But now, the Caswells may have their million-dollar property taken from them by local and federal law enforcement officials through a process known as “civil forfeiture.” If law enforcement officials succeed, the Caswells would end up with nothing and the law enforcement agencies would split the bounty through a process called “equitable sharing” in which the local agency would get 80 percent of the proceeds and the federal government would keep the rest. This money could be used to pad the budgets of police and prosecutors’ offices, thus giving it a direct financial incentive not to pursue justice, but rather to “police for profit,” which is exactly was is going on in the Caswell case.
Seeking to circumvent state law and cash in on the profits, the Tewksbury Police Department is working with the U.S. Department of Justice to take and sell the Caswells’ property because a tiny fraction of people who have stayed at the Motel Caswell during the past 20 years have been arrested for crimes. This is taking place even though the Caswells themselves have worked closely with law enforcement officials to prevent and report crime on their property. And the arrests the government complains of represent less than .05 percent of the 125,000 rooms the Caswells have rented over that period of time. Indeed, the government’s lawsuit identifies only five incidents leading to approximately 10 arrests between 2001-2009 as the basis of the forfeiture.
Worse yet, while criminals in America are presumed innocent until being proven guilty, under civil forfeiture, innocent owners like the Caswells are presumed guilty until they can prove that they and their property have done no wrong. The Institute for Justice, a public interest law firm that fights for property rights nationwide, announced today it would represent the Caswells in the defense of their constitutional rights.
“Civil forfeiture creates a perverse incentive for police to target innocent owners and their assets rather than seek justice and public safety,” said IJ Senior Attorney Scott Bullock. “No one in the United States should lose his or her property without being convicted of a crime, let alone never even being charged with a crime. Yet that is exactly what is happening with the Caswells. This case shows that fair and impartial law enforcement cannot exist as long as we allow policing for profit.”
How widespread is the problem of civil forfeiture abuse nationwide? In 1986, the year after the U.S. Department of Justice’s Asset Forfeiture Fund was created—the fund that holds the forfeiture proceeds from properties forfeited under federal law and available to be paid out to law enforcement agencies—took in just $93.7 million. Today, it holds more than $1.6 billion. A new Institute for Justice report released today titled, Inequitable Justice: How Federal “Equitable Sharing” Encourages Local Police and Prosecutors to Evade State Civil Forfeiture Law for Financial Gain, documents how the problem is growing worse. Between 2000 and 2008, equitable sharing payments from the U.S. Department of Justice to state and local law enforcement doubled from about $200 million to $400 million per year.
“Equitable sharing enables law enforcement agencies to sidestep protections in state law for property owners such as the Caswells,” said Larry Salzman, an attorney with the Institute for Justice and a co-author of the Inequitable Justice report. “It essentially makes bad situations worse by allowing local police and prosecutors to take property from citizens under federal forfeiture law when such seizures are banned by their own state laws.”
“My father built the hotel when I was a boy in 1955,” said Russ Caswell. “For decades, it has been a clean and safe place for travelers and locals who need an affordable home away from home. It is un-American that I am being treated like a criminal when my family has always worked with the police to quickly report and resolve any crime that has occurred on our property. Rather than work with us, the federal government and our local police department have blindsided us and are working to take everything we’ve worked so hard to earn.”
“Civil forfeiture creates inevitable abuses,” said IJ President and General Counsel Chip Mellor. “The Institute for Justice has documented time and again that it invites a lack of accountability, a lack of due process and a lack of constitutionally enshrined restraints on government authority. Civil forfeiture needs to end. If the government wants to take someone’s property, it should first be required to convict someone of a crime. Short of that, you will end up with what we have today in Tewksbury and elsewhere.”
For the past year, the Caswells have been defended ably by Michael O’Neil, George Skogstrom, and Tiffany Pawson, from the law firm of Schlossberg, LLC, in Braintree, Mass., who remain on the team as local counsel.