IJ Puts Civil Forfeiture on Trial

John Kramer
John Kramer · October 31, 2012

Arlington, Va.—The most contentious civil forfeiture fight in the nation will be the subject of a week-long trial starting Monday, November 5, 2012, in Boston. Throughout the week, the Institute for Justice, which represents the property owners in the case, will expose the ugly practice of civil forfeiture—where law enforcement agencies can pad their budgets by taking property from innocent owners who have never been convicted or even charged with a crime.

The trial will start at 10 a.m. at the John Joseph Moakley U.S. Courthouse, 1 Courthouse Way in Boston. The case of Tewksbury, Mass., motel owner Russ Caswell and his wife will be presided over by Magistrate Judge Judith G. Dein in Courtroom 15. At the heart of the trial will be the protections afforded innocent owners, like the Caswells, when faced with the loss of their property.

All Russ and his wife want is to peacefully operate their motel. But because their property was worth one million dollars and carried no mortgage, and because a handful of drug crimes had taken place on the property over 20 years (which represent less than .05 percent of the 125,000 rooms the Caswells rented over that period of time), the federal government is trying to take the Caswell’s property through civil forfeiture, sell the land and keep the money. Under a process known as “equitable sharing,” the federal government would keep 20 percent of what they net and the local police department would pocket 80 percent. Russ and his wife stand to lose everything they worked their lives to build.

“The Caswell case epitomizes everything that is wrong with our nation’s civil forfeiture laws,” said Scott Bullock, senior attorney at the Institute for Justice. “People who are never even charged let alone convicted of criminal wrongdoing can face the loss of their homes, cars, cash, or, like with the Caswells, their entire business and livelihood.”

“This outrageous forfeiture action should never have been filed in the first place,” said Larry Salzman, an IJ attorney. “What the government is doing amounts to little more than a grab for what they saw as quick cash under the guise of civil forfeiture. Our goal in this case is to not only spotlight the inevitable abuse that transpires when law enforcement agencies are allowed to use civil forfeiture, but to set a precedent that will end this nightmare for the Caswells and stop an abuse of power that has ruined the lives of too many innocent Americans.”

Russ said, “I think it is quite obvious why the federal government has come after us and not other businesses. We own a million-dollar property with no mortgage, so anything they get here, they get to keep for themselves. This case took a huge financial toll on our family before the Institute for Justice stepped up to defend us. And it continues to put a huge personal strain on both me and my wife. At this point in our lives, we should be thinking about our retirement. Instead, we have to take on this fight to save our business and make sure that it won’t happen again to the next generation that comes along.”

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. An Institute for Justice report, 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.

“The Caswells have always worked hard to prevent and stop crime on their property and they have no criminal record whatsoever,” said Darpana Sheth, an IJ attorney. “Indeed, the police admit that the Caswells have no involvement in crime. To take property away from someone who has never committed any crime is fundamentally wrong and un-American.”

IJ President and General Counsel Chip Mellor said, “The Institute for Justice has documented time and again that civil forfeiture 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 that person of a crime. Short of that, you will end up with what we have today in Tewksbury and elsewhere.”