Innocent Owner Protections
The second core problem with civil forfeiture laws graded by this report is that they often turn the burden of proof on its head by forcing third-party owners to prove their own innocence to get seized property back. In other words, if a person’s property is seized because someone else used it to commit a crime, the innocent owner is often required to prove they neither knew about nor should have known about the criminal use of their property.
The problem of innocent owners is real and not uncommon. The U.S. Supreme Court dealt with it in the infamous 1996 case Bennis v. Michigan, which involved a classic third-party innocent owner: a woman whose family car was seized for forfeiture when Detroit police caught her husband in the vehicle with a prostitute. The woman, Tina Bennis, contested the forfeiture on the ground that she did not know about her husband’s extracurricular activities and should not be punished because of them. Sadly, the Supreme Court ruled against her, finding that the Constitution’s Due Process Clause did not forbid taking property from blameless people because of other people’s crimes and that states did not have to provide an innocent owner defense. 1
In response to this and other manifest injustices, Congress passed the Civil Asset Forfeiture Reform Act in 2000. Among other modest reforms, CAFRA created the federal innocent owner defense. 2 Most states also now provide an innocent owner defense under their own laws.
To be sure, an innocent owner defense is better than no innocent owner defense. However, it is hardly a guarantee that innocent owners will get their property back. To avail themselves of the defense, innocent owners first must get to court—a daunting proposition, as we detail in “Civil Forfeiture and Due Process.” If they do get to court, in most states and at the federal level, they will find that the government does not have to prove they knew or should have known their property would be used in a crime. Instead, they will bear the almost impossible burden of proving the reverse.
This is essentially what happened to IJ client Arlene Harjo.
In 2016, Arlene’s car was seized by Albuquerque police because her son allegedly drove it while intoxicated. To have a chance at getting her car back, Arlene was required to pay a $50 fee to request an administrative hearing within 10 days of the seizure. Before the hearing, the city offered to return the car if Arlene paid thousands of dollars and agreed to have it immobilized via a wheel clamp for 18 months.
After rejecting this offer, Arlene received an administrative hearing before the city’s chief hearing officer, whose job it was to determine whether there was probable cause for vehicle seizures and, in cases like Arlene’s, whether third-party owners could prove their innocence before the city filed a forfeiture complaint in court. The officer ruled against Arlene because her son had previous DWI convictions, even though the convictions were years in the past and he had borrowed her car dozens of times without incident. Arlene’s trust in her son was “misplaced,” the officer told her.
Arlene is far from the only innocent owner whose vehicle got caught in Albuquerque’s dragnet.
For years, the city operated a vehicle forfeiture program, netting thousands of vehicles (and, by auctioning them off or ransoming them back to their owners, converting those vehicles into millions of dollars). 3 By the city’s own reckoning, almost half belonged to third-party owners. 4 The city even kept the program going after New Mexico abolished civil forfeiture in 2015. 5 Finally, in 2018, after Arlene and IJ sued Albuquerque over the vehicle forfeiture program, a federal court struck it down as unconstitutional both because it created an unconstitutional incentive to seize and forfeit, as noted above, and because it put the burden of proof on owners like Arlene instead of the government. 6
Unfortunately, most states and the federal government persist in providing poor protections for innocent owners. See Figure 2. Twenty-five states and the federal government put the burden on third-party owners to prove their innocence to get their property back. Another six states also put the burden on owners, but not for all types of property. The remaining 19 states and the District of Columbia put the burden of proof on the government.
Figure 2: Innocent owner burdens in civil forfeiture laws
