Freeman

ARTICLE

Asset Forfeiture Run Amok

Civil Asset Forfeiture Laws Must Be Reformed to Protect the Innocent

NOVEMBER 01, 1998 by LAWRENCE W. REED

Filed Under : Property Rights

Seventy-year-old Joseph Puertas and his family will never forget one cold night in December 1997 when police and drug-sniffing dogs came calling at the doors of both his home and his business and, at the same time, those of his three sons as well.

Based on the word of an “informant,” who was a self-confessed addict with two prior felony convictions, the Oakland County, Michigan, police searched all the buildings for evidence of drug dealing. They found no drugs, no drug paraphernalia, no records of drug transactions, and no other evidence of drug dealing. They did find one small plastic bag of powder, which on examination, turned out to be Slim Fast.

But the search wasn’t exactly fruitless, at least for the searchers. The Oakland County prosecutor’s office may wind up more than $5 million richer: $3.2 million from selling the Puertas family’s bowling alley, which the police seized, plus $1.9 million in cash, jewelry, and coins. A pretty good haul for a few hours’ hard work by the boys in blue.

The property seizures that December night, incidentally, did not lead to any charges or convictions. One charge was filed against Joseph Puertas based only on the dubious word of the informant—who, incidentally, may have framed the family to secure leniency on the felony charges he now faces. In any event, most of the property seized does not even belong to Joseph Puertas, but to other family members.

“They arrest my father and take from us what we have spent years working for, based on what some crackhead tells them,” Steve Puertas told the Detroit Free Press. “You tell me that’s justice?”

The newspaper’s account of how the authorities defended their action, and the response of the Puertas family’s attorney, James Burdick, is instructive:

“Why would they forgo thousands of dollars of interest they could have made if they had put their money in the bank?” asked prosecutor James Halushka, director of warrants and investigations for the Oakland County Prosecutor’s Office. “If this isn’t dirty money, why didn’t they put it in the bank?”

Burdick’s response: “Show me the law that says you have to put your money in a bank.”

Seizing property from the innocent—or at least from people who haven’t been convicted of a crime—is not always drug-related. Consider the case of John and Tina Bennis of Royal Oak, Michigan.

On October 3, 1988, police found John Bennis engaging a prostitute in the front seat of his car. Bennis was convicted of indecency and fined $250. The police then obtained a civil court order to seize Bennis’s car as a “public nuisance.”

Tina Bennis, who as John’s innocent wife endured the troubles and embarrassment that attended her husband’s indiscretion, was half-owner of the vehicle. She had helped pay for the car with her babysitting income and used it to take the couple’s five children to and from school. But the authorities refused to recognize that she had any interest in the vehicle. In a 1996 decision with far-reaching implications, the U.S. Supreme Court upheld the authority of the government to punish Tina Bennis for the actions of her husband by keeping the car.

These cases involve an alarming practice known as “civil-asset forfeiture.” Not unique to Michigan, they are occurring in every state all across America with disturbing frequency. In civil-asset forfeiture cases, the government may do little more than meet the most minimal threshold for alleging that criminal activity has taken place. No criminal charges need to be filed, and no convictions need to be gained for law enforcement authorities to seize and keep the property of citizens. Indeed, even an acquittal on any criminal charges to which seized property relates will not necessarily immunize an individual from a forfeiture proceeding. If the owner wishes to recover his property, he has the burden of showing that it was not used in the commission of a crime.

Enacted to help the government nail “drug kingpins” and other big-time lawbreakers, forfeiture laws often scoop up the homes, cars, and cash of ordinary law-abiding citizens. The police usually oppose any curbs on the practice because they normally get the cash or the profits from the sale of seized property.

Civil-asset forfeiture operates on the principle that the property, not the individual, commits the crime. This legal fiction allows the government to “punish” property, leaving the owners themselves without the rights normally available to accused persons. But the very notion does violence to these pillars of law in a free and civilized society: people commit crimes, inanimate property does not, and people are innocent until they are proven guilty.

America’s Founders understood the critical importance of property rights in preserving liberty. “No person shall . . . be deprived of life, liberty, or property without due process of law”—so says the Fifth Amendment to the U.S. Constitution. James Madison noted that “Government is instituted to protect property of every sort. . . . This being the end of government, that alone is a just government which impartially secures to every man, whatever is his own.” Without a doubt, Madison and his colleagues, were they to witness property seizures under today’s civil asset forfeiture laws, would decry the practice as reminiscent of the very tyrannies they and others once pledged their “lives, fortunes and sacred honor” to prevent.

Ending the government’s senseless and counterproductive war on drugs would go a long way to stop the majority of today’s most offensive forfeitures, but one does not have to be in favor of drug legalization to see the need for an array of legal reforms. In a recent study done for the Mackinac Center for Public Policy, Donald Kochan suggests:

  • Enacting protections for the innocent. Language in forfeiture statutes should be strengthened to ensure that property owners who have not participated or acquiesced in a crime committed with their property are not punished with forfeiture.
  • Shifting the burden of proof from property owners to the government. Governments at all levels should be required to prove that disputed property is in fact connected to illegal activity before it can be seized.
  • Removing financial incentives for law-enforcement agencies to employ asset forfeiture. The cops shouldn’t keep what they swipe.

John Adams advised that “Property is surely a right of mankind as real as liberty.” The innocent victims of forfeiture-laws-run-amok can certainly attest to the fact that the seizure of property is equivalent to the loss of liberty. The rest of us ignore their plight at our own peril.

ASSOCIATED ISSUE

November 1998

ABOUT

LAWRENCE W. REED

Lawrence W. (“Larry”) Reed became president of FEE in 2008 after serving as chairman of its board of trustees in the 1990s and both writing and speaking for FEE since the late 1970s. Prior to becoming FEE’s president, he served for 20 years as president of the Mackinac Center for Public Policy in Midland, Michigan. He also taught economics full-time from 1977 to 1984 at Northwood University in Michigan and chaired its department of economics from 1982 to 1984.

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