Civil forfeiture law could result in hotel owners losing their business

By Brent Daggett

Contributing writer for End the Lie

Drug Enforcement Administration agents conduct a training exercise (Image credit: TickletheWire)

For nearly three decades, Russell and Patricia Caswell have been the owners and operators of Motel Caswell in Tewksbury, Massachusetts.

However, if the U.S. Drug Enforcement Agency (DEA) and the Tewksbury Police Department have their way, the Caswell’s property could be gone due to civil forfeiture.

Note: be sure to check out Brent’s other recent articles on jury nullification and ballot access issues for third parties.

Civil forfeiture essentially means the government can take or even sell your property and not even charge you with a crime, let alone convict you of one.

The interest on the part of the DEA and Tewksbury police surrounds some of the guests who over the past 20 years have been arrested for crimes.

Out of the 125,000 rooms rented out during this time span, only 19 arrests have occurred, which is quite obviously a ludicrously low percentage of the total guests.

“I think it is quite obvious why the federal government has come after us and not other businesses,” said Russell “We own a million-dollar property with no mortgage, so anything they get here, they get to keep.”

The Caswells will have the libertarian public law firm Institute for Justice (IJ) in their corner when the trial gets underway on November 5 in Boston.

“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 will also be challenging the equitable sharing program, arguing it violates the 10th Amendment on the grounds that it creates incentives for local agencies to evade state law.

The Caswells are not the only individuals to be victims of civil forfeiture.

According to a 2011 IJ report by Dick M. Carpenter II, Ph.D., Larry Salzman and Lisa Knepper,  Inequitable Justice: How Federal “Equitable Sharing” Encourages Local Police and Prosecutors to Evade State Civil Forfeiture Law for Financial Gain, the abuse is running rapid.

As stated by the authors, equitable sharing is a federal law enforcement practice allowing for local police and prosecutors to circumvent the civil forfeiture laws of a state for financial gain.

During the years of 2000 and 2008, the U.S. Department of Justice saw their equitable sharing payments from state and local law enforcement increase from $200 million to $400 million.

The report also explains that as much as 80 percent of the proceeds are returned to the seizing agency.

While the study has a wealth of information and is too comprehensive to reproduce (I encourage all to read the entire document), here are some tidbits which are worth mentioning:

Table 2: Innocent Owner Burden in State Civil Forfeiture Laws

Owner must prove innocence Alaska, Arizona, Arkansas, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming
Depends on property Alabama, Indiana, Kentucky, Maine, New Mexico, Utah
Government must prove guilt California, Colorado, Florida, Kansas, Michigan, Oregon

Besides the Caswell trial, the IJ has fought other cases involving private property:

  • Van Meter v. Turner—IJ represented Georgia citizens to hold local law enforcement agencies—the Atlanta Police Department, Fulton County Police Department and Fulton County Sheriff—accountable under Georgia’s forfeiture reporting law. Georgia law requires that law enforcement agencies publish a report each year of all forfeitures they conduct and indicate how the money they receive is used. Despite the clear legal requirement to do so, these agencies never made such information public until IJ brought them to state court.
  • State of Texas v. One 2004 Chevrolet SilveradoThe State of Texas took the truck of an innocent owner through civil forfeiture and refused to give it back. To right this outrage, and attack various unconstitutional aspects of Texas’ civil forfeiture laws, the Institute for Justice is representing small businessman Zaher El-Ali, a man the state admits had nothing to do with the alleged criminal activity that led to his truck’s seizure.
  • Utahans for Property Protection—IJ represented a group of Utah citizens that filed a “notice of claim” with the attorney general of Utah, successfully forcing him to take immediate action to secure the return of the funds for forfeitures that should have gone to public education.
  • Wells v. City of Riviera Beach The Institute for Justice successfully defeated an attempt in Riviera Beach, Fla., to abuse its power of eminent domain and displace more than 5,000 residents for a massive private development project that included a yacht marina, luxury condominiums and upscale hotels.
  • City of Norwood v. HorneyIn a resounding repudiation of the U.S. Supreme Court’s decision in Kelo v. City of New London, the Ohio Supreme Court unanimously ruled in July 2006 that the city of Norwood acted unconstitutionally in its efforts to abuse eminent domain and take the homes of the Institute for Justice’s clients for a privately owned mall.
  • Kelo v. City of New LondonJust three years after the landmark U.S. Supreme Court ruling in Kelo v. City of New London, which allowed private property to be taken for economic development, 43 states have tightened their restrictions on eminent domain. In 2007, IJ client Susette Kelo’s little pink cottage—the home that became a national symbol of the fight against eminent domain abuse—was moved so that it would not be demolished by the government’s wrecking ball.
  • Casino Reinvestment Development Authority v. BaninIn a classic David versus Goliath battle, the Institute for Justice scored a major victory for property rights in July 1998 when the New Jersey Superior Court ruled a state agency could not condemn widow Vera Coking’s home of 37 years through eminent domain and give it to Donald Trump for his private development.”

Hopefully, there will be a pleasant outcome for the Caswells and if that occurs, maybe a trend of rewriting civil forfeiture laws across the nation will become commonplace.

“The Institute of 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,” said IJ President and General Counsel Chip Mello.

Edited by End the Lie

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8 Responses to Civil forfeiture law could result in hotel owners losing their business

  1. waimeajim November 1, 2012 at 10:31 PM

    That is why I tell everyone that it is cheaper to rent than to own a home.
    1. The landlord pays for all maintenance, on the property.
    2. The landlord pays for insurance to insure his property. The renter can get low cost renters insurance.
    3. The landlord pays all State, County and Local Taxes.
    4. The landlord pays for all sewer fees.
    5. The landlord pays all special assessments in a Condominium.
    6. If the landlord keeps raising the rent, you can always find another place to stay.
    7. If you like moving from place to place, all you have to do is store your property temporarily.
    8. Renting teaches you to live simply, and not accumulate junk
    9. Money that is used to pay the mortgage only makes the bankers rich.
    10. Homes are overpriced, and built to a building code standard of D-.
    11. Realtors rip off the buyers in commissions by doing a D- job. So do the Home inspection services.
    12. Insurance company’s reimburse property owners cents on the dollar when the homeowner files a claim (depreciation)
    13. Try collecting for flood damage from a hurricane from an insurance company.
    With these kinds of civil forfeiture Laws that allow the Government to seize your property, it makes no sense to own a property.
    It is another one of those Urban Myths that has been perpetuated by the Bankers, Realtors, Insurance Companies, and the Government.

    Reply
  2. abitdodgie November 2, 2012 at 11:37 AM

    If you look at your Deed you will see that you are listed as a tenant , unless you have the land patent updated into your name you are just renting so they can do whatever they want .

    Reply
  3. Zeathaminor November 5, 2012 at 7:12 AM

    So the idea is this let everyone rent no one own …because the only people who you should own .. have multiple sky scrappers (by the time americans with quasi-patroitism take over everything like your reserve bank your kids will swear for you on your tomb stone)

    Reply
  4. Pingback: POLICING FOR PROFIT: Feds try to take innocent elderly couple’s Mom-and-Pop motel « RubinoWorld

  5. Anonymous November 10, 2012 at 9:16 PM

    civil forfeiture = code for the gov stealing your shit

    Reply
  6. Anonymous December 10, 2012 at 10:44 AM

    Police Asset Forfeiture Squads Out of Control!
    Like a spreading plague, media reports of Police using Civil Asset Forfeiture to seize property from innocent owners is frightening off buyers of motels, bars, restaurants; residential rental property. Investors and property owners increasingly believe they are sitting ducks for police to confiscate their property. Investors have noted the publicized civil asset forfeiture of Motel Caswell by Federal & Local Law Enforcement Agencies from the Caswell family that owned and operated the motel for two generations. The Caswells cooperated with police to abate infrequent drug problems at their motel caused by guests. This family Motel was free and clear and provided police a target for asset forfeiture. See: “United States v. 434 Main Street, Tewksbury, Mass.”
    Bars, restaurant and rental property owners increasingly fear police; strongly believe police can make it a point—to shut down or seize any bar, restaurant, motel or residential rental property by arresting a customer or tenant unbeknownst to the owner—possessing or distributing drugs; or by undercover police / informants steering drug sales or buys onto private property to forfeit it. Some owners of bars, restaurants and rental property have become police informants, report on their customers—in the erroneous belief police won’t target their business or property. There are more than 350 laws and violations that can subject property to government asset forfeiture. Government civil asset forfeiture requires only a civil preponderance of evidence for police to forfeit property, little more than hearsay. No one need be charged with a crime. Corrupt Police can create hearsay. If police civil forfeiture abuse is not brought under control it is foreseeable many Americans will be afraid to own real and personal property that comes in contact with the public.
    It is understandable more business and rental property owners fear police. Almost every week, national news reports police, including high-ranking police and sheriffs being arrested for selling drugs, robbing, extorting or protecting drug dealers, planting evidence; and perjury to send innocent persons to prison.

    Reply
  7. martykirkpatrick May 2, 2013 at 8:11 AM

    Police are in the end, human beings,subject to the effects of greed… just like politicians who are responsible for legislating the laws that defend these injustices. If the laws were changed to where there has to be a crime committed, it would be easy for police to invent a crime to implement seizure. since 9-1-1-,americans have had their rights eroded until we are guilty until we can prove that we are innocent. Just try to prove your innocence in a U.S.court of law…unless you 1. are a lawyer 2. have untold sums of money 3.are a cop,or4. flee chaces are you will be proven guilty by means of a cops word over your own..we have lots of empty private prisons that need to be filled! cops are the only ones who seem to be bucking the recession trend..how is this so? Most are high school bullies with a chip on their shoulders.. but they all seem to be living well above their means, while getting away with behaving like storm troopers. free cars, free rent ,free drugs,you name it, they have it.While you have none of these, and are guilty of some made up infraction of the law. So wear your seatbelt america we have to find some way to facilitate this kind of police behaviour!

    Reply
  8. Sven November 5, 2013 at 8:02 PM

    The answer to civil forfeiture may well be revolution. Will it happen? I don’t know. Should it happen? Well, I’m not 100% sure the time has come. But would the founding fathers have put up with even a fraction of what Americans put up today? Obviously not. They would have stormed the White House by now and set up a new free republic. Think about it. Maybe, just maybe, Jefferson would have said something like this: “Do not talk to the police. And don’t vote, except for someone who proves he or she is for our rights. Don’t join the armed forces or the police. Join a militia instead. Get trained to fight the tyrants in government at all levels.” Are we there yet? Maybe. It sure looks like it to some.

    Reply

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