(c) 2011, Brenda Grantland, Esq., updated 2/15/2011
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I defended my first asset forfeiture case in 1983, in Washington
D.C. I had been in practice less than a year when I took on the criminal case of a Jamaican-American
man who, along with his wife, was charged with distributing
marijuana. The police were claiming that someone was selling
marijuana from an "herb gate" (an opening in a window) in
the English basement of my client's house. The police said sales were going on all day, with customers lined up on the
sidewalk, but they didn't know the identity of the seller. A
man's voice would be heard and his hand would reach through the opening in the window and make
the transaction. The window was covered over in such a way that
the man's face could not be seen. The problem with the
government's theory was that my client and his wife both worked in the
day time. My client's son was visiting from Jamaica during the
period the sales occurred, and the police arrested him along with his
parents, but they released him and he fled, never to be
apprehended. Both of the parents were American citizens, had good jobs, good reputations,
and made a good living. The wife worked for the federal government and
had a high level security clearance. There was no reason for
the police to jump to the conclusion that the parents were involved
-- especially after taking a good look at the son, who was in his
mid-20s and sported dreadlocks -- except that the couple had ten or
fifteen thousand dollars in cash in their house, which the police
At trial in the criminal case both clients
testified about how they saved cash from their earnings each week using the Jamaican "pardner" informal banking system.
had just collected the "draw" and were planning on using it to go
on vacation. We had an expert witness on Jamaican culture who
testified about this Jamaican custom. The jury acquitted
them. Then the couple hired me to get
their money back.
I felt certain that, given the jury acquittal,
getting the money back should be a cinch. After all -- it's
double jeopardy, right? I soon learned that asset forfeiture has
a long tradition of defying every constitutional right we thought we
had. The court rejected my double jeopardy argument based the
Supreme Court case One Lot Emerald Cut Stones v. United States,
409 U.S. 232 (1972). A few months later the Supreme Court rejected the double jeopardy argument again in United States v. 89 Firearms,
354 (1984). Eventually I won their forfeiture case on the merits. Soon other
criminal lawyers began referring their clients to me for their forfeiture cases.
was still a virtually unknown legal process in the
mid-1980s, but it soon became wildly popular with police when
amendments to the statutes allowed law enforcement agencies to keep the
In the early
days of the D.C. forfeiture statute, corruption was rampant and
due process abuses were the rule, not the exception. In case
after case, cars and money were seized on flimsy or no evidence, or
blatantly illegal searches and seizures -- and the property was held
for up to a year without
court hearings or even a pending case in which one could file a motion
and get before a judge. The statute had a one-year statute of
limitations -- allowing the government to confiscate and then wait for
an entire year before even
filing a forfeiture case. The statute's ban on
the writ of replevin prevented property owners from filing civil
actions to get their property back. To make matters worse, D.C. Superior
Court had a severe trial calendar backlog, and civil cases came last,
so forfeiture victims got their
first possible jury trial date years after the case was
commenced. In the midst of all
this confusion and delay in the court system, the forfeiture
prosecutors' office's slipshod notice practices resulted in many cases in which the government obtained default
judgments without giving proper notice to the property owner, and cases in
which the government let its statute of limitations
run without filing a forfeiture action and then refused to give it back.
This was all happening to working class people -- most often minorities --
and quite often the owner was a third party not even suspected of the
crime -- some family member or friend who loaned out the car.
While their cars sat deteriorating at the impoundment lot, the owners
had no vehicle to drive to work. Often, car payments were coming
due, forcing owners to capitulate and accept ridiculously unfavorable
settlement offers despite the merits of their cases.
Because of these practices,
in 1987 Landon Dowdey and I filed a class action
suit against D.C. under 42 U.S.C. § 1983 -- the civil
rights statute -- challenging various abusive practicies and demanding
the right to prompt post-seizure hearings in forfeiture cases.1/
case began my career-long challenge to the unfairness, corruption,
and constitutional deficiencies of asset forfeiture. Unfortunately,
abuses such as those seen in D.C. in the 1980s are still seen in
scattered pockets across the United States.
In my 28+ years of forfeiture
litigation I have handled hundreds of forfeiture cases, involving a
wide range of issues, including:
For years I have spoken, consulted and lobbied for legislative reform of the forfeiture laws, including:
- established the right to a prompt, post-seizure hearing when property is seized warrantlessly - I won this issue in the
D.C. civil rights case, Patterson v. District of Columbia, but the D.C.
courts are apparently ignoring the decision now.
- proportionality or "Excessive Fines Clause"
- I first raised the Excessive Fines clause as a defense in 1989, in a
case seeking forfeiture of real estate for a small amount of drugs. The
U.S. District Court judge said the argument was
frivolous. "Zero Tolerance" was all the rage then. In 1993,
the Supreme Court relied on the Excessive Fines clause to strike down a
disproportionate forfeiture in Austin v. United States,
(1993). Since Austin was decided I have won a number of favorable
outcomes based on a disproportionality theory -- allowing the property
owner to pay a proportionate portion of the value instead of losing the
a remedy under the Fifth Amendment
"takings" clause for a lienholder who had been deprived of
compensation for its lien when the property was criminally
forfeited. (At that time, the criminal forfeiture statute had no
procedures allowing lienholders to protect their interests.) We won after 11 years of litigation. The
court required the government to pay the lienholder "just compensation"
for the "taking" of the mortgage, including interest, late fees and attorneys fees.
- extensive appellate and post-conviction
litigation on forfeiture and double jeopardy (much of it was rendered
obsolete by the Supreme Court decision United States v. Ursery , 518 U.S. 267
- litigated various standing and ownership
issues, including spouses whose names are not on title, constructive
trust, resulting trust
- established a pretrial remedy for third parties in criminal
forfeiture cases to preserve the property pending trial
- overturned default judgments where the government failed to give adequate notice and opportunity to be heard
- litigated various issues regarding the proper method of computing and/or proving fair market value
- litigated various issues regarding the release of seized assets to pay criminal defense counsel fees
- litigated various issues regarding the
statutory right to attorneys fees for prevailing parties (under Uniform
Relocation Act, CAFRA, and Civil Rights Act)
Publications on asset forfeiture written or co-authored by me:
- In 1992 I became an active member of Forfeiture Endangers American Rights.
Since its incorporation I have served on FEAR's board of directors,
generally as board president. I contributed articles to the FEAR
Chronicles newsletter, the FEAR website, donated numerous pleadings to
FEAR's brief bank, co-authored two FEAR books, and appeared in
Forfeiture 101, a 2-hour CLE crash courseon federal forfeiture law and procedure.
- I spoke at the House Government Operations
Committee hearing on forfeiture abuses and at FEAR's post-hearing press
conference in October 1992, and drafted FEAR's position paper which was
released that day.
- Beginning in 1992, I consulted with Rep. John
Conyers (D. Mich.) and the late Rep. Henry Hyde (R. Ill.) as they
drafted, introduced and redrafted a series of forfeiture reform bills,
over a period of eight years.
When our forfeiture reform bill -- the Civil Asset Forfeiture Reform
Act of 2000
("CAFRA") --passed in 2000, Representative Hyde thanked FEAR and me in his speech to
- I consulted with then
California Assemblyman John Burton on his bill to reform California's
forfeiture laws (AB-114), which passed in 1994 and is still in effect.
- I was frequently interviewed for newspaper and
magazine articles and on numerous radio and television programs,
including Aaron Russo's Mad as Hell, a documentary by Aaron Russo (producer of
the feature films Trading Places and The Rose). I consulted on a number of major newspaper forfeiture exposes including Presumed Guilty (Pittsburgh Press 1991), Gary Webb's The Forfeiture Racket, Karen Dillon's forfeiture series in the Kansas City Star.
- Your House is Under Arrest - (c) 1993 Society for the Preservation of Wealth (out of print)
- Forfeiture and Double Jeopardy - coauthored with Jeffrey Steinborn and others,
by FEAR Foundation, (c) 1994, 1995, 1996 (out of print)
- Asset Forfeiture Defense
Manual - coauthored with Judy Osburn and Susan Raffanti, published by FEAR Foundation (c) 2002 (available for purchase on the FEAR website)
- Forfeiture 101 - a 2 hour DVD crash course in forfeiture law, with Judy Osburn (available for purchase on the FEAR website)
1/ The case
ended in 2010 after 23 years of litigation. In 1989 we won a
ruling on summary
judgment that claimants whose property was seized had a right to a prompt post-seizure
probable cause hearing.
After six years of litigation the last remaining plaintiffs got
settlements for money damages in 1992. Then we spent 17 years
petition for attorneys fees under the Civil Rights Act. As I long
suspected would happen, the D.C. courts eventually found a way to avoid
District pay our attorney's fees. But
that's a story for another day, and maybe I shouldn't tell it, because
discourage some optimistic lawyer from taking up an important civil
2/ See the Congressional Record for April 11, 2000, p. H2046.