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Asset Forfeiture

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(c) 2011, Brenda Grantland, Esq., updated 2/15/2011

Copyright notice:  This article may be linked to, emailed, printed, and disseminated to others so long as it is done free of charge, without changes to the text, and with this copyright notice included.  However, this article may not be republished for sale, either by itself or as part of a compilation of other material, without written permission from the author.



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 seized.

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.  They 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, 465 U.S. 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.

Asset forfeiture 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 proceeds of forfeiture. 

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 after 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/  That 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:
  • 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" defense - 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, 509 U.S. 602 (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 entire property.
  • established 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 (1996)
  • 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)
For years I have spoken, consulted and lobbied for legislative reform of the forfeiture laws, including:
  • 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 Congress.2/
  • 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.
Publications on asset forfeiture written or co-authored by me:
  • 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, published 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 litigating our 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 making the District pay our attorney's fees.  But that's a story for another day, and maybe I shouldn't tell it, because it might discourage some optimistic lawyer from taking up an important civil rights case.

2/  See the Congressional Record for April 11, 2000, p. H2046.