Thursday, July 26, 2012

When the state sues your car: Asset forfeiture follies

At the Houston Press, Craig Malisow has a feature on a pair of asset-forfeiture cases, including a constitutional challenge to the practice pending in Texas' 14th Court of Appeals brought by the Virginia-based Institute of Justice. (See also a sidebar accompanying the story.) Grits has long been critical of the fact that the state may seize property in cases not only where there's been no criminal conviction, but even after defendants were acquitted, and the article's opening depicts just such a case - a fellow acquitted in June of a variety of gun and money laundering charges who still couldn't retrieve all his property. (The state ultimate settled the civil litigation, returning the money but not his firearms or prescription medication.)

Prosecutors in the story are quoted saying things like, "There are sufficient checks and balances to make sure that the state does not overreach when it comes to these types of offenses," but it's frankly hard to see where those "checks and balances" come into play since the law places the burden on property owners to prove they're an "innocent owner" as opposed to forcing the state to prove guilt. However:
undue burden-shifting [is] a contention [prosecutor Karen] Morris calls "a harebrained, illogical argument." She says the innocent owner claim is an affirmative defense — akin to a claim of self-defense by a criminal defendant in a homicide case — and as such, the burden naturally falls on the person asserting the claim. Therefore, any fuss about burden-shifting is simply smoke and mirrors.
"I mean, it sounds great; it makes really good news," Morris says. "It makes quite a story and it sounds very inflammatory, but when you get down to the nuts and bolts of the legal explanation, that's when people go, 'Oh, yeah, I can see that.'"

Attorney [Brad] Frye can't see that.

Despite Morris's example of the self-defense assertion in a criminal case, Frye says the innocent owner defense is not truly an affirmative defense — it's a freak of nature.

"Under Texas law," he says, "'innocent owner' has no analogy."

This is largely because it's the property itself — not a person — that's being accused of a crime, and unless a seized Chevy suddenly becomes sentient, it can't defend itself.
Further, the proceedings take place in civil court and involve a lower standard of proof - "preponderance of the evidence" as opposed to "beyond a reasonable doubt").  That's part of why Grits doesn't buy the analogy to self defense in homicide cases, where the burden of proof for the state is much higher. In a homicide, self defense becomes an affirmative burden because someone was actually harmed and there's an ostensible victim. But if there's no crime, and no victim, placing the proof burden on the property owner IS an undue burden because there's no countervailing justice interest. Plus, the evidentiary standard for asset seizure is much lower than required for a criminal conviction: A "preponderance of the evidence" (more likely than not) requires scarcely more than credible supposition, not actual proof.

Another critical difference: If you're accused of a crime you're entitled to have the state pay for a lawyer if you can't afford one. If the state sues in civil court, though, the legal actions are titled things like "State of Texas v. One Ford F-250, One 2005 Cadillac Escalade and One 2009 Polaris 850 4-wheeler." Your Ford F-250 doesn't have a Sixth Amendment right to counsel. The burden is on the property owner to either pay for a lawyer to contest the seizure or simply lose their property. While some people routinely keep receipts and records for everything, for others, that burden will be untenable.

The plaintiff in the case at the Fourteenth Court of Appeals - where oral arguments took place in April - had leased a vehicle to someone with multiple drunk driving convictions, and Harris County seized the vehicle on the pretext that the owner "knew, should have known or purposefully avoided knowing that [the lessee] had a history of drunk driving." That case, brought by a libertarian think tank, is challenging the fundamental constitutionality of asset forfeiture as opposed to relying on the "innocent owner" defense. Malisow thinks they may have picked a poor poster-child as plaintiff: The fellow had a 12-year old misdemeanor domestic violence conviction he failed to disclose and changed his story about how much money the lessee owed him. But since the court is considering the constitutionality of the law instead of an "innocent owner" defense, that may not matter.

Grits doesn't oppose seizing criminal assets, but I do think the state should be required to prove they're criminal assets by the same standard they must prove a person committed a crime in order to secure a conviction. Preponderance of the evidence is too low -- too arbitrary -- and opens the doors for abuse even if most DAs use the law as it's intended.

See prior related Grits posts:


Anonymous said...

It's ripe for abuse beyond imagination. Just look what happened in Shelby County. That is not the only county where abuses have occurred. The state should have to prove their case to seize your property.

Anonymous said...

I'm curious as to why you think the burden of proof in an asset forfeiture case should be any different from any other civil case? For example, the burden of proof is "preponderance of the evidence" in almost all personal injury cases, medical malpractice cases, motor vehicle collision cases, etc. Ultimately, they are suits to recover either property or money which is far different from convicting someone of a crime and locking them up.

Gritsforbreakfast said...

9:13, the state has no legitimate property claim on the assets in forfeiture cases in the sense that they had a prior ownership interest, contractual stake, etc.. It's being used as a backdoor route to punishment, which as in criminal law should require proof beyond reasonable doubt.

Anonymous said...

Grits the whole concept of an "in rem" action goes back centuries to where "the Crown" seized pirate vessels used for criminal purposes under maritime law. In America, that concept transferred over to a recognition that society had a right to seize property used to facilitate criminal activity. Although the suit is instituted by the government (as a reprsentative of the people), it is really all of us that benefit. First, it removes the property from the criminal's use. Secondly, the forfeiture can, in many instances, provide a financial benefit to our government and, indirectly, taxpayers.

The whole "innocent owner" defense typically only comes into play when property (in most instances vehicles) are clearly being used for a criminal purpose but a third party owner claims that he/she didn't know about that criminal purpose. That's one reason drug smugglers commonly rent vehicles or borrow other people's cars to transport dope. The innocent owner's defense is really not that hard to prove for a truly innocent owner, e.g., a commercial rental car company.

You might be interested to know that there are several Texas court cases which have held that the value of the property forfeited was so disproportionate to the degree of the crime that the forfeiture actually was "punishment" for double jeopardy purposes, at least.

Anonymous said...

One simple safeguard would solve the whole problem. Have any funds resulting from a seizure be dedicated to indigent defense or healthcare.

Anonymous said...

I don't have a problem with assets being seized in the wake of a criminal conviction, but we've got municipalities that seize assets and then never even charge the supposed criminal with a crime at all (or the municipality says they're going to charge you unless you voluntarily give up the asset, which is the very definition of a shakedown).

Anonymous said...

It gets even better. In a recent New Mexico case, the appellate court ruled that even if a stop/seizure is illegal the court hearing the forfeiture case can not take that into account. In practice, police are making stops and seizing vehicles blatantly illegally because they don't care about the criminal conviction, they just want the car. They'll stop you, seize your car, and never even give you a ticket. In one city the police were arresting people for DUI (who then blew 0.0 on the breathylizer), seizing their cars, and then filing a dismissal on the criminal charge. Many times there was not even a pretense for a lawful stop. The cops run a license plate, see that the registered owner had a prior DUI, and figure if they stop it and that guy is driving they can get the car regardless of whether he has been drinking or they can prove a new DUI.

Even if the state Supreme Court says the practice is legal, it is godawful policy. But law enforcment has a lobby that is hard to beat, and all these seizures are funding goodies for the police.

Lee said...

We should change the burden on all cases (including civil) to beyond complete doubt. No more going with a "purty sure" or russian Roulette. I want to be completely sure that the damn job is done right.

Gritsforbreakfast said...

11:49 writes, "First, it removes the property from the criminal's use."

Is that really the case when the "criminal" was actually acquitted of the alleged crime? If you substitute the word "citizen" for "criminal," does it still make as much sense? Most Americans think property rights are a good thing.

Sure, "all of us" (except of course the person you're taking the money from) would also "benefit" if we confiscated the bank accounts of every billionaire in the country and used their assets to lower taxes. Many would say that's not right, but it's hard to argue the majority wouldn't "benefit."

12:35, if they did what you suggest it would of course defeat the point from the perspective of law enforcement, though I agree it would be much better public policy for LEOs not to operate based on a profit motive.

Prison Doc said...

I must confess that in my bad old days before the scales fell from my eyes and I saw what the criminal justice system was really like, I purchased a home and 3 acres from the US Marshals' service that had been seized Previous owner raising marijuana in greenhouses. Ex wife turned him in.

I feel bad now, I just don't believe in this asset seizure crap any more. Entirely too many abuses as described by the commenters above. I hope it can go away along with the enaction of a lot of other reforms we need in criminal justice and law enforcement.

Anonymous said...

11:49 that is a pretty good attempt at excusing and protecting the abuse of power... but its still horseshit.

Most folks would not have a problem with seized property being held until the outcome of the accused's trial. And please, please quit calling people "criminal" until they have been found guilty of the charge. The simple fact that prosecutors can no longer distinguish between "accused" and "guilty" shows their flagrant, insubordinate, defiance of citizens constitutional rights.

Anonymous said...

It may not change your point any, but you should note that there is a difference between a "defense" and an "affirmative defense." A defense must be disproved by the side with the burden of proof. Self-defense is a defense, not an affirmative defense. Once the evidence raises it in court, the State must prove beyond a reasonable doubt that the defendant did not act in self-defense. An affirmative defense on the other hand, must be proved by the party that raises it. Insanity, for example, must be proved by the defendant or the State wins.

While the distinction may not impact the point you are trying to make very much, it is important to know it when you are criticizing the law for imposing the burden of proof on a particular party.

Anonymous said...

It's real easy for the state to seize your property, wait I meant to say the states property.

Your car, RV, four wheeler motorcycle and your boat, all belongs to the state of Texas. You don't own them!

How is this possible? When you buy a car all you get is a "certificate of title" and the state is sent the "original title of your car. That means the state is the true owner of your property.

So in legal terms who really has true ownership of your car? You with a certificate of title or the original title which the state owns?