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:

• Discretionary funds from commissary to asset forfeiture bolster local law enforcement budgets
• Audits of asset forfeiture funds yield questions, felony conviction of Brooks/Jim Wells DA
• Making the same old mistakes on asset forfeiture: Profit motive has no place in law enforcement strategy
• Counties upset DPS doesn't share more asset forfeiture income from I-40
• DA convicted of misusing asset funds
• Voter ID fight puts criminal justice reform bills at risk
• Tenaha poster child for asset forfeiture abuses
• Reining in asset forfeiture abuses
• DA's overreliance on asset forfeiture violates the law
• Take the profit motive out of asset forfeiture
• Senate committee: Asset forfeiture too often a profit-making venture
• Outgoing Sheriff went on forfeiture-backed spending spree
• Asset forfeiture dependent Sheriff views Hwy 77 as 'piggy bank'
• Asset forfeiture funds may get more accountability, money diverted to drug courts
• Levin: Assets seized from criminals shouldn't become political slush fund
• What's the difference between a pirate and a privateer?