In America, you’re supposed to be considered innocent until being proven guilty, but that is not the case when it comes to civil forfeiture. Quite to the contrary, in fact.
Civil forfeiture cases allow the government to take a person’s cash, car, home or property without ever convicting that individual or even charging that person with any criminal wrong-doing. The Institute for Justice is fighting in court in a week-long trial this week to change this, representing Russ Caswell, a Massachusetts small business owner, who is currently fighting to keep his life’s work from being taken from him by the government through civil forfeiture. Caswell runs a motel outside of Boston that he took over from his father. After years of working with the local police department to limit crime on his property and with only a paltry number of drug crimes taking place on his land, the police and the federal government are now saying Caswell should have done more to prevent crime at the Motel Caswell; they seek to take the entire property from him, sell the land and keep the proceeds for their own use.
In the past 20 years, less than .05 percent of the 125,000 rooms the Caswells rented were the subject of criminal activity that could initiate the use of civil forfeiture. Whenever the Caswells were aware of criminal activity, they cooperated with law-enforcement officials to stop it including installing additional security cameras, taking photo copies of guest IDs and license plate numbers, even providing free motel rooms to police to conduct surveillance and drug busts. The Caswells were never told that they needed to take more action to prevent crime, yet now local police say the Caswells did not do enough. And now, even though the Caswells have never been convicted or even accused of committing a crime they stand to lose their hotel, which amounts to their entire retirement savings.
“My father built the hotel when I was a boy in 1955,” said Russ Caswell. “It is un-American that I am being treated like a criminal when my family has always worked with the police to quickly report and resolve any crime that has occurred on our property. Rather than work with us, the federal government has blindsided us and is trying to take everything we’ve worked so hard to earn.”
When local law enforcement teams up with the federal government in civil forfeiture cases to engage in what is known as “equitable sharing,” local police departments get 80 percent of the bounty while the federal government takes the remaining 20 percent giving them a perverse incentive to abuse their power. Just as bad, in civil forfeiture cases the idea of “innocent until proven guilty” is turned on its head: The property itself is presumed guilty until the owner can prove otherwise. This purposefully makes things very difficult for property owners and very easy for the government to cash in. As state legislatures, like the Massachusetts legislature, sought to rein in abuse of forfeiture laws by increasing the burden of proof required to seize property, or by prohibiting proceeds of forfeitures from going directly to the budget of the local law enforcement agency, local law enforcement agencies started teaming up with federal agencies to side-step state laws and engage in profitable equitable sharing arrangements with federal prosecutors and thereby splitting any forfeiture funds secured.
The Motel Caswell is by no means the only property in Tewksbury that has criminal activity. According to police logs, the Motel 6, the Fairfield Inn, and even the nearby Wal-Mart and Home Depot parking lots have similar problems. But those properties are corporate-owned, which means the government would have to fight teams of lawyers to take them. And, importantly, the Caswells own their property free and clear, which makes them the perfect target for a government interested in policing for profit: the Caswells are vulnerable and their property is valuable.
Americans have a constitutionally protected individual right to own private property free from unreasonable governmental interference like that represented in the Caswell case. A victory on behalf of Russ Caswell will send an important message that when governments at every level conspire to wrongfully take what does not belong to them, citizens will stand up and defend that right. A victory for Russ will go a long way in stopping civil forfeiture and the inevitable abuse that will occur when law enforcement agencies are allowed to police for profit.
Sarah Allison is a communications associate with the Institute for Justice, which is litigating the Caswell case in federal court. For more information, visit www.ij.org.
Source: AFF Doublethink Online | Joseph Hammond
Source: AFF Doublethink Online | Emma Elliott Freire