This Law Puts Homeowners at Risk of Property Rights Violations

by Pat Nolan & David Safavian: The owner of the resort didn’t ask his guests why they were there. He offered plush accommodations to those seeking to get away.

Sometimes, guests would come to play golf at the private and very exclusive country club. Other times, they used the fabulous spa services down the road. Still others wanted to simply enjoy the nearby beach.

But people came and stayed at the resort, and it was profitable. Some would call it a huge success.

But not all of the guests were good people. A few brought their drug habits with them. And in 30 instances (over a period of 17 years in which the owner and his wife rented out rooms to guests 125,000 times), law enforcement got involved.

The local police knew that the owner wasn’t involved in drugs. He and his wife were model citizens who took pride in their establishment. They even cooperated with law enforcement when something suspicious was going on with their guests.

But the police also knew that the resort was valuable, and that its millions in worth could add to the police department’s budget under forfeiture law. But under state law, the local cops didn’t have enough evidence of crimes to institute state forfeiture proceedings.

Undeterred by limits imposed by the Massachusetts Legislature, the police utilized a workaround. Federal law provided a lower threshold for seizing assets. The local police could circumvent state rules on forfeiture by turning the case over to the feds.

Using a program called Equitable Sharing, if local law enforcement could convince the Justice Department to institute forfeiture proceedings, the locals would get a cut.

So the police went to the Drug Enforcement Administration and convinced it that the resort should be forfeited. The Drug Enforcement Administration then convinced the Justice Department, which authorized the seizure.

Served with a federal notice of civil forfeiture, the resort owner was told that he had to prove he was innocent in all this. If he failed to do so, Uncle Sam could take the property, auction it off, and keep the proceeds—most of which would end up in the coffers of the local police department.

The owner and his wife, who built the business, would end up with nothing, despite not having been charged with any crime, let alone convicted of anything.

This property is not Mar-a-Lago, and the owner is not Donald Trump. But this is a real case involving the Caswell Inn in Tewksbury, Massachusetts, in 2009.

The owner was baffled by the seizure of his hotel because he had always had a good relationship with the local police department. He asked a police official why they targeted him rather than a nearby motel that was notorious for prostitution and drug dealing. The officer explained that they had looked up the other motel’s assessed value and found that it was heavily mortgaged.

The police would have gotten very little money if they seized that one. But seizing the unmortgaged Caswell Inn would net them millions of dollars.

This process is a clear conflict of interest. The local police department profits from these seizures, even if there is no conviction of a crime. The more that is seized, the more money goes back to the police for things like new equipment and retirement programs.

Civil asset forfeiture has turned many law enforcement agencies into modern “Sheriffs of Nottingham,” robbing from the so-called rich to give to the poor local police departments. Outraged citizens have taken to calling this nefarious process “policing for profit.”

Unfortunately, it’s not out of the ordinary. According to The Washington Post, more assets were seized under civil forfeiture proceedings than were stolen in all of the burglaries that took place in the United States in 2014.

The owner of the Tewksbury hotel was very fortunate. The Institute for Justice learned of his case, and undertook the legal fight to get his hotel back. They won.

But it is worth noting that there is no way that the owner could have paid for such top-notch lawyers out his own pocket. Few others can afford to fight the government.

Prosecutors argue that forfeiture is an important weapon in the war on drugs. That may be true, but only if it is tied to a crime for which there is an actual conviction.

Without a conviction, the current system turns our legal rights upside down. When assets are seized, the owners are presumed guilty until proven innocent. They have the burden of showing that their ownership of the asset was not the result of criminal activity. Otherwise, the government gets to keep the money.

Proving the negative is very hard to do, particularly when the government has seized all your assets and you have no funds to hire a lawyer. That isn’t just unfair. It’s un-American.

The abuse of asset forfeiture has prompted a growing number of states to restrict its use to when someone has been convicted of a crime.

To get around these restrictions, the federal government uses an equitable sharing law, which allows federal agencies to seize and launder proceeds, and then cut the local police in on the back end. It’s a pretty nifty way for the Justice Department and local police to conspire and get around limits imposed by state legislatures.

This issue arose just last month when Trump met with local law enforcement officials. During the meeting, a Texas sheriff complained that proposed reforms to civil asset forfeiture in the Lone Star State would hurt his ability to fight drug traffickers.

Without anyone to explain to him the unfairness of civil asset forfeiture, the president seemed to side with the sheriff and against state efforts to reform it.

Trump won his election by fighting for the “little guy” against an overbearing and dishonest government. Civil asset forfeiture is a prime example of just how overbearing and dishonest the government can be.

The next time asset forfeiture comes up, the president should remember the case of the hotel in Tewksbury. Under current law, his prized resorts are just one Hollywood star with a coke habit away from being seized.
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Pat Nolan is the director of the American Conservative Union Foundation’s Center for Criminal Justice Reform. David Safavian is deputy director of the American Conservative Union Foundation's Center for Criminal Justice Reform. Both are contributors to The Daily Signal.

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