How the Feds Can Take Your Property
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GARY HULL
The Fiscal Times
July 23, 2012

Op-Ed: During a routine traffic stop, the officer asks if you have any cash in the car. “Why, yes,” you say, “$8,000 in business receipts that I’m taking to the bank.” He seizes the money. After months and some $2,000 in legal fees, you might get it back.

An expensive boat that you own free and clear is docked at the local marina. Unbeknownst to you, underage teenagers have been using it at night as their clandestine drinking spot. When the Coast Guard finds out, it seizes your boat for committing the “crime” of contributing to the delinquency of minors. Local law enforcement sells the boat, and keeps the proceeds.

Throughout the country, legions of bureaucrats, DEA agents, and local law enforcement scour the country for lucrative property (and cash) to steal from innocent citizens. They do so under a capricious law known as “civil asset forfeiture” (CAF) – the bizarre notion that a thing or property “acted wrongly,” and thus is being charged with a crime.

Asset forfeiture is used by federal and state officials to seize cars, boats, cash, houses, businesses – all on the grounds that the asset might have been used or could conceivably be used in the commission of a crime, by someone, somewhere, at some point. The government’s take last year from the 15,000 cases: a cool $2.5 billion.  

To retrieve that asset, you must enter Kafka’s universe. Even if you have the tens or hundreds of thousands of dollars necessary to mount a defense, CAF reverses the burden of proof and forces on the property owner an impossible standard – to prove that the asset was not used to facilitate a crime, or if it was, that you did not know that the property was being used for facilitation. Further, you have to prove that you did everything possible (whatever that means) to prevent the crime(s).

Consider the government’s case against Motel Caswell (United States of America v. 434 Main Street, Tewksbury, MA. Note that the named defendant is not a person.) The motel has been owned by Russ Caswell and his family for two generations. Caswell, 68, and his wife (who is gravely ill) spent some thirty years of painstaking effort to create a mortgage-free business that is worth about $1.5 million – money the Caswells hoped would pay for their retirement.

But when a statist government needs money, it manufactures a pretext for confiscating wealth. The DEA, in cahoots with the Tewksbury Police Department, alleges in its suit that over the last eighteen years, some individuals have committed drug crimes while staying at the motel. The government is not alleging that Caswell committed or facilitated crimes, or that he even knew about them.

Predictability is a hallmark of objective law – of a “government of laws, not of men.” Law, which sanctions the government’s use of its police power, is a tool for protecting an individual’s right to life and property. A proper law is defined clearly and precisely, so that citizens can know in advance what actions they are prohibited from taking, and what the penalties are for defiance. Author Ayn Rand noted, “An undefinable law, is not a law, but merely a license for some men to rule [and loot] others.”

It is impossible for Caswell, or any other violator of CAF, to know ahead of time what actions he was legally prohibited from taking. The fundamental injustice of CAF is not that the “law” is unclear. It is that it is nonexistent. There is no language in it that even approximates the following: “No individual shall knowingly allow the use of property or other assets owned to be used to facilitate a crime. Penalties may include, but are not limited to, the seizure and forfeiture of said property and/or assets.” There is such language in the criminal asset forfeiture laws. But then those laws are not handy tools for legal plunder. (Besides, if crime is so rampant in Tewksbury and at the Caswell Motel, then the Feds should be seizing, not the motel, but the police department for failure to protect its citizens.)

During a deposition, Vincent Kelly (DEA Special Agent in the asset forfeiture division covering all of New England) stated that his job is “primarily just mainly looking for property to be forfeited.” And how does he do that “looking?” He trolls the Internet for Registry of Deeds “to find out who owns the property,” and “how much equity is on the property.” Then he contacts local law enforcement – in this case, the Tewksbury Police – to see if any crimes have been reported on the property.

The incentive for locals in this confiscation racket is called “equitable sharing,” which can yield them up to 80 percent of the booty. In the Caswell case, that could mean $1.2 million for the Tewksbury police to spend on new cars, uniforms, hi-tech equipment, junkets to Hawaii. Meanwhile, Caswell and his wife will have been impoverished.

I dare anyone to find a single hotel or motel (or even residence) in the U.S. that has not been used by someone at some point to “facilitate a crime.” CAF allows Lady Justice to peek under her blindfold and see whether there is enough equity to make your property worth pillaging. Said Institute for Justice attorney Larry Salzman, who is defending Caswell: “Civil asset forfeiture treats innocent property owners worse than criminals [because] the owner must prove himself innocent. To take property from someone who has never committed any criminal wrong is fundamentally un-American.” 

Dr. Gary Hull is the director of the Program on Values and Ethics in the Marketplace at Duke University