‘This motel is hereby under arrest’

Civil forfeiture is the government power to take property suspected of involvement in a crime. And unlike cases of criminal forfeiture — the seizure of ill-gotten gains after a criminal conviction — police can seize property without so much as charging the owner with any crime.

This led to some widely publicized cases, a few years back, in which black motorists were routinely pulled over by local police and relieved of large sums of cash while driving on major highways in the South. The motorists weren’t charged, since a criminal conviction requires actual evidence. Instead they were told “We’re seizing this cash because we presume it was intended to buy drugs; if you want to come back here from wherever you live and fight it out in court, good luck.”

Facing court costs and the burden of proof — the reverse of the usual order of things — few motorists bothered.

This legal sleight-of-hand is widely used but not well understood except by those who’ve been its victims. In civil forfeiture, the government actually sues the property itself, as though the property somehow committed a crime. That’s why civil forfeiture cases have unusual names, like United States v. 434 Main Street, Tewksbury, Massachusetts — an actual case involving a Massachusetts motel.

Since 1985, federal law enforcement agencies have been allowed to keep all the property and currency they seize. Before that change in law, forfeiture revenues were modest. But since the profit incentive was added, forfeiture revenues have boomed.

And under a policy called “equitable sharing,” state or local cops and prosecutors can now take property by making use of FEDERAL civil forfeiture law, even if they couldn’t do so under their own state laws.

That Massachusetts motel?

Motel Caswell is a family-owned budget motel in Tewksbury, Mass., 30 minutes outside Boston. Russell and Patricia Caswell have owned and operated the motel for nearly 30 years. The Caswells expected the motel, now mortgage-free, to provide a nest-egg for retirement.

But the U.S. Drug Enforcement Agency and Tewksbury police had other plans. They went to court to seize the entire property — worth a million dollars — because some guests staying at the motel have been arrested with drugs.

Since 1994, the Caswells have rented their rooms more than 125,000 times. Yet, because drug arrests have taken place on roughly 30 occasions over those 18 years, the drug police asked the court for the keys.

Not that the government ever claimed the Caswells themselves were guilty of any crime. The only defendant in this case was the street address! And the federal government planned to turn over as much as 80 percent of the take directly to the Tewksbury police.

Furthermore, because the Caswells had no rights as “defendants,” the onus was on them to raise the money and go to court to challenge the seizure.
And now, finally, a pleasant surprise. In a major triumph for property rights, a federal court in Massachusetts this week dismissed the civil forfeiture action against the Motel Caswell.

Magistrate Judge Judith G. Dein of the U.S. District Court for the District of Massachusetts concluded, based on a week-long bench trial last November, that the motel was not subject to forfeiture because — surprise — its owners were innocent of any wrongdoing.

“The witnesses unanimously confirmed that no efforts were undertaken to work with the Motel owner to try and reduce drug crimes at the Property prior to the institution of the forfeiture action, nor was any warning given as to the possibility of forfeiture prior to suit being filed,” found Judge Dein.
“This court finds it significant that neither Mr. Caswell, nor anyone in his family, nor anyone over whose behavior he had any control, was involved in any of the drug-related incidents. …

“Similarly of importance is the fact that there was nothing about the Motel Caswell per se or its operation that made it particularly connected to the drug crimes, other than the fact that it consisted of budget rooms that were rented to transient guests. … There was no reason for Mr. Caswell to suspect that every guest, or even a particular guest, who was coming to the Motel would engage in illegal behavior. … Courts do not expect the common land owner to eradicate a problem which our able law enforcement organizations cannot control.”

Of course, the Caswells managed to win only because someone stepped forward to help finance their fight.

“I couldn’t have fought this fight without the help of the Institute for Justice,” the Washington-based public interest law firm that went to bat for the family, Mr. Caswell says. “It is hard to believe anything like this goes on in our country, but the government goes after people they think can’t afford to fight. … The public needs to stand up against these abuses of power.”

The Problem of civil forfeiture remains widespread. In 1986, the year after the U.S. Department of Justice’s Asset Forfeiture Fund was created, it took in just $93.7 million. Today, it holds more than $1.6 billion.

Forfeiture reform remains desperately needed at all levels. “Property” doesn’t commit crimes, and Americans shouldn’t be at risk of losing their hard-earned assets except as duly specified punishment for crimes of which they’ve actually been convicted.

17 Comments to “‘This motel is hereby under arrest’”

  1. Howard R Music Says:

    Back in the early 70s on my first leave home from the Air Force, I was stopped by a Texas state trooper. He asked for my license. It was in a plastic fold-out in my wallet, and I handed the wallet to the young trooper. He refused to take it, and asked me to remove my ID. We were alone, in the middle of nowhere, yet he didn’t even want to touch my billfold. It never even dawned on me that a cop would steal.
    In 1998 I was stopped in a small town by several young cops. I refused to give permission for a search, and was thrown to the ground and cuffed. The first thing the cops took was my wallet. Have times changed or what?

  2. theCL Report: Our Desperate Bankrupt Nation State Says:

    [...] 'This motel is hereby under arrest' [...]

  3. Thomas Mitchell Says:

    Here is one of my favorites, Vin:

    “Air charter operator Billy Munnerlyn had one of his planes seized in 1989 after, without his knowledge, he flew a customer carrying alleged drug money. Munnerlyn spent $85,000 on legal fees. He had to sell three other planes to finance getting back the one taken. When he did get it back it had $100,000 in damages, apparently due to the government search of it. But since the government has sovereign immunity, he could not sue for damages. Munnerlyn filed for bankruptcy and closed his business.”

  4. Michael Says:

    Hi,Thomas Mitchell
    Re: …government has sovereign immunity,…
    How or who granted,etc., the government sovereign immunity?

  5. Tatiana Covington Says:

    How or who granted,etc., the government sovereign immunity?

    Answer: they just made it up out of nothing!

  6. Thomas Mitchell Says:

    Sovereign immunity goes back to English common law.

  7. Reis Kash Says:

    Now retired, I was a cop when “protect and serve” was the philosophy. In our department if the officer was argumentative with citizens or provoked fights, he got a night time assignment with the best boxer in the community (a fellow officer) and – inevitably – he took a bad fall – sometimes blacking both eyes. I know there are many good police officers in the USA today, but I dread the feds and particularly the Department of Homeland Security, which seems to be Obama’s private army. Notice Revrum Jackson just suggested Obama dispatch DHS to Chicago to keep down gun violence. My questions to Vin: What is the strength of DHS, what weapons and ammo do they possess, and what is their jurisdiction over persons, places, and crimes?

  8. liberranter Says:

    Magistrate Judge Judith G. Dein of the U.S. District Court for the District of Massachusetts concluded, based on a week-long bench trial last November, that the motel was not subject to forfeiture because — surprise — its owners were innocent of any wrongdoing.

    Wanna bet that, within a very short time, the feddle gubbimint will find an appeals court to overturn that decision?

  9. Reis Kash Says:

    And you should see what some of the federal agencies do with the seized property: one agency let its hot-shot seized property enforcers select the sexiest automobiles for duty cars, maintained them, and supplied gas, etc, so the agents could use them going to and from their homes. Oh yes, and provided free parking to go with it. Then there is the case of the stolen gold coins . . .

  10. Dale Says:

    IANAL, so, question: While sovereign immunity is a long-standing feature of common law, in the case of the United States, should not the people be the sovereigns, and the people in government be seen as merely their servants?

  11. Thomas Mitchell Says:

    Of course, but judge with his snout in the public trough will ever rule in that way.

  12. Reis Kash Says:

    This [criminal] business on the part of the government has very little oversight and accountability so we end up with cops driving fancy sports cars as “patrol vehicles” and – literally – stores of gold coins disappearing. The practice is criminal and the results are criminal. What does the Constitution mean to today’s “public servants?”

  13. Reis Kash Says:

    The citizens are sovereign under the Constitution. The problem is most of them don’t know it and though they know it the politicians and bureaucrats hate the concept and frustrate it at every opportunity.

  14. Thomas Mitchell Says:

    Most people don’t want liberty, they want to be told what to do.

  15. Reis Kash Says:

    Unfortunately Mr Mitchell, you’re right. Though I have had a diminishing esteem for the American people over the years, I was surprised to see Obama win the last election. The Obama-phone crowd at 47% of the population and their fellow travelers put him. This week – yes, this week after all he has done to harm the United States and limit our rights – Obama received the highest popularity rate ever. The only way we can turn this around is to change the school system which now teaches socialism and social justice to our kids and our court system which lets murderous criminals go after they have all the medical care, free dental work, etc, and they are back out on the streets. A congressional ethics committee is a joke – a sad joke – when crooks are judged and cleared by fellow crooks.

  16. Thomas Mitchell Says:

    And Harry Reid is saying he may run for another term.

  17. Reis Kash Says:

    Hary Reid is a slippery snake who give the word Mormon a bad name. He is so tied to the gamblers he should have a roulette wheel around his neck.

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