by Dale Chappell
The Institute for Justice announced in its latest Policy for Profit report that Massachusetts was the only state in the country to earn an “F” because of its unfair civil forfeiture laws. One reason is that the state doesn’t have a time limit for when it must begin forfeiture proceedings once it seizes someone’s property.
For example, police in Berkshire County seized Malinda Harris’ 2011 Infinity G37 more than five years ago, because they suspected her son was selling drugs. However, they never alleged that he used her car to sell or transport drugs, or that she even knew about his drug activity. The civil forfeiture complaint, finally filed by the state in January 2020 (which Harris received in October 2020), says that three other cars were used for drug activity, but it didn’t mention hers. It only mentions that the title of her car was found in her son’s bedroom, and the car had receipts pointing to her son using the car for normal purposes.
As with most states, Massachusetts can seize property when they have “probable cause” to believe it was used for drug trafficking. Once they have met that low threshold, the burden then shifts to the property owner to prove the property isn’t subject to forfeiture. Harris’ lawyer says the evidence falls far short of probable cause to allow forfeiture. Often, civil forfeiture victims don’t have lawyers to represent them because the cost is usually more than the property is worth. But Harris got lucky: Stephen Silverman, an attorney with the Goldwater Institute, took her case for free.
Silverman filed a motion in state court at the end of February 2021, arguing that the multi-year delay in giving her a chance to recover her car through forfeiture proceedings violated her due process rights guaranteed by the Constitution. In the motion, he demanded the immediate return of her car. Harris has this right as the “innocent” owner of the seized property, because she didn’t know it “was used in and for the business of unlawfully manufacturing, dispensing, or distributing controlled substances.” But she also had to prove her innocence — the exact opposite of the standard in criminal cases.
“The Commonwealth has offered no justification for why it took almost five years to file this suit or another 10 months to serve it,” Silverman said. “This lengthy, unexplained delay deprived Harris of due process and requires that the complaint be dismissed.”
He also argued that the financial incentive for police to seize property under civil forfeiture creates a “temptation to overzealously pursue forfeiture cases,” and to prioritize profit over public safety: Police departments in Massachusetts get to keep the money from the sale of seized property. While criticized for years, Massachusetts’ civil forfeiture system has been fiercely protected by law enforcement agencies.
“Civil asset forfeiture abuse will only stop when people stand up to and fight against these abuses,” Silverman said. “I admire Malinda’s courage and strength and look forward to Malinda getting her day in court.”
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