A bill recommended by the Senate as “must pass” would reform Massachusetts civil property forfeiture laws. This much-needed reform has been called for by property advocates for years, but we’ve gained ground by showing how property rights matter most to those who have the fewest. Consider the law as it stands today, applied not to an owner of real estate (we’ll get to that), but to a tenant who owns little more than his car.
Our tenant lends his car to his cousin so he can do his shopping. Unbeknownst to our tenant and without their permission, the cousin takes the car to run some errands, including a stop to sell fentanyl. But he gets caught and arrested. If the arresting officer believes that taking our renter’s car is necessary to stop future illegal drug sales, they may take the car without compensation to our renter.
Note that our tenant does not have to be arrested or charged. This is why it is called civil (as opposed to criminal) forfeiture. They don’t need to be charged with any crime! Their cousin used their car, so their car is part of a criminal enterprise and is confiscated.
Problem with the highlights of the Motel case
For our hypothetical renter, the loss of his car will set off a chain reaction of disasters, possibly leading to unemployment and eviction. Incredibly, if they choose to protest the forfeiture, they have the burden of proof to overturn it. “Innocent until proven guilty” is a criminal law concept and therefore does not apply to civil forfeiture of property. If they don’t know how to prove their case, or if the lawyer they would hire costs more than the car, that car is pretty much lost.
To make matters worse, the arresting officer can benefit from this confiscation. Imagine that our tenant had an expensive car. (Haven’t we seen this before!) Sold at auction, this car could get the police department a lot of overtime. Such a sale is legal, and very attractive! Or if the agent wishes, he can drive the beautiful car for themselvesas a New Mexico City attorney advised his officers to do.
In 2021, the Massachusetts Legislature produced a report detailing how civil asset forfeiture affects Commonwealth residents. The commission discovered that we had seized more than $20 million in assets from 2017 to 2019. Assets seized include a lot of cash, over 600 cars, and many other small issues, including watches, phones, shoes, GPS systems, jewelry, and more. Half of all seized assets total less than $5,000. The smallest amount of money taken was $6.20.
Either the mafia lost all bitcoin, or civil forfeiture of assets must have a disproportionate impact on low-income Massachusetts residents, especially renters. Owners of all sizes should be entitled to due process. And landlords want tenants who are wealthy, stable and able to pay rent.
Nowhere is civil forfeiture of property more economically detrimental than when applied to real estate. For example, in 2011 the owner of the Caswell motel in Tewksbury had successfully let over 196,000 rooms, but 19 of those rentals ended in drug seizures. 99.99% of all rentals were within the law, but in combination with local law enforcement, federal authorities attempted to seize the entire motel with no compensation to the owner.
With the help of the Institute for Justice, this owner managed to defend himself. Most are not so skillfully helped. At least one other of our members has been threatened with confiscation and forced to sell at a loss.
S.2944 would solve the most glaring problems
The wording of Senate Bill 2944 would make four necessary improvements.
First, the burden of proof would shift from all owners to the police. This would greatly increase the possibility of recovering seized property, especially where the owner has lower incomes. District attorneys have to make the effort.
Second, the standard by which assets are seized would change from “probable cause” (the lowest standard) to a “preponderance of the evidence”. This would greatly reduce the likelihood of the assets being seized in the first place.
Third, all owners would have the right to a lawyer. In other words, the state will pay for an attorney to help the tenant in my previous example recover their assets. This will help in multiple ways, especially in cases like Timbs v. Indianain which a seized Land Rover resulted in exactly the downward spiral I described above.
Fourth, the broken incentive would be fixed. Now, instead of a seizing officer using the car or property themselves, proceeds from the sale of confiscated property must pass through state supervision. But this bill does not defund the police. Money from confiscated assets remains available for police budgets, only under state and public oversight.
Overall, this reform would be the biggest expansion of property rights in Massachusetts in a very long time. And this happens not because owners want it to, but because property rights are universal, and most important where they are least valued.
Confiscation of civilian property dates back to the British Navigation Acts of the 1600s. It is high time for Massachusetts to declare its independence.
Doug Quattrochi is executive director of MassLandlords Inc.