Seizure Reform Makes Headway

Boat/US Magazine, July, 1999 by Elaine Dickinson

They say politics makes strange bedfellows and this certainly was the case this spring when groups as diverse as the National Rifle Association and the American Civil Liberties Union teamed up to turn the tide on the contentious issue of civil asset forfeiture.

In a nutshell, civil asset forfeiture means that the federal government can seize your property -- cash, bank accounts, cars, boats, airplanes, homes and entire businesses -- sell them at auction and keep the proceeds, whether or not the owner is ever indicted, tried or convicted of any crime. It sounds farfetched but it's been going on for more than a decade and has become one of the weapons of choice in the war on illegal drugs and other crime.

According to the courts, due process of law is not violated by civil seizure and forfeiture because it is the asset that is "arrested," not the person. Criminal seizure and forfeiture are handled differently and a conviction must occur before assets are forfeited.

Under current law it is very difficult for the average citizen to get their seized property back. They only have 10 days to file a claim and are required to post a 10% bond (up to a maximum of $5,000) to even contest the seizure. And if the property is returned, the government is not liable for any damage incurred during handling and storage.

While the overall intentions of putting a dent in crime may be good, the Congress has heard testimony from numerous citizens of nightmarish abuses by government agents. Property seizure and forfeiture have escalated since the late 1980s when drug interdiction efforts intensified, including several high-profile vessel seizures and destructive drug searches involving boats. In 1996, the last year for which figures are available, $74 million in property was seized.

U.S. Rep. Henry Hyde (R-IL), the powerful chairman of the House Judiciary Committee, is leading the bipartisan effort to reform federal forfeiture law. His bill, H.R. 1658, was introduced in May with 34 co-sponsors, including the Judiciary committee's ranking Democrat, Rep. John Conyers of Michigan. At press time, 45 House members had co-sponsored H.R.1658.

"It is incumbent on the Congress to reform the system to make it consistent with the basic presumption in American law -- that you are innocent until proven guilty and that you should not lose your property without due process of law," Hyde said in a letter to fellow House members. He has even written a book on the subject, Forfeiting Our Property Rights, published by the Cato Institute.

While Hyde's bill would not do away with civil forfeiture it would provide a number of important protections for innocent citizens, some of particular interest to boat owners since boats are chartered, borrowed and change owners frequently.

Currently, a person's property can be seized based on as little as "probable cause" that the property was involved in illegal activity. According to Hyde, buying airplane tickets with cash happens to fit a drug courier profile and the traveler can be detained, questioned and have his or her cash seized to be examined for traces of illegal drugs. Regardless of whether the person is arrested or charged, to recover their cash they must prove their innocence and that their money was in no way involved with drugs and file a claim to get it back. In the case of homes and boats that are leased, the owner of the seized property has to prove they knew nothing of any illegal activities and did everything possible to prevent them.

As Hyde points out, "You have to prove a negative, that your property was never used in a crime, that it was 'innocent.' And the alleged criminal conduct needn't even involve you. It could just as easily be a crime committed by a previous owner."

Hyde's bill would:

* Shift the burden of proof to the government when a citizen files a claim to get their property back;

* Allow property owners to sue the federal government for damages to their seized property;

* Eliminate the requirement that a bond be posted in order to file a claim for the property's return;

* Add a "hardship provision" for business owners in which a seized business is allowed to continue in operation while a claim is being settled;

* Strengthen the "innocent owners" protection; owners would only have to show that they notified authorities as soon as they were aware of an illegal activity, not that they did everything possible to prevent it;

* Provide legal counsel to those who need it.

Vessel owners who charter their boats will benefit from a number of these provisions, especially the additional "innocent owners" defense. In a number of cases in which vessels were seized for drug offenses, the owners were not on board but suffered the consequences and expense of getting their boats returned to them.

The case of the 133-foot Ark Royal made headlines in 1988 when the $2.5 million yacht was seized for a trace amount of marijuana found in a dresser drawer. Even worse was the seizure and virtual destruction of a newly purchased sailboat by Customs agents in Florida in 1989. No drugs were found on the boat, worth about $17,000, but it sustained about $10,000 in damage by agents who ripped out interior woodwork, drilled holes below the waterline and ruptured the fuel tank. The boat was later sold for scrap but the owner still had to pay off his boat loan. Because there were no provisions in the law for him to file a damage claim against U.S. Customs, he succeeded in getting only $8,900 back after three years of effort with his Florida congressman who pushed through a "private relief" bill.