Seizure Disorder

malkin1@ix.netcom.com (Michelle Malkin) — Mon, 01 Mar 1999 00:00:00 EST

Etta Mae Franklin is 78 years old. The seventh and eighth decades of her life have not been easy. Her husband, a seaman and sandblaster, was killed on the job. One of her 10 children died of cancer. And three years ago, the city of Seattle came close to taking away her home.

The city had targeted Franklin's modest residence, one block from Garfield High School in a troubled Central District neighborhood, for "abatement," through which the government seizes private property in the name of public safety. Franklin herself was never accused of wrongdoing, but she had a delinquent, live-at-home son suspected of dealing drugs. On January 28, 1995, the Seattle Police Department obtained a search warrant and raided Franklin's home. They found no drugs and made no arrests. On October 13, 1995, the cops got a second search warrant and again made no arrests.

According to the police report, Etta Mae Franklin told the officers "that she did not want to lose her house." She agreed to evict her 41-year-old son, Edmund McNeil, who allegedly had sold drugs to a police informant. But the city proceeded with abatement anyway, and as it closed in on Franklin's home, her lawyer, James Kempton, saw the alarming implications:

"The city seems to wish to penalize Etta Mae Franklin for failing to stop an alleged activity which she is unaware of and over which she would have no control if she were aware. If the Court were to let the City have its way, we could easily resolve the entire drug problem in the Central Area, by telling every homeowner that drug activity is illegal, then abat[ing] their homes if accusations are made by neighbors of frequent pedestrian traffic, etc.

"This is obviously an unconstitutional overreaching by the City in an attempt to deter an alleged drug dealer without arresting him. While the City's petition and supporting affidavits create a lot of suspicion, the obvious answer would be to make an arrest and charge accordingly....Mrs. Franklin has done everything within her power to see that her home is maintained in a lawful manner."

Franklin's 730-pound son was eventually arrested for drug activity, but no jail would accept him, court records show, "because of his girth." In the meantime, Kempton won a court decision to set aside the abatement of the innocent mother's home. But it came too late to spare Etta Mae Franklin the grief and financial hardship that accompanied her three-year nightmare. Adding insult to outrage, the city billed Franklin for the cost of filing the civil action. Reflecting on the ordeal, Kempton says, "It was just cruel."

Etta Mae Franklin is not the sort of person legislators had in mind when they created the law enforcement tool known as drug nuisance abatement in 1988. At the height of public concern about crack cocaine, the Washington legislature approved a law enabling local governments and private citizens to go to court to condemn property tied to drug activity. During the legislative debate, then-state Sen. Janice Niemi (D-Seattle) identified who the primary targets should be: "Of course, these are crack houses we are talking about, particularly in the city of Seattle."

A model of the law's intended application was the February 1990 closure of a crack house operated by a Cuban gang in Tacoma's Hilltop neighborhood, which resulted in the arrest of 28 members of the infamous Marielitos crime ring. The King County Prosecutor's Office, which handles criminal cases in the unincorporated area outside of Seattle, has used the law sparingly. Almost all of the county's drug nuisance abatements since 1988 have resulted in arrests of property owners involved directly in drug-related activities. One case involved a home located north of Seattle that was under investigation for operating a drug ring and a U.S. Postal Service mail scam; the owners were arrested for multiple heroin sales. Another involved a methamphetamine lab run out of a Kent-area home and investigated by the U.S. Drug Enforcement Administration.

But critics charge that Seattle City Attorney Mark Sidran has applied the abatement law unfairly and inappropriately. The U.S. Department of Justice is reviewing a discrimination complaint filed against the city last summer by the National Black Chamber of Commerce. The main focus of the complaint is minority-owned businesses targeted for closure. But once investigators start digging, it will be hard to ignore the scores of other property owners whose rights may have been trampled in Sidran's war on drugs.

An examination of the city attorney's files raises troubling questions about Sidran's energetic and unscrutinized application of the law--and the willingness of the state Liquor Control Board and the judicial system to support him. I reviewed 28 drug abatement cases that were filed by the city during Sidran's tenure, from 1990 to the present. (Of about 100 total cases brought by Sidran's office, roughly two-thirds were inaccessible because of ongoing investigations or for administrative reasons. Of the remaining 36, eight are archived and could not be obtained in time for this article. I reviewed the remaining 28 at the City Attorney's Office or through the King County Courthouse.)

The files document several instances of apparent overreaching and misallocation of police resources. Sidran's targets have included:

Rose Ervin, a grandmother described in police records as "an amputee confined to a wheelchair and over eighty years of age." Like Etta Mae Franklin, Ervin was never suspected of having engaged in or condoned illegal drug activity in her home.
Mae Fosha, another elderly grandmother who had suffered a stroke and a heart attack and undergone two bypass surgeries. She was not accused of drug crimes and went out of her way to meet with police in the East Precinct to help solve a neighborhood crime problem that did not involve her or anyone living in her house.
Preston Scott Sr., who contacted the Seattle Police Department and "was eager to try and eliminate drug activity" at a home he rented to his grandson. The grandson, Cornell Callendret, was suspected of being a dealer but was never arrested.
Westerton Currie, an unemployed 71-year-old Seattle resident with a third-grade education, who admitted he had a drug problem and said he needed help. In 1991, Currie's attorney, Jean Schiedler, raised compelling questions about the apparent lack of due process available to her client under the drug abatement statute:

"The City has provided simple affidavits of police officers, declarations reputedly from people within Mr. Currie's neighborhood and police reports inadmissible as hearsay to show the truth of the matters contained therein. Mr. Currie has no meaningful opportunity to challenge or respond to the allegations raised...no opportunity to cross-examine witnesses by which he would be deprived of his property. The court has no opportunity to independently review and assess the credibility of the witnesses or the strength of the evidence."

Similar complaints have been heard from owners of several small businesses targeted for closure. The most prominent local business entangled in Sidran's drug abatement web is Oscar's II, a two-decade-old family tavern in Seattle's Central District owned by Oscar and Barbara McCoy. The McCoys are challenging Sidran's action as a violation of their civil and property rights. Their case, the state's first to challenge the constitutionality of drug abatement, is before the state Court of Appeals. Oral arguments were expected to begin in February.

Sidran argues that Oscar's II is a menace to the community. Yet only one citizen came to a July legislative hearing on reform of the drug abatement law to vouch for Sidran's claims, and she lived in a Belltown condo, miles away from the bar. After a 10-month undercover investigation and 11 alleged drug buys, no arrests were made and no criminal charges were brought against the McCoys or any of their employees.

Ernest Heller, a senior administrative law judge who presided over a state Liquor Control Board hearing to determine whether the McCoys' liquor license should be revoked, concluded that he could not make findings based on the hearsay statements of confidential informants involved in the alleged drug buys. To do so, Heller wrote, "would deny the licensee an opportunity for confrontation"--a fundamental due process concern voiced six years earlier by Westerton Currie's lawyer.

Heller found the testimony of a key confidential informant known as "Bright Eyes" particularly disturbing. The anonymous woman participated in the Seattle Police Department's sting operation on six different occasions during 1997. She testified that she had obtained drugs from a customer, who claimed in turn that she had received them from a waitress at Oscar's named Colleen. But the only waitress with that name employed by the McCoys was neither on duty nor on the premises on the day Bright Eyes claimed to have bought drugs at Oscar's. Heller dismissed her testimony as "not credible" and said that "taken as whole, she was not presented as a credible person." Nor a particularly competent one. At one point, when asked whether she had an independent recollection of an alleged drug buy, Bright Eyes replied: "I don't have a photostatic record of memory, sir."

"It is troubling," Heller concluded, "that hundreds of thousands of dollars were paid out to drug dealers leading to no enforcement activity." Nevertheless, the Liquor Control Board, goaded by the city of Seattle to revoke Oscar's license, quickly threw out Heller's strongly worded ruling in favor of the McCoys and instead took Bright Eyes at her word.

Another targeted business was Uncle John's Tavern in the Rainier Valley neighborhood of Seattle. Owner John Clayton is a 40-year resident of Seattle, an Army veteran, and a retired employee of the U.S. Public Health Service. He had a spotless record of compliance with liquor laws until the city of Seattle filed an objection to his license renewal. He had never been charged with a drug violation and had cooperated with police to fight crime. Despite a petition of support signed by more than 100 neighbors and patrons of his tavern, the city launched a drug abatement action against Clayton in 1996.

King County Superior Court Judge Joseph Wesley, who also presided over the McCoys' abatement hearing, acknowledged the difficulty of balancing the "community's interest in combating drug traffic and an individual's right to operate his business free of government interference." The city decided to defer its case because alleged drug activity had ceased at Uncle John's. (Curiously, the cessation of alleged drug activity at Oscar's II has not resulted in a similar decision.) But by the time the city finally relented, Uncle John's had been strangled slowly to death. Clayton was forced to sell the business to defray his legal costs.

A courtroom exchange between Judge Wesley and Clayton's lawyer, Howard Pruzan, highlights the unfair expectations created by the abatement law:

Pruzan: "Honest to goodness, we want to help eradicate drug activity. Seriously, what can Mr. Clayton do? Supposing that he believes that someone in his parking lot is doing something suspicious. He certainly cannot make a citizen's arrest. He can call the police department. I am told by his security person that they have done that and that the police have not responded for three or four hours at a minimum. What in the world is he to do about this, Your Honor?"

Wesley: "It may well be that one can't run that business in that location. Maybe that's the answer....Pig farms make a good living for people, but in our community we don't let there be a pig farm."

Pig farms may be illegal in Seattle, but licensed, taxpaying, family-owned taverns such as Uncle John's and Oscar's II are not. These businesses have employed dozens of people, served hundreds of loyal customers, contributed to cultural diversity, generated property tax revenue, put kids through college, and provided retirement nest eggs. Clayton's entire savings were invested in his tavern. Now the 64-year-old former businessman works as a janitor at the Kingdome to make ends meet.

Attorney Richard Shepard of the Tacoma-based Northwest Legal Foundation, a property rights advocacy group, wonders "if the Seattle Parks Department was unable to control drug trafficking in Freeway Park, whether the city would sue the Parks Department for abatement." No such cases against publicly owned drug hotspots such as Freeway Park, Cowen Park, the Kingdome, or the King County Courthouse have been filed by Sidran to date.

Etta Mae Franklin, Rose Ervin, Mae Fosha, Preston Scott Sr., Westerton Currie, Dean Falls, Oscar McCoy, and John Clayton have two things in common: They were all targets of drug abatement by City Attorney Mark Sidran, and they all happen to be black. Sidran emphasizes that his aggressive abatement campaign "is not about race" but about reducing crime. Yet the Seattle Police Department reported in August that the number of gang-related drug arrests in the city skyrocketed from 168 in 1992 to 397 in 1997.

Sidran dismisses community concerns about racism as "too fantastic." Yet of the 28 cases I was able to review through public records requests or through the King County Courthouse, all but five involved black homeowners or black small-business owners. Only one out of the 28 involved a white property owner. In other words, Sidran lodged 96 percent of these drug abatement cases against minorities in a city where minorities make up roughly 25 percent of the population.

Moreover, of the cases I reviewed and mapped out, nearly 90 percent were located in the Central District and Rainier Valley areas. The city might reasonably argue that drug abatement cases are concentrated in these neighborhoods, where most of Seattle's black residents live, because that is where most drug crimes occur. The data that would be needed to back up that explanation--drug arrest figures broken down by neighborhood or precinct--are not available from the Seattle Police Department.

But a comparison of other law enforcement statistics for 1997 shows that black neighborhoods do not account for a disproportionate share of the city's other major crimes. In fact, the predominantly white West Precinct reported twice as many thefts as the predominantly black East Precinct and substantially more robberies, assaults, and auto thefts. All are crimes associated with drug activity. Given these data, it's reasonable to expect a far more even distribution of drug abatements between the two precincts than the pattern that seems to be emerging. Questioned on this point, the Seattle Police Department does not have an explanation for the discrepancy.

Does Seattle engage in deliberate racial discrimination, or is something more subtle at work? Some of the minority abatement targets are in areas slated for urban redevelopment. Critics also note that property owners in Seattle's black, working-class neighborhoods have fewer resources with which to contest abatement actions. Or perhaps it's a case of looking for the keys next to the lamppost: A his-tory of conspicuous drug activity invites heightened scrutiny and enforcement in certain neighborhoods, even though the drug problem has spread beyond those areas.

Adding to the racial tension are animal analogies like the "pig farm" comparison used by Judge Wesley. In a recent deposition involving the closure of another nightclub that catered to black patrons, Sidran said: "When you're confronting a recurring, repetitive, long-standing problem, at some point...you begin to think about draining the swamp instead of constantly chasing the alligators down one by one." He repeated that reasoning in the city's appeals brief in the Oscar's II case, complaining that the continued operation of the McCoys' business would force "the police to pursue the problem one suspect at a time."

Lindsay Thompson, a Seattle attorney who handled 300 drug felony cases as a deputy prosecutor for Cowlitz County, is troubled by the city's use of the drug abatement statute against law-abiding people like the McCoys: "It sends an oppressive message to the community when you work with citizens one day and then blame them for crime they can't possibly control on their own. That should make anybody rise up in outrage." Thompson--who lives in Seattle's Central District, just a few blocks from Oscar's II--adds, "Sidran's swamp analogy is faulty. The last thing we as servants in law enforcement should be doing is destroying the village to save it."

Reason Magazine - Staff

Seizure Disorder