Forfeiture Folly

Cover Your Assets

For most of their lives, Luther and Meredith Ricks worked at a steel foundry near Lima, Ohio. They say they've lived frugally and managed to save more than $400,000 over the years; they don't trust banks, so they kept their savings in a safe in their house.

In June 2007 two burglars broke into the couple's home. Luther and his son were attacked, and his son was stabbed before the elder Ricks was able to shoot and kill one of the intruders. The local police determined that he acted in self-defense and cleared him of any criminal wrongdoing. But they also found a small amount of marijuana in the house, which Ricks says he was using to manage the pain from his arthritis and a hip replacement surgery.

Ricks was never charged for the marijuana. Asset forfeiture laws nonetheless allowed the police to confiscate the couple's life savings. Although the federal government had nothing to do with the burglary investigation, the Federal Bureau of Investigation soon stepped in and claimed the money for the feds.

Such seizures were supposed to become more difficult after Congress passed the Civil Asset Forfeiture Reform Act in 2000. But David B. Smith, author of the legal casebook Prosecution and Defense of Forfeiture Cases, says the courts have been steadily mitigating the 2000 bill's impact, both by narrowly interpreting the protections it grants defendants and by being overly deferential to prosecutors when determining if they've met the new evidentiary standard. One provision of the law, for example, says explicitly that the government must reimburse defendants for court and attorneys fees in forfeiture cases the government loses. But Smith argued a case in 2007 in which the 3rd Circuit Court of Appeals refused to reimburse the legal fees of several defendants who were able to reclaim money seized by federal agents from a courier.

Ricks told a local newspaper the FBI informed him he has to prove he earned the money legitimately to get it back. Smith says that's not quite correct. The 2000 law shifted the burden of proof from the owner of the seized property to the government, although it's still a lower evidentiary standard than in a criminal case. "The FBI would need to show by a preponderance of the evidence that Ricks earned the money through illegal drug sales," Smith says. Unless the bureau comes up with more evidence, that seems unlikely, given that the amount of marijuana in Ricks' home was small enough that he wasn't even charged.

Of course, most people in Ricks' position aren't familiar with the latest developments in forfeiture law. And they can't afford to hire a lawyer who is, because the government has taken all of their money. At press time, several advocacy groups were mulling plans to offer Ricks legal representation.