Should you lose your business if a handful of your customers break the law without your knowledge or consent? The Philadelphia District Attorney says yes. In 2008, the DA filed a civil asset forfeiture action against Danny Boy's II, a corner bar in the Holmesburg neighborhood of northeast Philly suspected of being a "nexus" for drug activity.
Civil forfeiture, a practice recently labeled "state-sanctioned theft" by a Pennsylvania judge, allows the government to seize assets—cars, cash, homes—without first, or ever, proving that the property's owner committed a crime. Danny Boy's II owner Tammy McClurg was never even charged with one.
But the Commonwealth of Pennsylvania ordered her to shut down for nearly two years while she fought the taking. In addition to paying legal fees, McClurg, a single mother of three, had to keep up on mortgage payments, utility bills, and taxes for the bar, her sole source of income.
Philadelphia police had arrested several patrons in and around the bar, including her (now former) brother-in-law and the nephew of a contractor hired to do electrical work, for dealing drugs.* McClurg told the court that she did what she could to prevent illegal activity, a tall order in what is a pretty rough neighborhood. At trial, a police officer testified that drug dealing in the area is constant: "Work hours. School Hours. 24/7."
According to a recent Philadelphia City Paper investigation, the DA brings hundreds of forfeiture cases against real estate each year, and it splits the proceeds with the Philadelphia Police Department. Combined with seizures of cash and other property, the DA and police rake in around $6 million annually from forfeitures. Few cases ever reach a neutral arbiter—owners must attend multiple rounds of hearings run by assistant district attorneys before they see a judge—and even when they do the deck is stacked against them.
From the City Paper:
…Having one's day in court is no guarantee of success, either: The burden of "preponderance of evidence," unlike that of proof beyond a reasonable doubt, means that the DA doesn't have to present an airtight case—just one that strikes a judge (or, in rare cases, a jury) as even slightly more believable than that of the respondent.
The government's case against Danny Boy's II was apparently not convincing. Last year, a trial judge found that McClurg had proven she was an innocent owner, ending what she called a "nightmare." That outcome is vanishingly rare. According to the City Paper, a judge rejected forfeiture in only 48 of the 8,000 cases filed in 2010—0.6 percent.
All told, the bar (and the apartments above it and the liquor license) were in limbo for two-and-a-half years. (A judge allowed McClurg to re-open in 2010 pending the outcome of the trial.) The Commonwealth did not appeal.
Click here to read about the Commonwealth's attempt to seize the Philadelphia home of a septuagenarian dialysis patient.
H/T Wally Zimolong.
*McClurg's now ex-husband, who worked in the bar as a maintenance main, is in federal prison for drug crimes. But, according to his indictment, his crimes had nothing to do with the bar; the forfeiture petition makes no mention them. He had no ownership stake in the bar.