Civil Asset Forfeiture

After the Cops Seized Her Car, the Government Waited Five Years Before Giving Her a Chance To Get It Back

In Massachusetts, Malinda Harris argues, civil asset forfeiture routinely violates the right to due process.

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On March 4, 2015, police in Berkshire County, Massachusetts, seized Malinda Harris' 2011 Infiniti G37 because her son, Trevice, was suspected of selling drugs. Although Harris had let Trevice borrow her car, the cops never alleged that he used it for drug dealing or that she knew about her son's illegal activity. Harris heard nothing more about her purloined property until October 2020, more than five years after the seizure, when she was served with a civil forfeiture complaint that had been prepared the previous January.

In a state court motion filed last week, Harris argues that the unconscionable delay in giving her a chance to recover her car was a due process violation that by itself justifies its immediate return. Massachusetts invites such abuse, she says, because its civil forfeiture law "does not provide any deadline [by] which the Commonwealth is required to initiate forfeiture proceedings." The Phoenix-based Goldwater Institute, which represents Harris, cites several other constitutionally questionable aspects of the state's law, which epitomizes everything that is wrong with the practice of confiscating property by alleging that it is connected to crime, even when the owner has done nothing illegal.

According to the Institute for Justice, Massachusetts "has the worst civil forfeiture laws in the country." Massachusetts is the only state to earn an F in the latest edition of the organization's Policing for Profit report. It is not hard to see why.

As in most states, police in Massachusetts can seize property when they have "probable cause" to believe it was used for drug trafficking. But once they have met that minimal threshold, the burden of proof shifts to the owner, who must show that the property is not subject to forfeiture.

In this case, the government has offered no evidence that Harris' son, who left town after the seizure and was murdered three years later, used her car for drug dealing. While the forfeiture affidavit alleges that three other cars seized by police were used to transport drugs, Goldwater Institute senior attorney Stephen Silverman notes, "it contains no such allegations with respect to Harris' Infiniti." It says only that police found the title to the Infiniti in Trevice's bedroom and, upon searching the car, found "occupancy papers," two parking tickets, and a "Jiffy Lube receipt." That evidence, Silverman says, "is plainly insufficient to establish probable cause for the forfeiture."

Massachusetts allows innocent owners to seek the return of their assets unless they "knew or should have known that such conveyance or real property was used in and for the business of unlawfully manufacturing, dispensing, or distributing controlled substances." But it requires owners to prove their innocence, the reverse of the presumption that applies in criminal cases.

Silverman says that rule violates due process. And since the government can keep Harris' property even though she "has has no culpability at all," he argues, the state's legalized larceny also violates the Eighth Amendment's Excessive Fines Clause. "Punishment must be proportional to the property owner's wrongdoing," he says. "In the case of an innocent owner, any punishment would be disproportionate."

Even attempting to recover seized property requires hiring a lawyer, which costs thousands of dollars, a bill that in this case easily could have exceeded the market value of Harris' car. Since the Goldwater Institute is representing her for free, she does not have to worry about that obstacle, but most forfeiture victims are not so lucky. Since the value of seized property is typically less than the cost of trying to get it back, it usually makes more sense just to give up.

Even when a Massachusetts property owner can afford a lawyer, he cannot do anything until the government notifies him that it is proceeding with the forfeiture, which in this case happened 68 months after the seizure. "The Commonwealth has offered no justification for why it took almost five years to file this suit or another 10 months to serve it," Silverman says. "This lengthy, unexplained delay deprived Harris of due process and requires that the Complaint be dismissed."

More generally, Massachusetts "does not dictate that owners be provided prompt,
post-seizure hearings to challenge, among other things, the validity of the seizure and the continued retention of the property pending the forfeiture proceeding's final outcome," Silverman says. "This omission creates too big of a risk of erroneous deprivation."

And did I mention that the Berkshire County Law Enforcement Task Force, which seized Harris' Infiniti, and the Berkshire County District Attorney's Office, which is pursuing the forfeiture, get to keep all the proceeds from selling the car? That financial incentive, Silverman says, also violates due process, because it creates a "temptation to overzealously pursue forfeiture cases." It also encourages police to prioritize profit above public safety.

If police and prosecutors did not have a financial stake in civil forfeiture, they probably would be much less resistant to changes that threaten to derail the money train. Although the Bay State's especially odious forfeiture racket has provoked criticism for years, opposition from law enforcement agencies so far has doomed all reform efforts.

"Civil asset forfeiture abuse will only stop when people stand up to and fight against these abuses," Silverman says. "I admire Malinda's courage and strength and look forward to Malinda getting her day in court."

NEXT: Paul Krugman Thinks You'll Be Happier With Fewer Choices. Nonsense.

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  1. Liz Warren is working to end this in Massachusetts, right?
    *checks other articles from today*
    Never mind, the greedy bitch wants to confiscate more wealth from the populace.

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  2. The left always gets away with its version of racism and sexism, and then somehow blames it on the right.

    1. So pagan altruists addled by racial collectivism blame everything on mystical altruists addled by racial collectivism, and “everything” has to mean the initiation of force communists AND fascists so earnestly revere. What else is new?

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  3. See? Five year plans work in socialist places.

  4. I’ve got friends in The Commonwealth and I’m so glad I don’t live there.

    1. “I’ve got friends in The Commonwealth and I’m so glad I don’t live there.”

      Friends don’t let friends live in Massa2shits.

  5. I agree this is terrible. But at the same time it’s the result of the war on drugs and therefore if you believe in addiction (which justifies the war) then I honestly don’t have much sympathy for you. These kinds of abuses are the inevitable consequence.

    1. You’re posting on the wrong site. Libertarians are the only people in America who are consistently opposed to the War on Drugs.

      1. As long as you believe in addiction, you are justifying government abuses of one kind or another. Even if you save yourself, then someone else will get pummeled. The only solution is to accept that drug use is completely voluntary. Then we can wind down the law enforcement and medical apparatuses that will otherwise oppress us. That’s the true libertarian position.

        1. You are saying addiction does not exist?

          1. I’m saying as long as you push addiction doctrine, you are a threat to my freedom. That’s the real libertarian position.

            1. I oppose criminalizing drug use. Have also witnessed a person going through opiate withdrawal. It was horrific. Have also seen someone unable to not drink. And when she drank, it was a three day bender.

              1. You are a threat to my freedom. Well, thanks at least for making it obvious. I have little sympathy for you if you are a victim of the drug war.

                1. People going through and recognizing the consequences of substance abuse are not a threat to your freedom until they create policy that allows police to fuck with your life.

                  1. You are confusing substance abuse and addiction. It’s a common mistake, although it is crucial for understanding the threat of addiction mythology.

                    1. and youb are an actual science-denier idiot.

                      I am pro-legal prostitution, but I also believe in VD

                    2. You’re good at insults – you’d be a great member of AA. But as long as you believe in addiction, you are a threat to my freedom.

                2. I’m not involved in the drug war except I am forced to fund it. If you want to believe that a methadone patient is abusing the drug and not really addicted to opiates, then go for it.
                  Alcohol is legal. And the alcoholic uses Uber. So her addiction is not a part of the drug war.
                  These conditions are not a threat to your freedom nor is me accepting their conditions. But you can be addicted to an alternate reality.

              2. Don’t feed the trolls, this guy is just playing with you.

            2. The only addicts I know personally are addicted to alcohol.
              It would be amusing (if I’m lucky) to hear how this fact is a threat to your freedom.

              1. Go to your local AA meeting and see for yourself.

                1. AA never hurt me

                  1. AA’s ideology is anti-libertarian. Which is fine, but as long as you believe it, you’re a threat to freedom. I think it’s great to help the people in these articles, but they have to show some inclination to help themselves. Otherwise it’s a waste of time and the government will just figure out another way to oppress us under the pretext of protecting us from ‘addiction’.

                    1. Taking responsibility for your own actions is anti-Libertarian?

                2. I’ve been to AA meetings.

                  How many have you been to?

                  Anyway, as I said, it would be amusing to hear how AA is a threat to your freedom. Simply asserting it is so is not an explanation.

              2. Don’t forget those low life caffeine addicts. They can’t even start the day without a hit of their mind altering drug. Wake and roast losers.

                Shirley a law could be passed to fix this. If only Comrade Stalin knew….

        2. As long as you believe in addiction

          You’re an idiot. Are you a junkie, or is your idiocy simply a matter of low intellectual capacity?

          -jcr

          1. I think hes saying addiction isnt a disease, its just weak minded people with a chemical dependency they let ruin their lives. And as someone who has at least one “addiction”, was raised by a person with several and lost a sibling because of one, if he is saying what I think he is, I agree with him.
            Calling it a disease just gives people an excuse.
            However, he might actually be saying that people cannot become physically or mentally dependent on a chemical substance, in which case, Im not sure what hes on about at all.

        3. The Haight Ashbury survival guide was de Ropp’s “Drugs and The Mind.” That M.D. explained that only opiates and barbiturates qualify as addictive, and made no coercive recommendations either way. Nowadays Twinkies, older women, younger babes, tobacco, stimulants and whatnot are tarbrushed as “addictive” because reefer madness pseudoscience says to coerce. The coercion is by definition life-threatening, so the LP platform has opposed it from the outset.

    2. It’s possible to believe in addiction without believing that it justifies prohibition/the war on drugs.

      The was on drugs = the cure worse than the disease.

      1. Of course it’s possible to believe that. The problem is that you have to convince other people of that too, and that’s impossible. At best they will medicalize it, which causes a raft of new problems. Like, try getting pain relief after your next accident.

        Anyway like I said, I have no sympathy for victims of the drug war as long as they believe in addiction.

    3. re: “if you believe in addiction”

      What the hell are you talking about? I don’t need to “believe” in addiction. I can see it. It is an observable, biologically repeatable physiological phenomenon. It is, however, not a valid basis for the misnamed “war” on drugs or for any of the draconian punitive prohibitions.

      If the phrase “addiction myth” has some specialized meaning to you, you’re going to have to explain it to the rest of us. Or at least provide a link. Because without it, you’re coming across as an incoherent loon trying to deny easily observed facts.

      1. He will never explain it. It’s his ideology. He asserts aspects of his ideology, but because it’s simply dogma, it can’t be explained. So it will never be explained.

      2. The “myth” part of this is drug policies that basically assume that everyone who ever used an unapproved drug, even once, became instantly addicted – except for elected politicians…

    4. So, the ends justifies the means based on the incredibly false logic of addiction justifies the war. You support abuses and terribleness with no sympathy. GTFO

  6. “Although the Bay State’s especially odious forfeiture racket has provoked criticism for years, opposition from law enforcement agencies so far has doomed all reform efforts.”

    Damned Republicans.

    1. There has been more democrats in charge in the state that republicans.

      1. Really?

      2. Curly, you need to fix your sarcasm detector.

    2. Not really a partisan issue, police have a ton of political power in Massachusetts.

  7. I believe that according to Eric Holder (who?!!) she received due process.

  8. When these state, county and city agencies are slapped hard enough for doing things like this they will quit it. When it hurts (usually a very large payout) for what they have done then the politicians will get involved and it will stop.

  9. Democrats. Feh.

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  11. 5 years the car has declined in value, maintenance not kept up. Old fluids can cause damage even if not being used. Rubber and other gets old and brittle from being in storage. Plus of course the 5 years of lost use of the vehicle.

    1. What makes you think it was sitting in storage? In 2015, and 2011 Infiniti G37 was a pretty hot car. Even money that the cops were driving it around during the five years it’s been impounded. Now that it’s a 10 year old car, they don’t want it anymore, so they start the proceedings (but knowing that the value has declined enough that it’s probably not worth her while — and it wouldn’t be without the pro-bono representation)

    2. Justice isn’t giving her the car back after 5 years. Justice is seizing the chief prosecutor’s best car and giving it to her, along with 5 years of transportation expenses seized from the police retirement fund. Then firing and permanently disbarring every prosecutor or judge that ever touched this case.

  12. Massachusetts “has the worst civil forfeiture laws in the country.”

    Any act of a legislature that violates the fifth amendment is not a law, it’s an act of usurpation.

    This woman’s car was STOLEN, not “confiscated”.

    -jcr

  13. So, if someone mails drugs, this law would allow Massachusetts to seize post offices, and postal trucks.
    Everyone’s a criminal, and the government gets to choose who to apply it’s laws to.

  14. Prohibition laws are what asset forfeiture looting uses as a pretext for coercion. What even Sullum ignores is that such laws against trade and production are what caused the Panic of 1907, the Crashes of 1920 and 1929, the fractional-reserve banking panics of 1930-33, the Nixon recession of 1971, the Reagan Crash of 1987 and Georgie Bush’s faith-based rampage of asset forfeiture that wrecked the economy in 2008. Putting money in a bank is a confiscation hazard, and the fact weakens fractional-reserve banking.

  15. “The whole good cop/bad cop question can be disposed of much more decisively. We need not enumerate what proportion of cops appears to be good or listen to someone’s anecdote about his Uncle Charlie, an allegedly good cop. We need only consider the following: (1) a cop’s job is to enforce the laws, all of them; (2) many of the laws are manifestly unjust, and some are even cruel and wicked; (3) therefore every cop has agreed to act as an enforcer for laws that are manifestly unjust or even cruel and wicked. There are no good cops.” ~Robert Higgs

  16. “The great masses of men, though theoretically free, are seen to submit supinely to oppression and exploitation of a hundred abhorrent sorts. Have they no means of resistance? Obviously they have. The worst tyrant, even under democratic plutocracy, has but one throat to slit. The moment the majority decided to overthrow him he would be overthrown. But the majority lacks the resolution; it cannot imagine taking the risks.” ~ H. L. Mencken (1926). “Notes on Democracy,” p. 50, Alfred A. Knopf
    “And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family? Or if, during periods of mass arrests, as for example in Leningrad, when they arrested a quarter of the entire city, people had not simply sat there in their lairs, paling with terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing left to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or whatever else was at hand?… The Organs would very quickly have suffered a shortage of officers and transport and, notwithstanding all of Stalin’s thirst, the cursed machine would have ground to a halt! If…if…We didn’t love freedom enough. And even more – we had no awareness of the real situation…. We purely and simply deserved everything that happened afterward.” ― Aleksandr I. Solzhenitsyn , The Gulag Archipelago 1918–1956

  17. What makes you think it was sitting in storage? In 2015, and 2011 Infiniti G37 was a pretty hot car. Even money that the cops were driving it around during the five years it’s been impounded. Now that it’s a 10 year old car, they don’t want it anymore, so they start the proceedings (but knowing that the value has declined enough that it’s probably not worth her while — and it wouldn’t be without the pro-bono representation)

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