Doug Quattrochi
A bill recommended by the Senate as “ought to pass” would reform Massachusetts laws on civil asset forfeiture. This much-needed reform has been called for by real estate advocates for years, but we’ve gained traction by showing how property rights matter most to those with the least. Consider the law as it stands today, applied not to an owner of real estate (we’ll come to this), but to a renter who owns little more than their car.
Our renter loans their car to their cousin so he can buy groceries. Unbeknownst to our renter and without their permission, the cousin takes the car on some errands, including a stop to sell some fentanyl. But he gets caught and arrested. If the arresting officer believes taking our renter’s car is necessary to stop future illegal drug sales, they can take the car without compensation to our renter.
Note that our renter doesn’t have to be arrested or charged. That’s why it’s called civil (as opposed to criminal) asset forfeiture. They need not be accused of any crime! Their cousin used their car, therefore their car is part of a criminal enterprise and forfeit.
Motel Case Highlights Issue
For our hypothetical renter, loss of their car will set off a chain reaction of disasters, up to and including unemployment and eviction. Incredibly, if they choose to protest the forfeiture, they have the burden of proof to undo it. “Innocent until proved guilty” is a concept from criminal law and therefore does not apply to civil asset forfeiture. If they can’t figure out how to prove their case, or if the attorney they would hire costs more than the car, that car is as good as gone.
To make matters worse, the arresting officer can benefit from that forfeiture. Imagine our renter had an expensive car. (Haven’t we seen this before!) Sold at auction, that car could afford the police department a lot of overtime. Such a sale is legal, and very enticing! Or if the officer chooses, they can drive the nice car for themselves, as one New Mexico city solicitor advised his officers to do.
In 2021, the Massachusetts legislature produced a report detailing how civil asset forfeiture affects commonwealth residents. The commission found that we seized over $20 million in assets from 2017 to 2019. Assets seized include a lot of cash, over 600 cars and lots of other petty shakedowns including watches, phones, shoes, GPS systems, jewelry and more. Half of all assets seized total less than $5,000. The smallest amount of money taken was $6.20.
Either the mafia lost it all in bitcoin, or civil asset forfeiture must be disproportionately impacting low-income Massachusetts residents, especially renters. Property owners of all sizes should be entitled to due process. And landlords want renters who are wealthy, stable and able to pay rent.
Nowhere is civil asset forfeiture more damaging economically than when applied to real estate. For example, in 2011 the owner of the Motel Caswell in Tewksbury had successfully rented over 196,000 rooms, but 19 of those rentals ended in a drug bust. 99.99 percent of all rentals were law abiding, yet in combination with local law enforcement, federal authorities attempted to seize the entire motel with no compensation to the owner.
With the help of the Institute for Justice, this owner succeeded in defending himself. Most are not so ably helped. At least one other of our members has been threatened with forfeiture and compelled to sell at a loss.
S.2944 Would Fix the Most Glaring Issues
The language of Senate Bill 2944 would make four needed improvements.
First, the burden of proof would shift from all property owners to the police. This would substantially increase the recoverability of seized assets, especially where the owner is lower-income. The district attorneys have to put in the effort.
Second, the standard by which assets are seized would rise from “probable cause” (the lowest standard) to a “preponderance of evidence.” This would substantially decrease the likelihood assets are seized in the first place.
Third, all owners would have a right to counsel. In other words, the state will pay for an attorney to help the renter from my earlier example get their assets back. This will help in myriad ways, most notably in cases like Timbs v. Indiana, in which a seized Land Rover resulted in exactly the downward spiral I described above.
Fourth, the broken incentive would be fixed. Now instead of a seizing officer having use of the car or assets themselves, proceeds from sale of forfeited assets must pass through state supervision. But this bill does not defund the police. The money from forfeited assets remains available for police budgets, just with state and public supervision.
Overall, this reform would be the single largest expansion of property rights in Massachusetts in a great long while. And it’s happening not because landlords want it but because property rights are universal, and most important where least enjoyed.
Civil asset forfeiture dates back to the British Navigation Acts of the 1600s. It’s long past time for Massachusetts to declare independence from it.
Doug Quattrochi is executive director of MassLandlords Inc.
