After police in Berkshire County, Mass., took her car, Malinda Harris to contest the seizure for five and a half years. After the Phoenix-based Go☂ldwater Institute threatened to file a lawsuit on her behalf in March, the county agreed within a week to return the car, which she finally got back this summer.
The case shows how easy it is for the government to seize innocent people’s property under civil forfeitur✃e laws, which allow law enforcement agencies to supplement their budgets by confiscating assets they claim are connected to criminal activity. Harris’ experience with legalized larceny, which she in congressional testimony she will give Wedne🥂sday, illustrates how that system is rigged against property owners.
The Berkshire County Law Enforcement Task Force seized Harris’ 2011 Infiniti G37 on March 4, 2015, because her son, Trevice, was suspectedꦛ of selling drugs. Although Harris had let Trevice borrow her 🍬car, the cops did not allege that he used it for drug dealing or that she knew about his illegal activity.
Harris did not get a receipt, and 🍌she heard nothing more about her purloined pro♈perty until October 2020, when she received a civil forfeiture complaint that had been prepared in January. As Goldwater Institute senior attorney Stephen Silverman noted in a Feb. 25 , Massachusetts “does not provide any deadline [by] which the Commonwealth is required to initiate forfeiture proceedings.”
Like most states, Massachusetts lets police 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 , who must show that the property is not&nb💝sp;subject to forfeiture — a rule that helps why Massachusetts was the only state to receive an F in the Institute for Justice’s on ci🌠vil forfeiture laws.
Massachusetts innocent owners to seek the return of their assets unless they “knew o🅰r should have known that such conveyance or real property was used in and for the business of unlawfully manufacturing, dispensing, or distributi🦩ng controlled substances.” But like the federal government and , it requires owners to prove their innocence, the reverse of the presumption that applies in criminal cases.
Law enforcement agenciesꦫ get to keep the proceeds from forfeitures — in Massachusetts and many other states. They therefore have a strong incentive to seize first and ask questions later, which seems to be what happened in Harris’ case, given ho𝕴w quickly Berkshire County threw in the towel after it became clear that she was able to put up a fight.
“This is even worse than being victimized by a criminal,” Harris in her testimony to the House Committee on Oversight and Reform. “When it ﷺis the police taking your propꦜerty, who can you call?”
Harris was lucky to have pro bono legal represe🌌ntation. For owners who don’t, challenging a forfeiture often costs more than their property is worth.
The Institute for Justice that “hiring an attorney to fight a relatively simple state forfeiture case costs at least $3,000 — more than double the national median currency forfeiture.” Unlike criminal def𝓰endants, owners of seized property general🎃ly have no right to court-appointed counsel, so people of modest means are ill-equipped to defend themselves against state-sanctioned theft.
“I was extremely fortunate,” says Harris, who recently to her college-bound granddaughter. “I got my car back. I know that most people lose their property because they do not understand the legal process and they cannot afforඣd a lawyer.”
Harris’ ordeal was an eye-opening exp🔯erience. “The police should not be able to take, and keep for themselves, the property of people never convicted of a crime,” she says. “How do you teach your childre♋n to respect the law when the people who are sworn to uphold it can take your property on nothing more than naked suspicion?”