Amicus Curiae Brief — Ethicon, Inc. v. Eisenmenger

. 7 — ae —E—ê .

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the Due Process Clause of the Fourteenth

Amendment precludes a State from forfeiting a wife’s

interest in a car that her husband, a co-owner of the

car, used in violation of state law, when the wife did

not know that he would use it illegally.

(I)

TABLE OF CONTENTS

Page

Interest of the United States 1

Z rr 2

e tices nncresnascnenenensncnasessesessccosscccccoes 5

Argument:

The abatement of the vehicle comports with the Due

Process Clause of the Fourteenth Amendment 7

A. The Constitution bars the punitive forfeiture of

property when the owner alleges and proves that

he took all reasonable steps to prevent illegal use

J. cncaceattancctnccnessecctsesscnccescccsccccsceccececcce 7

B. The “all reasonable steps” standard does not apply

to all forfeitures or all elaimants 16

C. Petitioner has not satisfied the “all reasonable steps”

1 22

D. The Court should reject the innocent owner stand-

ard that petitioner propose 26

G ————T—bᷣmͥ——ꝛxꝛ Cf. 30

TABLE OF AUTHORITIES

Cases:

American Society of Mechanical Engineers, Inc. v.

Hydrolevel Corp., 456 U.S. 556 (1982) 20

Austin v. United States, 113 S. Ct. 2801

ESS 10, 11, 20, 24

C.J. Hendry Co. v. Moore, 318 U.S. 133 (1943) 23

Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.

rener passim

Concrete Pipe & Products of California, Inc. v. Con-

struction Laborers Pension Trust, 113 S. Ct. 2264

EES, Ee ea a a ae TOT 24

Dobbins’s Distillery v. United States, 96 U.S. 395

„„! 8

Dolan v. City of Tigard, 114 8. Ct. 2309 (1994) 15-16, 24

Grosfield v. United States, 276 U.S. 494 (1928) 18

Helvering v. Mitchell, 303 U.S. 391 (1938) ..... 24

(IID

IV

Cases—Continued: Page

J. N. Goldsmith, Jr.- Grant Co. v. United States,

III T 8. 9, 11. 16

Lucas v. South Carolina Coastal Council, 112 S. Ct.

1K 000 .. 18, 24

Martin v. Ohio, 480 U.S. 228 (1987) 24

Mathews v. Eldridge, 424 U.S. 319 (1976) 24

Mugler v. Kansas, 123 U.S. 623 (1887) 18

New York Central R.R. v. White, 243 U.S. 188 (1917) .. 19

One Lot Emerald Cut Stones v. United States,

GED TED, GE CRITE . 18, 24

One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S.

00 18

Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1

— en ((( 20

Peisch v. Ware, 8 U.S. (4 Cranch) 347 (1808) 14

People v. Schoonmaker, 216 N.W. 456 (Mich. 1927) ..... 4

Redford v. United States Dep't of Treasury, 691 F.2d

471 (10th Cir. 1982) — 25

Southeastern Telegraph & Telephone Co. v. Danaher,

e 14

State v. 1979 Pontiac Trans Am, 487 A. 2d 722 (N.J.

1 — ——-—-— W 12

State ex rel. Cahalan v. Bernstein, 226 N. W. 2d 56

e 17

State ex rel. Macomb County Prosecuting Attorney v.

Mesk, 333 N.W.2d 184 (Mich. Ct. App. 1983) .............. 17

Sweet v. Rechel, 159 U.S. 380 (1895) 18

TXO Production Corp. v. Alliance Resources Corp.,

BID BS Ce. SIRE CAGED . 14

The Palmyra, 25 U.S. (12 Wheat.) 1 (1827) . 7

Threlkeld v. State, 586 So. 2d 756 (Miss. 1991) ............. 12

United States v. Boynton, 297 F. 261 (E.D. Mich.

| EE Ä -- —-—ĩ 18

United States v. Cargo of Brig Malek Adhel, 43 U.S.

PN a ee 78

United States v. Jeffers, 342 U.S. 48 (196)) ................. 18

2

*

V

Cases Continued: Page

United States v. 1966 Beechcraft Aircraft, 777 F. 2d

1 —— . 11-12, 29

United States v. 92 Buena Vista Avenue, 113 S. Ct. 1126

oe — 8

United States v. One Assortment of 89 Firearms,

else. ——— 18

United States v. One Blue Lobster Vessel Named Tony,

Jr., 639 F. Supp. 865 (S.D. Fla. 1986) .. .... 29

United States v. One Ford Coupe Automobile, 272 U.S.

111 r 8

United States v. One 1980 Bertram 58' Motor Yacht,

pe NL ee 12

United States v. One 1986 Chevrolet Monte Carlo,

817 F. Supp. 729 (N. D. III. 1993) . . .. 21

United States v. One 1983 Homemade Vessel Named

“Barracuda,” 858 F.2d 643 (11th Cir. 1988) 18

United States v. One 1982 28' International Vessel,

741 F.2d 1819 (Lith Cir. 160 . 12

United States v. One 1957 Rockwell Aero Commander

680 Aircraft, 671 F.2d 414 (10th Cir. 1982) .................+. 12

United States v. One 1970 Pontiac GTO, 529 F.2d 65

1 K — Q 23

United States v. One 1971 Chevrolet Corvette, 393 F.

Supp. 344 (E.D. Pa. 1975 ———t.—̈.̃(———————— 28

United States v. One 1976 Cessna Model 210L Aircraft,

890 F.2d 77 (Sth Cir. 1989) 11

United States v. One 1976 Lincoln Mark iV, 462 F.

Supp. 1383 (W. D. Pa. 1979) ..... .. . 30

United States v. One 1973 Buick Riviera Automobile,

| obey t f¢ | |) . 28

United States v. 141st Street Corp., 911 F.2d 870 (2d

Cir. 1990), cert. denied, 498 U.S. 1109 (1991)... 2, 12, 20-21, 29

United States v. One Parcel of Land Located at 7326

Highway 45 North, 965 F.2d 311 (7th Cir. 1992) .......... 20

United States v. One Parcel of Property with Bldgs.,

Appurtenances & Improvements, 960 F. 2d 200 (Ist Cir.

Cases—Continued: Page

United States v. One Parcel of Real Estate, 852 F.

Supp. 1013 (S.D. Fla. 10000 21

United States v. One Parcel of Real Estate Consisting

of Approximately 4,657 Acres, 730 F. Supp. 423 (S. D.

211. — — 21

United States v. One 1980 Stapleton Pleasure Vessel

Named Threesome, 575 F. Supp. 473 (S.D. Fla. 1983) .. 29

United States v. One Tintoretto Painting, 691 F.2d 603

E. a . ee 12, 24

United States v. Park, 421 U.S. 658 (1975) .................. 15

United States v. Santoro, 866 F.2d 1538 (4th Cir.

————̃ —V.—t ˙—³ 0 — ͥ ͤ—— 23

United States v. $6,700 in U.S. Currency, 615 F.2d 1

I.. .. . 12

United States v. $69,292 in U.S. Currency, No. 93-56545

08 Raum, F, SEGED ccccseveccscsistsncitiicamattiiintncitenitininan 11

United States v. $250,000 in U.S. Currency, 808 F. 2d

ee oe 23

United States v. 228 Acres of Land & Dwelling, 916

F. 2d 808 (2d Cir. 1990), cert. denied, 498 U.S. 1091

(| Fe a ae a ee 23

United States v. $2,500 in U.S. Currency, 689 F.2d 10

(2d Cir. 1982), cert denied, 465 U.S. 1099 (1984) ........... 23

Van Oster v. Kansas, 272 U.S. 465 (1926).... 5, 8, 9, 11, 16, 19

Young v. Masci, 289 U.S. 253 (1933) (( 19

Constitution, statutes and regulations:

U.S. Const. :

Amend. V (Just Compensation Clause 9, 15-16

Amend. VIII (Excessive Fines Clause 11

JD . Ss en ee ane 12, 15

III... cc 12. 14

II — 2 . 1

II cc ee aS 1

19 U.S.C. 1595 (1988 & Supp. V 1993) 1

1? a ae et 22

RS a 18

1 11

VII

Statutes and regulations Continued:

31 U.S.C. 5317 (1988 & Supp. V 1993)... . ..

Mich. Comp. Laws Ann. (West 1987):

§ 600.3801 (Supp. 1995) ..... . . . . ..... . . . . . .. . .

28008... ———

2888... — ——

N. J. Stat. Ann. § 2C:64-5(b) (West Supp. 1995) ..............

121 —— .

Miscellaneous:

7A Am. Jur. 2d Automobiles & Highway Traffic (1980)

52 Fed. Reg. 11,437-11,438 (1987) . . .. ...... ..

W. Prosser, Handbook of the Law of Torts (4th ed.

TED ccncctntiteinsecttenbenctettesntascecsccsncesteneieemsseasnesescsenmecsenes

— — ——

de doe de CNW te te dete

Ss

©

21

In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 94-8729

TINA B. BENNIS, PETITIONER

*.

STATE OF MICHIGAN

ON WRIT OF CERTIORARI

TO THE MICHIGAN SUPREME COURT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case concerns the extent to which the

Constitution limits the forfeiture of property owned

by a person who was unaware of and uninvolved in the

criminal conduct on which forfeiture was based. The

United States seeks forfeiture of the proceeds and

instrumentalities of criminal activity under various

federal statutes. Although many of those federal

statutes expressly limit the forfeiture of the property

of an “innocent owner,” some of them do not. See 31

U.S.C. 5317 (1988 & Supp. V 1993); 19 U.S.C. 1595a

(1988 & Supp. V 1993); 18 U.S.C. 1955; 18 U.S.C. 545.

Moreover, some federal statutes that do contain inno-

cent owner provisions have been construed in light of

courts’ views of applicable constitutional limits. See,

(1)

e.g., United States v. 141st Street Corp., 911 F.2d 870,

877 (2d Cir. 1990), cert. denied, 498 U.S. 1109 (1991).

The Court’s decision in this case is therefore likely

to affect federal forfeiture proceedings.

STATEMENT

1. On October 3, 1988, two Detroit, Michigan, po-

lice officers saw petitioner’s husband, John Bennis,

stop the 1977 Pontiac he was driving and pick up a

woman in an area frequented by prostitutes. When

the officers approached the car moments later, they

saw Mr. Bennis and the woman engaged in sexual

activity in the front seat. Based on that incident, Mr.

Bennis was arrested and later convicted of gross in-

decency, in violation of Mich. Comp. Laws Ann.

§ 750.338b (West 1987). In addition, the prosecutor for

Wayne County, Michigan, brought an action against

Mr. Bennis and petitioner, as co-owners of the car,

seeking its abatement. J.A. 2-6, 46-47; see Mich.

Comp. Laws Ann. §§ 600.3805, 600.3810(2) (West 1987).

Michigan law declares that “[aJny * * * vehicle

* * * used for the purpose of lewdness, assignation,

or prostitution” is a nuisance. Mich. Comp. Laws

Ann. § 600.3801 (West 1987 & Supp. 1995). The law

authorizes an action for abatement against the

owners of the property alleged to be a nuisance. Mich.

Comp. Laws Ann. SS 600.3805, 600.3810(2) (West 1987).

In such an action, Aplroof of knowledge of the exis-

tence of the nuisance on the part of the defendants or

any of them, is not required.” Mich. Comp, Laws Ann.

§ 600.3815(2) (West 1987). The law provides that, when

a vehicle is found to be a nuisance, the court must

order its sale. Mich. Comp. Laws Ann. § 600.3825(1)

through (3) (West 1987). The proceeds of the sale are

used first to pay the expenses of the sale and then to

pay any liens “created without the lienor having any

notice that such property was being used or was to be

used for the maintenance of a nuisance”; any balance

goes into the general fund of the state treasury.

Mich. Comp. Laws Ann. § 600.3825(3) (West 1987).

In their answer to the complaint for abatement of

their car, the Bennises alleged as an affirmative de-

fense that the complaint “failed to plead any facts or

allegations that [petitioner] had any knowledge of the

alleged nuisance.” Answer at 3. They also alleged

that the abatement statute was unconstitutionally

“vague and overbroad” (ibid.), but they did not other-

wise challenge its constitutionality.

At a bench trial in the Third Circuit Court for

Wayne County, the prosecutor presented testimony

by the arresting officers and people from the neigh-

borhood of the arrest. A security guard who worked

in the neighborhood testified that he saw Mr. Bennis

solicit prostitutes in the area on two occasions before

his arrest. Tr. 144-145; see also J.A. 52-53. The only

defense witness was petitioner. She described how

she and her husband bought the car and then testified

as follows about her knowledge of his conduct (J.A. 9):

Q. Were you present with your husband when

he was driving home from work on October 3rd?

A. No.

Q. Did you have any knowledge that your

husband was going to do anything but come

directly home from work?

A. No.

Q. Do you have any knowledge of your husband

soliciting prostitutes?

A. No.

The trial court entered a judgment of abatement,

ordering the sale of the Bennises’ car. J.A. 27-28.

The court did not address petitioner’s claim that her

lack of knowledge of her husband’s illegal use of the

car barred the forfeiture. See J.A. 13-26.

2. The Michigan Court of Appeals reversed by a 2-1

vote. J.A. 29-44. It acknowledged that the abatement

statute appeared to make it irrelevant whether peti-

tioner knew of her husband’s illegal conduct. J.A. 31.

Relying on People v. Schoonmaker, 216 N.W. 456

(Mich. 1927), however, the court held that the statute

required the prosecutor “to demonstrate that defen-

dants knew of the use of the vehicle as a nuisance.”

J.A. 30. It also held that the record did not prove that

petitioner had such knowledge. J.A. 32. As an alter-

native ground for reversal, the court held that Mr.

Bennis’s conduct did not constitute a nuisance under

state law, because it was not continuing in nature and

because there was no “proof that the [sexual] activ-

itty] * * * [was] in exchange for [money].” J. A. 35.

3. The Michigan Supreme Court, by a 4-3 vote,

reversed the court of appeals’ decision and upheld

the abatement of the car. J.A. 45-97. Three justices

joined in a written opinion for reversal, and a fourth

justice concurred in that result. J.A. 45-71. The

three remaining justices dissented; two of them

issued written dissents. J.A. 71-88, 88-95.

The three-judge plurality concluded, first, that the

abatement comported with state law. J.A. 48-66. It

held that Mr. Bennis used the car for an act of “lewd-

ness, assignation, or prostitution” within the mean-

ing of the abatement statute, see J.A. 48-54, and there-

by contributed to the existence of a public nuisance,

see J. A. 54-63. It further held that, Jin light of the

plain language of the nuisance abatement statute” and

case law after Schoonmaker, “the statute expressly

obviates the requirement that an owner consent to or

acquiesce in the illegal use of the property.” J.A. 65.

The plurality next held that the forfeiture of

petitioner’s interest in the car did not violate the

federal Constitution. J.A. 66-70. It based that holding

on Van Oster v. Kansas, 272 U.S. 465 (1926), which

rejected a due process challenge to the forfeiture of a

vehicle by an owner who lacked knowledge of the

illegal conduct that formed the basis for the forfei-

ture, and on Calero-Toledo v. Pearson Yacht Leasing

Co., 416 U.S. 663, 683 (1974), which reaffirmed that

“the innocence of the owner of property subject to

forfeiture has almost uniformly been rejected as a

defense.” J.A. 66-68. In light of those decisions, the

plurality stated that petitioner’s claim of a lack of

knowledge of her husband’s illegal purpose “is with-

out constitutional significance.” J.A. 68.

Neither dissenting opinion disagreed with the plu-

rality’s analysis of the federal constitutional issue.

Indeed, one of the dissenting opinions, which was

joined by all three dissenting justices, stated that

“abating the property of innocent owners in forfeiture

actions arguably does not violate an owner’s constitu-

tional right to due process.” J.A. 80-81.

SUMMARY OF ARGUMENT

A. We agree with this Court’s suggestion in

Calero-Toledo v. Pearson Yacht Leasing Co., 416

U.S. 663 (1974), that the Constitution generally bars

the punitive forfeiture of property from an owner who

alleges and proves that he took all steps that rea-

sonably could be expected to prevent the illegal con-

duct that led to forfeiture. Applied in the present

context, the “all reasonable steps” standard is consis-

tent with this Court’s precedents and reasonably

accommodates governmental and private interests.

B. The “all reasonable steps” standard does not

necessarily apply in all contexts, however. The pres-

ent case involves the forfeiture of non-contraband

under a statute that the State has -indicated is

intended to be punitive, as applied in the present

context. This Court need not resolve the existence

and nature of an innocent owner defense in other

contexts. Moreover, respondent does not rely on

traditional principles of vicarious liability to contend

that petitioner should be deemed to have had

knowledge of, or responsibility for, the illegal conduct

that led to forfeiture. In an appropriate case, those

principles could defeat innocent owner status.

C. Under Calero-Toledo, petitioner bore the bur-

den of alleging and proving that she took all reason-

able steps to prevent the illegal use of her property.

Like the property owner in Calero-Toledo, petitioner

failed to plead or prove those issues. In particular,

petitioner did not allege or prove that she lacked

reason to know of the unlawful conduct and that she

took reasonable action under the circumstances to

prevent it.

D. This Court should reject the “reasonable en-

trustment” standard that petitioner proposes. In

many cases, an owner can reasonably be expected to

take precautions against illegal use of his property

after, as well as before, entrusting it to someone else.

The Court should also reject petitioner’s argument

that a spouse who lacks actual knowledge or reason to

know of illegal conduct by the other spouse can never

be expected to take affirmative precautions in regard

to jointly owned property.

ARGUMENT

THE ABATEMENT OF THE VEHICLE COM-

PORTS WITH THE DUE PROCESS CLAUSE OF

THE FOURTEENTH AMENDMENT

A. The Constitution Bars The Punitive Forfeiture

Of Property When The Owner Alleges And

Proves That He Took All Reasonable Steps To

Prevent Illegal Use Of The Property

In a long line of cases, this Court has upheld the

forfeiture of property that has been used illegally,

even though the owner of the property was unaware of

and uninvolved in the illegal use. The Court has also

suggested, however, that the Constitution might bar

a forfeiture if the owner alleges and proves that he

took all steps that could reasonably be expected to

prevent the illegal use. In our view, there are situa-

tions in which such a showing by an owner would

establish a constitutional defense. As applied in the

context of this case, the “all reasonable steps” stan-

dard recognizes the interest of blameless property

owners without thwarting the legitimate purposes of

forfeiture statutes.

1. In Calero-Toledo v. Pearson Yacht Leasing Co.,

416 U.S. 663 (1974), this Court reviewed its decisions

concerning “innocent owner” claims in forfeiture

cases. Surveying a consistent course of decisions,

the Court noted that “the innocence of the owner of

property subject to forfeiture has almost uniformly

been rejected as a defense.” Id. at 683 (discussing The

Palmyra, 25 U.S. (12 Wheat.) 1 (1827); United States

v. Cargo of Brig Malek Adhel, 43 U.S. (2 How.) 210,

233-235 (1844) (Story, J.); Dobbins’s Distillery v.

United States, 96 U.S. 395, 399-401 (1878)). See also

United States v. 92 Buena Vista Avenue, 113 S. Ct.

1126, 1132 (1993) (plurality opinion) (noting the

historic availability of forfeiture “notwithstanding

the innocence of the owner”). The Court in Calero-

Toledo took particular note of two cases decided this

century that had rejected innocent owner claims

involving, as does this case, the forfeiture of vehicles

from owners who were unaware of and uninvolved in

the unlawful conduct that supported the forfeiture

action. See 416 U.S. at 685-686.

In J.W. Goldsmith, Jr.-Grant Co. v. United States,

254 U.S. 505, 509 (1921), the Court upheld against a

due process challenge the forfeiture of a taxicab used

to transport alcohol in violation of federal law, even

though the owner of the taxicab (a dealer in cars who

had retained title while financing the purchase) had

no knowledge, or even “any notice or reason to sus-

pect,” that the car would be used illegally. Likewise,

in Van Oster v. Kansas, 272 U.S. 465, 466-469 (1926),

the Court upheld the forfeiture of a car used to

transport intoxicating liquor, in violation of state

law, by a person to whom the owner had entrusted the

car. The Court rejected the owner’s claim that due

process entitled her to resist the forfeiture because

she lacked knowledge of, and did not authorize, the

illegal use. Id. at 467-468. See also United States v.

One Ford Coupe Automobile, 272 U.S. 321, 332 (1926).

The Court in Calero-Toledo identified several ra-

tionales for why j ludieial inquiry into the guilt or

innocence of the owner could be dispensed with.” 416

U.S. at 686. As Goldsmith-Grant Co. had explained,

by authorizing the forfeiture of property used in

crimes regardless of the owner’s knowledge of or

involvement in the crimes, “Congress interposes the

care and responsibility of their owners in aid of the

prohibitions of the law and its punitive provisions.”

254 U.S. at 510, quoted in Calero-Toledo, 416 U.S. at

685-686. And, as Van Oster had noted, forfeiture laws

that apply without regard to the owner’s knowledge of

or involvement in criminal activity “build[] a secon-

dary defense against a forbidden use and precludel]

evasions by dispensing with the necessity of judicial

inquiry as to collusion between the wrongdoer and

the alleged innocent owner.” 272 U.S. at 467-468,

quoted in part in Calero-Toledo, 416 U.S. at 686.

The Court in Calero-Toledo concluded that, even if

a statutory forfeiture scheme affords no defense to

“innocents,” it is nonetheless constitutional, in light

of At he historical background of forfeiture statutes

in this country and this Court’s prior decisions sus-

taining their constitutionality.” 416 U.S. at 680. The

Court then applied that view to the facts before it. In

that case, Puerto Rico forfeited a yacht on which the

Puerto Rico police found marijuana that had appar-

ently been brought on board by one of the yacht’s les-

sees. Id. at 665. The yacht company-lessor “was nei-

ther involved in nor aware of the act of the lessee

which resulted in the forfeiture.” Id. at 664; see also

id. at 668. The Court rejected the yacht company's

contention that the forfeiture violated the Just Com-

pensation Clause. See id. at 680-690. The Court de-

termined that, as applied to conveyances used in ccn-

nection with drug crimes, the Puerto Rico forfeiture

statutes “foster[ed] the purposes served by the under-

iying criminal statutes, both by preventing further il-

licit use of the conveyance and by imposing an eco-

10

nomic penalty, thereby rendering legal behavior un-

profitable.” Id. at 687. The Court further determined

that, as “applied to lessors, bailors, or secured credi-

tors who are innocent of any wrongdoing,” those

statutes may have [had] the desirable effect of indre

ing them to exercise greater care in transferring

possession of their property.” Jd. at 688.

While reaffirming its prior decisions, the Court in

Calero-Toledo stated that the “broad sweep” of forfei-

ture statutes could “give rise to serious constitu-

tional questions” with respect to two categories of

owners:

It * * * has been implied that it would be

difficult to reject the constitutional claim of an

owner whose property subjected to forfeiture had

been taken from him without his privity or con-

sent. Similarly, the same might be said of an

owner who proved not only that he was uninvolved

in and unaware of the wrongful activity, but also

that he had done all that reasonably could be

expected to prevent the proscribed use of his

propertyl.]

Calero-Toledo, 416 U.S. at 689 (citations omitted).

The Court found it unnecessary to decide whether the

Constitution precluded forfeiture in those two situa-

tions, because the yacht company “voluntarily en-

trusted the lessees with possession of the yacht, and

no allegation hald] been made or proof offered that the

[yacht] company did all that it reasonably could to

avoid having its property put to an unlawful use.” Id.

at 690; see also Austin v. United States, 113 S. Ct.

2801, 2809 & n.10 (1993) (reserving question whether

due process principles would bar punitive forfeiture of

property “when the owner had done all that reason-

11

ably could be expected to prevent the unlawful use of

his property“).

2. The all reasonable steps“ standard suggested

in Calero- Toledo has been widely accepted as a con-

stitutional limit on statutory forfeitures. The lower

federal courts have generally held that it provides the

constitutional limit on civil forfeiture of property

that has been used in violation of federal statutes.’

! Petitioner contends that the analysis of this Court’s prec-

edents in Austin provides “a historical basis for the due process

principle implicitly recognized in” Calero-Toledo. Pet. Br. 19.

Austin’s reservation of the due process issue, however,

indicates that the Court viewed its precedents as inconclusive.

In fact, before Calero-Toledo, those precedents had reserved

only the narrow question whether property could be forfeited

if it was taken without the owner’s consent and then put to an

unlawful use. See Van Oster, 272 U.S. at 467 (“It is

unnecessary for us to inquire whether the police power of the

state extends to the confiscation of the property of innocent

persons appropriated and used by the law breaker without the

owner's consent.”); Goldsmith-Grant Co., 254 U.S. at 512

(reserving “opinion as to whether the [statute in question] can

be extended to property stolen from the owner or otherwise

taken from him without his privity or consent”). Petitioner

also errs in claiming support for an innocent owner defense in

Austin’s holding that the Eighth Amendment’s Excessive

Fines Clause applies to civil forfeiture under 21 U.S.C. 881(a).

Pet. Br. 18 n.12. Contrary to petitioner’s suggestion, the Court

did not adopt a specific test of proportionality for all civil

forfeitures that “presupposes” a culpable owner (ibid.). Indeed,

the Court explicitly declined to formulate a constitutional

standard for proportionality that depended on that or any

other factor. 113 S. Ct. at 2812 & n.15.

2 See United States v. $69,292 in U.S. Currency, No. 9%8-

56545 (9th Cir. Aug. 7, 1995), slip op. 3; United States v. One

1976 Cessna Model 210L Aircraft, 890 F.2d 77, 80-82 (8th Cir.

1989); United States v. 1966 Beechcraft Aircraft, T77 F.2d 947,

12

Courts have also relied on the standard to interpret

the scope of statutory innocent owner defenses.’ In a

similar vein, the federal government has incorporated

the “all reasonable steps” standard into regulations

governing the remission and mitigation of forfei-

tures.’ And some state courts have construed their

forfeiture statutes to protect claimants who meet the

“all reasonable steps” standard. See, e.g., Threlkeld v.

State, 586 So. 2d 756, 759 (Miss. 1991) (construing

state forfeiture statute to avoid violation of state con-

stitution’s due process guarantee); State v. 1979

Pontiac Trans Am, 487 A.2d 722, 726-727 (N.J. 1985)

(construing state statute to avoid violation of Four-

teenth Amendment Due Process Clause); see also

N.J. Stat. Ann. § 2C:64-5(b) (West Supp. 1995) (codify-

ing “all reasonable steps” standard).

In our view, the “all reasonable steps” standard

articulated in Calero-Toledo reflects the constitu-

tional limit applicable to some forfeiture statutes, in-

cluding the one at issue in this case. As this Court’s

many cases rejecting innocent owner claims demon-

strate, see pp. 7-8, supra, the Constitution does not

bar forfeitures when all that the owner establishes is

951-952 (4th Cir. 1985); United States v. One 1982 28 Inter-

national Vessel, 741 F.2d 1319, 1322-1323 (11th Cir. 1984);

United States v. One Tintoretto Painting, 691 F.2d 603, 607 (2d

Cir. 1982); United States v. One 1957 Rockwell Aero Com-

mander 680 Aircraft, 671 F.2d 414, 418 (10th Cir. 1982); United

States v. $6,700 in U.S. Currency, 615 F.2d 1, 3 (Ist Cir. 1980).

See United States v. 141st Street Corp., 911 F.2d 870, 877

(2d Cir. 1990), cert. denied, 498 U.S. 1109 (1991); United States

v. One 1980 Bertram 58 Motor Yacht, 876 F.2d 884, 888 (11th

Cir. 1989).

See 28 C. F. R. 9.5(b)(5); see also Calero-Toledo, 416 U.S. at

689 n.27.

13

lack of knowledge, or reason to know, of the illegal

conduct that caused the forfeiture, and lack of partici-

pation in that conduct. As Calero-Toledo reaffirmed,

when an owner can do no more than demonstrate

those conditions, forfeiture statutes serve “legiti-

mate governmental interests,” 416 U.S. at 688, be-

cause they give property owners an incentive to take

affirmative steps to detect and prevent the illegal use

of their property, and they eliminate the need for

judicial inquiry into the possibility that the alleged

innocent owner is in collusion with the person

making illegal use of the property. Those traditional

justifications for rejecting “innocent owner” claims

reflect the heavy burden that is permissibly placed on

the property owner to prevent, if reasonably possible,

the involvement of his property in illegal activity.

In contrast, when an owner pleads and proves that

he took all reasonable steps to prevent the involve-

ment of his property in the illegal conduct underlying

the forfeiture, the balance of interests is different.

An owner who hals] done all that reasonably could be

expected to prevent the proscribed use of his prop-

erty,” Calero-Toledo, 416 U.S. at 689, has, by defini-

tion, minimized the foreseeable risk of illegal use and,

in turn, the risk of forfeiture. Once the owner has

minimized the risk of forfeiture by taking all rea-

sonable precautions, he is generally unlikely to take

additional, “ultrareasonable” steps to eliminate the

residual risk. Moreover, an owner who can prove that

he took all reasonable, affirmative measures to pre-

vent unlawful use is far less likely to be in collusion

with the person who uses the property illegally than

is an owner who merely asserts lack of knowledge or

participation in the illegal use.

14

In light of those considerations, we believe that the

Calero-Toledo Court correctly suggested that the

“legitimate governmental interests” traditionally

served by forfeiture statutes would not be furthered

as applied to owners who took all reasonable steps to

prevent the illegal use, and that the deprivation of

such owners’ property interests might be regarded as

“unduly oppressive.” Calero-Toledo, 416 U.S. at 688,

690. Due process principles have long afforded pro-

tection from punitive government action against es-

sentially blameless individuals who did all that could

reasonably be expected under the circumstances. As

long ago as Peisch v. Ware, 8 U.S. (4 Cranch) 347, 363

(1808), Chief Justice Marshall wrote that “a forfeiture

can only be applied to those cases in which the means

that are prescribed for the prevention of a forfeiture

may be employed.” In Southwestern Telegraph &

Telephone Co. v. Danaher, 238 U.S. 482, 490-491

(1915), the Court invalidated a penalty against a tele-

phone company under the Due Process Clause of the

Fourteenth Amendment because it was “plainly

arbitrary and oppressive” in light of the telephone

company’s innocent conduct, which involved “no in-

tentional wrongdoing; no departure from any pre-

scribed or known standard of action, and no reckless

conduct.” See TXO Production Corp. v. Alliance

Resources Corp., 113 S. Ct. 2711, 2718 n.17 (1993)

(plurality opinion) (noting substantive due process

limits on penalties and observing that Danaher had

“emphasized the fact that the Company was punished

for conduct that had been undertaken in complete

good faith”); id. at 2731 (O’Connor, J., dissenting)

(quoting Danaher). And in a related context, this

Court has upheld strict, vicarious criminal liability

15

for a corporate officer based on his company’s con-

duct, provided that the defendant was not “ ‘powerless’

to prevent or correct the violation.” United States v.

Park, 421 U.S. 658, 673 (1975).°

There are, of course, many different types of forfei-

ture statutes. Whether a constitutional “innocent

owner” defense may be asserted will vary depending

on the particular governmental interests the statute

serves and the nature of the property that is affected.

See pp. 16-21, infra. But in some cases, a property

owner who makes the showing that he took “all rea-

sonable steps” to prevent the illegal use will have es-

tablished a constitutional defense to the forfeiture of

his property.“

5 The Court in Calero-Toledo supported the “all reasonable

steps” standard primarily by referring to the early common

law history that “sought to mitigate the harshness of felony and

deodand forfeitures” and the “ameliorative policy” both in

England and in this country “of providing administrative re-

missions and mitigations of statutory forfeitures in most cases

where the violations are incurred ‘without willful negligence’

or an intent to commit the offense.” 416 U.S. at 689 n.27. That

history does not appear to establish the specific contours of any

right possessed by innocent owners; at most, it indicates a gen-

eral concern to provide some mechanism to alleviate harsh for-

feitures imposed on “innocent owners” in some instances. Not-

withstanding its lack of a clearcut historical pedigree, we be-

lieve that the “all reasonable steps” standard rests on values

traditionally recognized in due process analysis, accords with

inis Court’s prior decisions, and respects the interests of pri-

vate property owners, while accommodating governmental in-

terests underlying forfeiture statutes.

6 Petitioner invokes both the doctrine of substantive due

process and the Just Compensation Clause of the Fifth

Amendment, as applied to States under the Fourteenth

Amendment (see, e.g., Dolan v. City of Tigard, 114 S. Ct. 2309,

16

B. The “All Reasonable Steps” Standard Does

Not Apply To All Forfeitures Or All Claimants

This case involves only one type of forfeiture and

one type of claimant. While we believe that the “all

reasonable steps” standard is applicable in this case,

the availability and nature of any constitutionally

required innocent owner defense in other settings

raises different issues and requires a different

analysis. The Court need not address those issues in

this case.

1. This case involves the punitive forfeiture of

non-contraband based on its use for a vice offense. It

is important, first, to clarify the nature of the prop-

erty at issue and the nature and purpose of the

statute under which it was forfeited.

It appears that, as applied in this case, the Michigan

abatement statute serves, to a significant extent,

2316 (1994)). See Pet. i. Analysis under the Just Compensation

Clause, however, does not appear to add anything to the consti-

tutional analysis in this context. In discussing this Court’s

precedents addressing innocent owner claims, the Court in

Calero-Toledo did not distinguish the application of just

compensation principles from substantive due process

principles. For example, in Goldsmith-Grant Co., the Court

had considered whether the forfeiture of the owner’s property

violated “the due process of law required by the Constitution.”

254 U.S. at 510. In Calero-Toledo, however, the Court stated

that Goldsmith-Grant Co. had “held that the federal tax-fraud

forfeiture statute did not deprive an innocent owner of his

property in violation of the Fifth Amendment.” 416 U.S. at

685. And the Calero-Toledo Court characterized the due pro-

cess claim at issue in Van Oster, 272 U.S. at 466, as simply a

“Fourteenth Amendment attack.” 416 U.S. at 686. Elsewhere,

the Court in Calero-Toledo referred simply to the “constitu-

tionality” of the forfeiture of the property of innocent owners.

See id. at 669, 680, 688, 689.

17

punitive purposes. The Michigan statute does not

merely remedy the illegal use of vehicles by enjoining

such use, while leaving title in the vehicles’ owners;

instead, it requires the vehicles to be sold.’ While the

requirement of sale to compensate the State for the

costs associated with illegal conduct might in other

contexts support a remedial characterization of the

law, here, the State has emphasized the punitive aim

of the abatement of the Bennises’ car. The State has

explained: “Confiscation of an automobile in the

context that defendant’s car was seized * * * is

swift and certain ‘punishment’ of the voluntary vice

consumer. Recidivism is practically nil, and the

deterrence value is great.” Resp. Mich. Sup. Ct. Br.

22 (quoted at Pet. Br. 20-21).

Under those circumstances, the forfeiture of

vehicles under the statute, though characterized as

the “abatement” of a “nuisance,” does not appear to

fall within the “long line of this Court’s cases sus-

taining against Due Process and Takings Clause

challenges the State’s use of its ‘police powers’ to

7 Whereas vehicles and other chattels are to be sold when

they are declared a nuisance, “buildings and places” are to be

“effectually clos[ed]” for up to one year when they are de-

clared a nuisance. Mich. Comp. Laws Ann. § 600.3825(1) (West

1987). The Michigan courts have rejected the argument that

the closing of buildings and places under the abatement statute

is punitive rather than remedial. State ex rel. Macomb County

Prosecuting Attorney v. Mesk, 333 N.W.2d 184, 191 n.4 (Mich.

Ct. App. 1983); State ex rel. Cahalan v. Bernstein, 226 N.W.2d

56, 59 (Mich. Ct. App. 1974).

This case thus does not require the Court to consider

how to determine, in the absence of such explicit state-

ments, whether a particular forfeiture provision is punitive or

remedial.

18

enjoin a property owner from activities akin to pub-

lie nuisances.” Lucas v. South Carolina Coastal

Council, 112 S. Ct. 2886, 2897 (1992); see, e.g., Gros-

field v. United States, 276 U.S. 494 (1928) (affirming

decree entered under the National Prohibition Act

“nadlocking” premises used by tenant, without les-

sor’s knowledge, for a still); see also United States v.

Boynton, 297 F. 261, 266-268 (E.D. Mich. 1924); ef.

Sweet v. Rechel, 159 U.S. 380, 399 (1895); Mugler v.

Kansas, 123 U.S. 623, 669 (1887). The abatement of

such nuisances does not implicate an innocent owner

defense, in our view.

Nor would an innocent owner defense necessarily

be available to defeat other types of forfeitures, such

as the forfeiture of contraband, “the possession of

which, without more, constitutes a crime,” One 1958

Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699

(1965), or the forfeiture of property specially adapted

for illegal use by, for example, being equipped with

secret compartments, ef., e.g., United States v. One

1983 Homemade Vessel Named “Barracuda,” 858

F.2d 643 (11th Cir. 1988) (upholding forfeiture of boat

with secret compartments under 19 U.S.C. 1703(a),

which authorizes forfeiture of vessels “fitted out” for

purpose of violating customs laws). See United

States v. Jeffers, 342 U.S. 48, 54 (1951); see also

United States v. One Assortment of 89 Firearms, 465

U.S. 354, 364 (1984); One Lot Emerald Cut Stones v.

United States, 409 U.S. 232, 237 (1972) (per curiam).

Finally, the State has not suggested that the

forfeiture of vehicles under the circumstances of this

case is justified by an overriding governmental need.

There may be offenses that are so serious, and so

closely connected with a certain type of property, that

19

forfeiture would be justified even if the owner met the

“all reasonable steps” standard. As this Court said in

Van Oster, “certain uses of property may be regarded

as so undesirable that the owner surrenders his

control [over the property] at his peril.” 272 U.S. at

467. The Court cited, as an example, laws that hold

car owners civilly liable “for the negligent operation

by those entrusted with their use.” Jbid. Under such

laws, it does not matter whether the owner took all

reasonable precautions to prevent the negligence.

See 7A Am. Jur. 2d Automobiles & Highway Traffic

§ 668, at 900-901 (1980). Nonetheless, the Court in

Van Oster took it for granted that such laws are

constitutional. See 272 U.S. at 467; see also Young v.

Masci, 289 U.S. 253, 257 (1933). The imposition of

strict vicarious civil liability under such laws is

justified by, inter alia, the amount of injury and death

due to careless driving. Similar considerations could

lead a legislature reasonably to conclude that a

specific illegal use of a specific type of property—for

example, the use of rental vehicles to transport ex-

plosive devices—had produced such serious law en-

forcement problems that all vehicles so used should be

forfeited regardless of whether a rental agency could,

in a particular case, show that it had taken all reason-

able precautions to prevent the illegal use. Forfei-

ture in that situation might be warranted to encour-

age extraordinary precautions against a particularly

harmful illegal use. Cf. New York Central R.R. v.

White, 243 U.S. 188, 201-204 (1917).

2. This case does not involve a claimant to whom

knowledge of, or involvement in, the illegal activity

is sought to be imputed under traditional principles

of vicarious liability. This case, like Calero-Toledo,

20

involves a claimant who was “uninvolved in and un-

aware of the wrongful activity” that led to the forfei-

ture. 416 U.S. at 689. Knowledge of and involvement

in wrongful activity may be imputed to a claimant

under traditional principles of vicarious liability, but

those principles are not at issue here.

The Court has indicated that traditional principles

of vicarious liability will support civil punitive dam-

ages. In Pacific Mutual Life Ins. Co. v. Haslip, 499

U.S. 1 (1991), the Court rejected a substantive due

process challenge to a state common law rule author-

izing punitive damages against corporations for the

fraud of employees acting within the scope of employ-

ment. Jd. at 14-15. In support of that ruling, the

Court cited American Society of Mechanical Engi-

neers, Inc. v. Hydrolevel Corp., 456 U.S. 556 (1982),

which permitted the imposition on an organization of

treble damages for antitrust violations based on the

apparent authority of an agent to act for the

organization. See id. at 574-576.

Forfeitures may similarly rest on theories of

“vicarious liability.“ Austin, 113 S. Ct. at 2810.

Agency principles have been applied by the lower

courts in civil forfeiture cases. For example, in

United States v. One Parcel of Land Located at 7326

Highway 45 North, 965 F.2d 311 (7th Cir. 1992), the

court acknowledged that a corporation’s innocent

owner defense should be rejected if the knowledge of

one of its principal officers could be imputed to the

corporation under traditional agency principles. Id.

at 316-319. (The court held that the officer’s

knowledge was not imputable in that case, however,

because he did not gain it while acting for the benefit

of the corporation. Id. at 317.) In United States v.

21

141st Street Corp., 911 F.2d 870 (2d Cir. 1990), cert.

denied, 498 U.S. 1109 (1991), the court sustained the

forfeiture of an apartment house overrun by drug

dealers, holding that the corporate owner was

chargeable with the knowledge of the superintendent

of the building. Jd. at 876. See also United States v.

One Parcel of Real Estate, 852 F. Supp. 1013, 1039

(S.D. Fla. 1994); United States v. One Parcel of Real

Estate Consisting of Approximately 4,657 Acres, 730

F. Supp. 423, 426-428 (S.D. Fla. 1989).

Respondent has not argued that traditional princi-

ples of vicarious liability provide a basis for holding

petitioner knowledgeable of, or responsible for, Mr.

Bennis’s conduct. There is, to our knowledge, no

common law tradition that would support the imposi-

tion of punitive liability on a spouse based solely on

the actions of a partner. Nor has respondent argued

that liability may be premised on the “family purpose

doctrine” or any other joint enterprise theory.”

Accordingly, this case does not require the Court to

determine when traditional principles of vicarious

liability and imputed knowledge may defeat an inno-

cent owner claim.”

See W. Prosser, Handbook of the Law of Torts § 73, at 483-

485 (4th ed. 1971).

10 Cf. United States v. One 1986 Chevrolet Monte Carlo, 817

F. Supp. 729, 730-734 (N. D. III. 1993).

| We also note that this case does not involve a claimant who

acquired an interest in the property after the illegal conduct

that caused the forfeiture. The “all reasonable steps” standard

would have a different application in that setting. A person

who acquires property after the illegal act usually could not

have exercised any power to prevent the act from occurring.

Nevertheless, the person can be expected to exercise care to

avoid acquiring “tainted” property that has been used for an

22

C. Petitioner Has Not Satisfied The “All Reason-

able Steps” Standard

1. Petitioner bore the burden of pleading and

proving that she took all reasonable steps to prevent

the illegal use of her property.” This Court made

clear in Calero-Toledo that, to the extent that the

Constitution requires recognition of an innocent

owner defense, the owner must bear the burden of

pleading and proving it. Thus, the Cor:t found it

unnecessary to determine whether the Constitution

affords such a defense in Calero-Toledo only because

“no allegation hald] been made or proof offered that

the [yacht] company did all that it reasonably could to

avoid having its property put to an unlawful use.” 416

U.S. at 690. The Court gave no indication that the

Constitution required the government to carry any

burden of proof on that issue.

Petitioner recognizes that Calero-Toledo supports

imposing the burden of proving innocent owner status

on claimants in in rem forfeiture proceedings. Pet.

Br. 39. She also recognizes (id. at 45 n.25) that the

Puerto Rico statute at issue in Calero-Toledo was

modeled on a federal statute that is governed by the

customs procedures set out in 19 U.S.C. 1615, see 416

illegal purpose that subjects it to forfeiture. A person who fails

to take reasonable steps under the circumstances to determine

the provenance of what he is acquiring may fail to qualify as an

“innocent” owner for constitutional purposes.

2 Petitioner did not argue in the courts below or in her peti-

tion for a writ of certiorari that the State bore the burden of

proof on the innocent owner issue. Moreover, it is not clear

that the burden-of-proof issue is fairly included within the

questions presented in her petition. We address the issue in the

event the Court determines that it should be resolved.

23

U.S. at 686 n.25, 689 n.27, and that Section 1615 places

the burden of proof on claimants in forfeiture pro-

ceedings with respect to all issues except the show-

ing of probable cause to institute the proceeding.

Every federal court of appeals to consider the issue

has rejected constitutional challenges to Section

1615’s allocation of the burden of proving innocent

owner status to the claimant.”

Petitioner nonetheless contends that Calero-

Toledo’s determination that the burden of proof rests

on the claimant is inapposite here. She notes that,

whereas Calero-Toledo involved a proceeding in rem,

this is a proceeding in personam. Pet. Br. 45 n.25.

Petitioner fails, however, to explain why that mat-

ters. The order declaring the Bennises’ vehicle a nui-

sance and requiring its sale could have been entered

in a proceeding in rem. See C.J. Hendry Co. v.

Moore, 318 U.S. 133, 140 (1943). Petitioner does not

contend that the in personam character of the

proceeding gave it collateral consequences that would

not have flowed from an in rem proceeding.

Petitioner also asserts that abatement proceedings

are “quasi-criminal,” Pet. Br. 43, based on respon-

dent’s acknowledgement that they serve punitive and

deterrent purposes. Proceedings under the Puerto

Rico statute at issue in Calero-Toledo, however, were

See United States v. 228 Acres of Land & Dwelling, 916

F. 2d 808, 814 (2d Cir. 1990), cert. denied, 498 U.S. 1091 (1991);

United States v. Santoro, 866 F.2d 1538, 1544 (4th Cir. 1989);

United States v. $250,000 in U.S. Currency, 808 F.2d 895, 900 &

n.17 (Ist Cir. 1987) (citing cases); United States v. $2,500 in

U.S. Currency, 689 F.2d 10, 12-16 (2d Cir. 1982), cert. denied,

465 U.S. 1099 (1984); United States v. One 1970 Pontiac GTO,

529 F.2d 65, 66 (9th Cir. 1976) (per curiam).

24

also said to serve punitive and deterrent purposes.

See 416 U.S. at 686. Moreover, petitioner’s charac-

terization of the present proceeding is at odds with

this Court’s consistent refusal to hold that civil

forfeiture proceedings are “subject to the procedural

rules governing criminal prosecutions.” One Lot

Emerald Cut Stones, 409 U.S. at 237 (quoting Helver-

ing v. Mitchell, 303 U.S. 391, 400 (1938)); see Austin,

113 S. Ct. at 2804 n.4. Finally, even if abatement pro-

ceedings were criminal in nature, that characteristic

would not forbid the State from allocating the burden

of proof to petitioner on her innocent owner defense.

See Martin v. Ohio, 480 U.S. 228 (1987) (defendant in

criminal case may b required to establish affirmative

defenses such as self-defense).“

Petitioner’s reliance (Pet. Br. 44) on this Court’s

“recent takings jurisprudence” is misplaced. Peti-

tioner argues that, under Lucas v. South Carolina

Coastal Council, 112 S. Ct. 2886 (1992), and Dolan v.

City of Tigard, 114 S. Ct. 2309 (1994), the forfeiture of

property that has been used illegally is presumptively

a “taking” for which just compensation is due, and

that the State must rebut that presumption by

proving her culpability. The presumption, however, is

Although it is unnecessary to apply the three-factor test

of Mathews v. Eldridge, 424 U.S. 319 (1976), as advocated by

petitioner, Pet. Br. 39-44, that test does not assist her. It would

require no extended analysis to conclude that a putative inno-

cent owner may fairly be required to establish that he took the

steps that qualify him for that status. It is entirely

sensible to burden the party more likely to have information

relevant to the facts * * * to demonstrate thſose] facts

* * * Such was the rule at common law.” Conerete Pipe &

Products of California, Inc. v. Construction Laborers Pension

Trust, 113 S. Ct. 2264, 2281 (1993).

25

to the contrary: “{I)}t is settled that if the * * *

government's actions comport, procedurally and sub-

stantively, with the terms of a lawfully enacted for-

feifure statute, it may seize private property without

compensating the owner.” United States v. One

Parcel of Property with Bldgs., Appurtenances, &

Improvements, 960 F.2d 200, 210 (ist Cir. 1992);

see also Redford v. United States Department of

Treasury, 691 F. 2d 471, 473 (10th Cir. 1982). Nothing

in Lucas or Dolan, neither of which involved a for-

feiture of property that had been used illegally, casts

doubt on that principle.

2. Petitioner did not allege or prove that she took

all reasonable steps to prevent illegal use of the car.

In her answer to the abatement complaint and at trial,

petitioner claimed only that she lacked actual

knowledge that her husband would use the car

illegally. See p. 3, supra. She did not allege or prove

that she lacked reason to know that her husband

would use their car illegally.” Nor did she allege or

Even now, petitioner does not claim that she lacked reason

to know of the illegal use. Instead, she asserts that there is no

“evidence in the record from which it could be inferred that

Tina Bennis ‘should [have] knowin]! that John Bennis was

‘likely to use the [ear] in the manner the trial court found him

to have used it.“ Pet. Br. 27. To the contrary, such an

inference arguably could be drawn from the security guard’s

testimony that he had seen Mr. Bennis soliciting prostitutes in

the neighborhood of the arrest on two prior occasions. J.A. 52-

— 3 snagatin & pattern af tihesten, of which it

more reasonable to expect a spouse to know than a

single instance of behavior. In any event, the State was not

required to establish that Mr. Bennis’s behavior was such that

petitioner had reason to know; rather, it was petitioner’s

burden to establish innocent owner staus. See pp. 22-25, supra.

26

prove that she took all reasonable steps to prevent

such use. She is therefore in precisely the same

position as the yacht company in Calero-Toledo.

Under Calero-Toledo, the forfeiture of petitioner’s

interest in the car must be sustained.

D. The Court Should Reject The Innocent Owner

Standard That Petitioner Proposes

Although petitioner appears at times to support the

Calero-Toledo standard, see Pet. Br. 14-18, she in

fact proposes a significantly more generous test for

innocent ownership. Rather than adopting Calero-

Toledo’s suggestion that the owner take “all reason-

able steps” to prevent the unlawful use of his prop-

erty, petitioner suggests that it is enough if the

owner exercises reasonable care at one step: when

entrusting the property to another. Id. at 24-27. In

the alternative, she argues that under any standard of

care, she could not reasonably be expected to have

taken any steps to prevent the illegal use of her car,

because she neither knew nor should have known

about her husband’s illegal conduct. Jd. at 27-29.

Neither argument is persuasive.

1. The Court in Calero-Toledo reaffirmed that the

government may subject property to forfeiture to

ensure that the owner takes steps to prevent its

illegal use. 416 U.S. at 688. The Court did not sug-

gest, however, that such steps are limited to exercis-

ing care in entrusting the property to another. In

particular, there is no suggestion that the yacht

owner acted negligently in entrusting the yacht to

the lessees. In fact, the forfeiture rested on the dis-

covery of marijuana on board the yacht more than a

year after the lessee took possession, id. at 665-666.

27

Nor does logic support the “negligent entrust-

ment” limitation urged by petitioner. It would make

no sense, for example, to conclude that the yacht

company in Calero-Toledo would have been con-

stitutionally entitled to the return of its yacht if it

had taken all reasonable steps to prevent unlawful

conduct before transferring possession—even if, after

transferring possession of the yacht, it gained knowl-

edge that the lessor was keeping illegal drugs on

board but did nothing in light of that knowledge. It is

common for property owners to take steps after they

transfer their property to make sure that the trans-

feree is using the property in accordance with the

conditions of the transfer. It is therefore reasonable

for the forfeiture laws to encourage the owner to take

reasonable steps after property has been transferred

to prevent unlawful use.

Petitioner argues that she lacked the ability to

control her husband’s use of the car because, as a

joint owner, he had the “right” to use it without her

consent. Pet. Br. 27. The yacht company in Calero-

Toledo could have made a similar argument. Al-

though the company “included in the lease a prohibi-

tion against use of the yacht for an unlawful project,”

Calero-Toledo, 416 U.S. at 693 (Douglas, J., dissent-

ing in part), after the lessee came into possession it

presumably did not need the company’s consent to use

the yacht. Calero-Toledo illustrates that there are

many situations, besides joint ownership, in which

the person who causes the forfeiture does not need

the owner’s additional permission to use the property

once it has been “entrusted” to that person.

The same reasoning defeats petitioner’s assertion

that “she did not in any meaningful sense have the

28

legal power to prevent his [illegal] use [of the car].”

Pet. Br. 27. The yacht company in Calero-Toledo

likewise presumably had limited means, as a practical

matter, of preventing the illegal use of its yacht.

Petitioner observes that, unlike the yacht company,

she did not have “a commercial relationship” with the

person who used the property illegally. Id. at 28. The

absence of a commercial relationship, however, does

not necessarily mean a lack of control. Indeed, an

owner who has a personal relationship with the

person who used the property illegally may be in a

better position to prevent that use than an owner who

has only a commercial relationship with the other

person, and who relinquishes possession of the

property. See, e.g., United States v. One 1973 Buick

Riviera Automobile, 560 F.2d 897, 901 (8th Cir. 1977)

(per curiam); see also United States v. One 1971

Chevrolet Corvette, 393 F. Supp. 344, 348 (E.D. Pa.

1975).

In sum, there are no doubt differences between peti-

tioner’s relationship with Mr. Bennis in regard to

their car and the yacht company’s relationship with

the lessee in regard to the yacht. Such differences

may well be relevant in determining what steps the

claimant could reasonably have taken to prevent the

illegal use, since they may affect the claimant’s

ability to control the use of the property. But those

differences do not justify a departure in this case

from the “all reasonable steps” standard suggested in

Calero-Toledo.

2. The Court should reject petitioner’s argument

that she could not reasonably be expected to have

taken any steps to prevent Mr. Bennis’s illegal use of

the car. That argument is based on her assertion

29

that, “if one has no knowledge or reason to know of

a wrongful use, then one cannot be expected to take

affirmative steps to prevent that use.” Pet. Br. 28.

Even if an owner lacks reason to know that a trans-

feree will use property illegally (a circumstance that

petitioner has not demonstrated), the owner can rea-

sonably be expected in many cases to take precautions

against illegal use. For example, it is reasonable to

expect a landlord periodically to visit rental property

in a drug-infested neighborhood whether or not he

suspects any tenants of drug use. Cf. 14/st Street

Corp., supra. It may be reasonable to expect the own-

ers of boats and airplanes to check the backgrounds

and monitor the activities of lessors, especially in

drug-smuggling areas. See 1966 Beechcraft Aircraft,

777 F.2d at 951; United States v. One Blue Lobster

Vessel Named Tony, Jr., 639 F. Supp. 865, 872 (S. D.

Fla. 1986); United States v. One 1980 Stapleton

Pleasure Vessel Named Threesome, 575 F. Supp. 473,

478 (S.D. Fla. 1983). To cite a third example, financial

organizations may reasonably be expected to use

available computer technology to prevent money-

laundering, even in the absence of individualized

suspicion. See 52 Fed. Reg. 11,437-11,438 (1987).

It may be true in many cases that a spouse who

lacks reason to know that the other spouse will use

jointly owned property illegally cannot reasonably be

expected to take any precautions. But that is not

necessarily true in all cases. We submit that

innocent owner claims are better resolved by the

flexible standard suggested in Calero-Toledo than by

categorical rules. A categorical rule for spouses

would fail to take into account the many ways in

which spouses may hold property. And a categorical

30

rule for joint owners would fail to take into account

the variety of contexts, in addition to marriage, in

which property may be jointly owned. [Wihat one

‘reasonably could be expected [to do] to prevent

criminal use of property is a standard that must be

tailored to individual circumstances.” United States

v. One 1976 Lincoln Mark IV, 462 F. Supp. 1383, 1391

(W.D. Pa. 1979) (quoting Calero-Toledo, 416 U.S. at

689).

CONCLUSION

The judgment of the Michigan Supreme Court

should be affirmed.

Respectfully submitted.

DREW S. Days, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

RICHARD H. SEAMON

Assistant to the Solicitor General

J. DOUGLAS WILSON

Attorney

SEPTEMBER 1995