Amicus Curiae Brief — Ethicon, Inc. v. Eisenmenger

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...............

INTEREST OF AMICI CURIAE ........

STATEMENT OF THE CASE

ARGUMENT ....

I. THE STATE HAS A LEGITIMATE INTER-

EST IN PROTECTING ITS COMMUNITIES

FROM THE IMPACT OF PROPERTY USED

TO FACILITATE CRIMINAL CONDUCT

Subjecting a Co-Owner’s Property Interest in an

Abatable Nuisance to Possible Forfeiture Is Rea-

sonably Related to the Legitimate Interest

THE UNINVOLVED CO-OWNER IS PRO-

TECTED BY SUBSTANTIVE CHECKS ON

THE STATE’S USE OF CIVIL FORFEITURE

A. There Are Existing Federal Constitutional

Protections for Co-Owners of Property Sub-

ject to Forfeiture .

. Equitable Powers of the Courts Are a Signifi-

cant Check on the Potentially Harsh Effects

of Civil Forfeiture

. The Protection Afforded by the Political Proc-

ess in This Case’s Legal Context Should Not

Be Readily Dismissed

PETITIONER’S CONSTITUTIONAL CHAL-

LENGES TO THE STATUTE ARE WITHOUT

MERIT

volved Co-Owners Does Not Violate the Tak

ings Clause of the Fifth Amendment

ii

TABLE OF CCONTENTS—Continued

B. The Power of a State to Subject a Co-Owner’s

Interest to Forfeiture Should Not Be Con-

trolled by State Property Law Doctrines

yo Ut ee

IV. PLACING THE BURDEN OF PROVING IN-

NOCENCE ON THE CO-OWNER DOES NOT

VIOLATE PROCEDURAL DUE PROCESS

UNDER THE FOURTEENTH AMENDMENT..

CONCLUSION

18

21

iii

TABLE OF AUTHORITIES

CASES Page

Austin v. United States, 509 U.S. ——, 118 S.Ct.

RE Ey 11, 19, 21

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

TE a ae passim

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

| RTE SC eS ee ee Oe 22, 23

Goldsmith-Grant Co. v. United States, 254 U.S. 505

EEN NESS 2S Te ee 13

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

2886 (1992) ....... 1S oe Se SPATE es 17

Michigan ex rel. Prosecutor v. Bennis, 447 Mich.

EE: ee 18, 14

Morissette v. United States, 342 U.S. 246 (1952) .... 19

United States v. Good Real Property, 510 U.S. ——,

A 11

United States v. One Ford Coach, 307 U.S. 219

A. i ee 18

United States v. The Cargo of the Brig Malek

Adhel, 43 U.S. (2 How.) 210 (1844) 00... 9,15

United States v. United States Coin & Currency,

ES ES 13

Van Oster v. Kansas, 272 U.S. 465 (1926) ............ 10, 15

STATUTES

EE A iE 21

Michigan Compiled Laws Annotated §§ 600.3801-

EE EE Se 5

MISCELLANEOUS

Black’s Law Dictionary 1380 (6th ed. 1990) _... wee 17

Cll EE EE a a a

Oliver Wendell Holmes, Jr.. The Common Law 25

ee Pe eae —s (1881) 15

i ila ae “ 1622

iv

TABLE OF AUTHORITIES—Continued

Restatement (Second) of Torts § 308 (1965)...

Fran Spielman, Council Cracks Down on 2 Street

Menaces, Chicago Sun-Times, July 30, 1992,

ee ee ee See

David J. Stone, The Opportunity of Austin v.

United States: Toward A Functional Approach

to Civil Forfeiture and the Eighth Amendment,

73 Boston U. L. Rev. 427, 432 (1998)

The Winnable War: A Community Guide to Eradi-

cating Street Drug Markets...

—

In THE

Supreme Cot of the United States

OcTOBER TERM, 1995

No. 94-8729

Tina B. BENNIS,

Vv.

STATE OF MICHIGAN ex rel.

WAYNE COUNTY PROSECUTOR,

Respondent.

On Writ of Certiorari to the

Michigan Supreme Court

Petitioner,

BRIEF OF THE AMERICAN ALLIANCE FOR RIGHTS

AND RESPONSIBILITIES, THE ALLIANCE FOR A

SAFER, GREATER DETROIT, THE ELEVENTH

PRECINCT POLICE-COMMUNITY RELATIONS

COUNCIL, AND THE COMMUNITY ANTI-DRUG

COALITIONS OF AMERICA AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

INTEREST OF AMICI CURIAE

The American Alliance for Rights & Responsibilities

(“AARR”) is a national nonprofit organization dedicated

to improving civic and community life and the public

spaces that support it. The AARR has had extensive

! The AARR’s Board of Directors includes the President of the

ABC Television Network (of ABC/Capital Cities, Inc.), the General

Counsel of Connecticut Mutual Life Insurance Company, a past

President of Stanford University, a former Assistant Attorney

General, and a past President of the American Bar Association.

2

experience assisting community groups in closing down

local drug hubs and eradicating open-air drug and prosti-

tution markets. The AARR, for instance, has provided

legal and technical assistance to public housing tenants

and managers in combating drug markets and other street-

level problems. It also has conducted training sessions

for anti-crime groups.

The AARR has actively promoted and defended a vari-

ety of measures designed to improve the quality of

life. For instance, the AARR helped draft the anti-

aggressive-solicitation measures that are currently i place

in Washington, Baltimore, Berkeley, Cincinnati, Santa

opinion-editorials appearing in USA Today, The Wash-

ington Post, The ABA Journal, The Sacramento Bee, and

The Dallas Morning News. The AARR also has defended

anti-drug loitering ordinances, drug-related evictions and

security searches in public housing, regulations on urban

camping, and service learning requirements and tailored

drug-testing programs in public schools. Throughout these

efforts, the AARR has emphasized the importance to com-

munities of safe, welcoming, and civil public spaces, while

cnallenging extreme assertions of rights that block com-

munity progress.

The AARR has advocated the increased utilization of

civil remedies, including seizures, in its speeches, work-

shops, and technical assistance. The AARR highlighted

the effectiveness of seizures, particularly of automobiles.

in The Winnable War: A Community Guide to Eradicat-

ing Street Drug Markets, which has been used by over

14,000 grass-roots groups nationwide and praised by

editorial writers, government officials. and drug experts

In The Winnable War. the AARR discussed how seizures

The Alliance strives to reduce crime and the fear of

crime in Greater Detroit and to improve the image of

Detroit and its environs as a safe place for residents,

visitors and businesses. Toward this end, The Alliance

fosters communication and cooperation between neighbor-

hoods, the business community, and the justice system.

One specific goal of The Alliance is to reduce drug traf-

ficking and violent crime through the systematic identifica-

- tion and apprehension of those involved in such activities.

Similarly, CADCA's mission is to be a membership

* Forfeitures and seizures were also highlighted as useful in

A Ciel Wer, an AARR-sponsored guide to civil remedies against

flagrant drug markets, which was drafted by Cadwalader, Wicker-

sham & Taft.

4

tive because they are developed within the community—

community solutions for community problems.

The Council is a grass roots community association of

volunteers living in the same neighborhood where Mr.

Bennis engaged in illicit sexual activity. These residents

have suffered direct harm caused by the open-air prosti-

tution market that Wayne County is trying to shut down.

The amici fully recognize that the threat of vehicle

forfeitures remains an important deterrent to drug and

prostitution activity. Since 1988, when the Wayne County

Prosecutor began relying on the statute at issue to seek for-

feiture of vehicles involved in drug and prostitution activ-

ity, the Detroit neighborhoods—which were suffering in

desperation from the destructive effects of drug and pros-

titution markets—have finally begun to see some relief.

In May 1995 alone, Detroit police seized 221 cars used

to facilitate prostitution. Over 65% of these cars were

licensed to nonresidents of the impacted neighborhoods.

The variety of out-of-state license plates, coming from

across the Midwest and Canada, demonstrates that at-

tempts to curb illicit drug and prostitution markets must

reach beyond the providers and address the demand side

of the problem.

The amici view the Petitioner’s constitutional challenge

to the Wayne County program as an attempt to use the

courts to prevent a measured and effective public safety

initiative. The Wayne County program is a balanced and

innovative way to deter community-destroying prostitution

markets. The program places burdens on those who

impose on other communities, while it avoids expensive

and unnecessary incarceration. The amici believe it is

fair to address drug and prostitution markets by focusing

on the demand side of the equation, and, based on re-

search, the amici have concluded that programs such as

Wayne County’s are useful in re-establishing communities

as fit places to live, work, recreate, and raise families.

5

STATEMENT OF THE CASE

abate a public nuisance, such as property intimately in-

the proscribed use of the property by direct participation

or explicit permission.

One day in 1988, the Petitioner’s husband, John Bennis,

6

interest could be extinguished by forfeiture. He addressed

the acts giving rise to the public nuisance. He considered

the fact that the family readily had available other trans-

portation, i.e. a second car. The judge also considered

the value of the car (an 11-year-old Pontiac) and the

fact that little if any money would be available for dis-

tribution after deducting the costs of seizure and sale of

the vehicle.

The Michigan Court of Appeals reversed the lower

court’s decision on interpretation of the statute. The

Michigan Supreme Court then reversed the judgment of

the appellate court. The state supreme court also rejected

Petitioner’s arguments that the statute, both facially and

as applied to her, violated provisions of the federal Con-

stitution. Specifically, forfeiture of her property interest

in the car did not violate the Takings Clause of the Fifth

Amendment or the Due Process Clause of the Fourteenth

Amendment.

SUMMARY OF THE ARGUMENT

The Constitution undoubtedly permits states to enact

laws providing for the forfeiture of property intimately

involved in an owner’s criminal activity. Thus, for example,

an owner who uses his boat or automobile for drug

trafficking or prostitution may properly have his ownership

interest in that property extinguished. The instant litiga-

tion concerns the interest of a co-owner in property used

for criminal activity.

The Respondent has a legitimate interest in deterring

crime and using forfeiture to address property intimately

involved in certain illegal activity. To the extent inci-

dental effects and burdens are placed on uninvolved co-

owners of the targeted property, the state has a further

legitimate interest in structuring those consequences to

induce cooperation in stopping the deterioration of its

neighborhoods. And subjecting the property interests of

these co-owners to possible forfeiture is reasonably related

to the state’s legitimate interests.

7

Admittedly, the Michigan statute affects and burdens

the uninvolved co-owner of certain property, the illicit use

of which constitutes a nuisance under state law. The pri-

mary goal of the statute is to deter illegal activity. One

incidental effect is that Mrs. Bennis’ property interest in

the car, like her husband’s interest, was subject to possible

forfeiture. The incidental burden on Mrs. Bennis, and

other uninvolved co-owners, is that she now must take a

more active approach to how her property is used, to

protect the community and to preclude her future exposure

to forfeiture.

These effects and burdens on the uninvolved co-owner

do not violate the Takings and De Process Clauses of

the Constitution. There are existing protections for the

truly “innocent” co-owner whose vigilance could not have

stopped the illegal usage. One such protection is the equi-

table power of the courts to consider the factors that shape

each individual case of forfeiture. Other protections arise

from the federal Constitution and have been developed

through the Court’s forfeiture jurisprudence.

The Court should not prohibit states from developing

laws, consistent with the Court’s jurisprudence, to address

the serious problems communities are facing today. One

tool communities are using to address neighborhood de-

terioration is civil forfeiture. The pedigree of civil forfei-

ture is well documented in our legal history. Yet, its use

admittedly raises difficult questions concerning individual

responsibility, equity, and property righ’s. These issues

are best resolved through the legislature and judicial pro-

cesses of the states, rather than the elaboration of new fed-

eral constitutional doctrines.

In this case, Petitioner is arguing for a curious amalgam

of state and federal law that would make it very difficult

to use civil forfeiture for property jointly owned by a

husband and wife. Petitioner argues that the doctrine of

negligent entrustment should define her exposure to civil

forfeiture. She contends that she could not have legally

8

barred her husband from driving the car and thus that her

property interest in the car is effectively immune from

forfeiture. The Court should reject this effort to apply

state legal doctrines out of their proper context, in the

guise of constitutional adjudication.

ARGUMENT

I. THE STATE HAS A LEGITIMATE INTEREST IN

PROTECTING ITS COMMUNITIES FROM THE

IMPACT OF PROPERTY USED TO FACILITATE

CRIMINAL CONDUCT.

The state of Michigan has a legitimate interest in focus-

ing on property intimately involved in certain crimes.

Neighborhood integrity is severely threatened if communi-

ties cannot address the supply and demand sides of prosti-

tution and illicit drug use. Depriving individuals such as

Mr. Bennis of the primary vehicle, figuratively and

literally, for their unlawful conduct is a viable option for

communities addressing the demand side of this conduct.

Burdening the property interest of co-owners of the ve-

hicle, with possible forfeiture of that interest, is rationally

related to this goal.®

5 The Mayor of Chicago, Richard Daley, once commented on the

intimate relationship between a car, a “john” or customer, and

prostitution. In addressing a proposed ordinance to seize the cars

of certain motorists, he stated,

When someone commits a crime and you take their car—

oh, my God, it’s like taking their home.

It’s amazing. Americans have a love relationship with a car

. You can put them in jail, but when you take their car,

it’ll have a dramatic impact on communities that have pros-

titution.

See Fran Spielman, Council Cracks Down on 2 Street Meneces,

Chicago Sun-Times, July 30, 1992, News at 4.

Although the instant litigation deals with an automobile used

for an act of gross indecency, cars are intimately involved with

neighborhood deterioration in other ways. For example, they are

used for the distribution of controlled substances. More impor-

9

In its forfeiture jurisprudence, the Court has recognized

the intimate relationship an object can have to certain

crimes. In United States vy. The Cargo of the Brig Malek

Adhel, 43 U.S. (2 How.) 210 (1844), the Court ad-

dressed forfeiture of a ship due to the acts of primarily

one individual. The captain had engaged in piratical con-

duct prohibited by a federal statute. The owners of the

ship contested its forfeiture insofar as they had no knowl-

edge of how their ship would be used. The Court, never-

theless, held that the “innocence” of the owners could not

“withdraw the ship from the penalty of confiscation under

the act of Congress.” Id. at 232-33.

The Court in Brig Malek Adhel did not use the ship as

a conduit for punishing the chiefly culpable individual.

The captain apparently had been punished. And there

were no issues of personal jurisdiction which shaped the

Court’s decision. Yet, the Court still upheld the forfeiture

of the ship. The rationale seems to have rested on the

intimate relationship between the prohibited conduct and

the vessel. The Court states, “And this [condemnation

of the ship] is done from the necessity of the case, as the

only adequate means of suppressing the offence or wrong

... Id. at 233. Without the ship, there could be no

piracy.

The forfeited car underlying the instant litigation was

intimately related to the offense punished. Mr. Bennis

could not have found other means of transportation ade-

quate for acquiring Ms. Polarchio’s services. The car was

uniquely necessary both for getting to the prostitution

tantly, an automobile’s connection to ill-gotten wealth and prestige

can have a significantly negative impact on children. U.S. District

Court Judge Blanche Manning once commented, “The only role

models these kids have are their teachers. But when they leave

school, their role models are the young men committing crimes and

driving big, beautiful cars around until they get: arrested.” See

Patricia Callahan, Judges Give ‘Adopted’ CHA Building Reprieve

From Neglect, Hopelessness, Chicago Tribune, December 28, -"

Chicagoland at 2.

10

market and in “hosting” the illicit sexual act. The state

should be allowed to focus on both the individual engaged

in the illicit conduct and the vehicle which facilitated that

conduct.

Subjecting a Co-Owner’s Property Interest in an Abat-

able Nuisance to Possible Forfeiture Is Reasonably

Related to the Legitimate Interest.

The incidental burdens placed on co-owners of vehicles

creating an abatable nuisance are a reasonable consequence

of the statutory scheme. The fact that Mrs. Bennis was

a named defendant in the civil suit for forfeiture does not

change the nature of her burden. When the state moved

against the Petitioner’s husband and the instrument of his

conduct, the Petitioner’s property interests necessarily were

at issue. However, the state should not be precluded from

abating a public nuisance simply because its actions may

have negative consequences on other individuals.

Insofar as co-owners are induced to pay more attention

to the use of their property, the Michigan statute is rea-

sonably related to the state’s legitimate interests. The

possible forfeiture of property interests in co-owned prop-

erty builds a partnership between co-owners and communi-

ties in the effort to preserve neighborhood integrity. A

State’s aim in producing this effect should not be con-

sidered illegitimate or arbitrary. The Court has stated

that using forfeiture to fashion owners into a “secondary

defense” against a proscribed use of property is “within

the limits of due process.” °

® Van Oster v. Kansas, 272 U.S. 465, 467-68 (1926). |

11

II. THE UNINVOLVED CO-OWNER IS PROTECTED

BY SUBSTANTIVE CHECKS ON THE STATE’S

USE OF CIVIL FORFEITURE.

A. There Are Existing Federal Constitutional Protec-

tions for CoOwners of Property Subject to

Forfeiture.

Specific provisions of the federal Constitution already

constrain a state’s use of civil forfeiture proceedings. In

Austin v. United States, 509 U.S. ——, 113 S.Ct. 2801

(1993), the Court held that the Eighth Amendment’s pro-

hibition against excessive fines applied to civil forfeitures

under a federal statute. Petitioner’s property interests then

were protected by the Eighth Amendment. The state

court, for example, could not have forfeited her interest

in the family’s second car, left parked in the garage.

However, the Court in Austin did not rule that the prop-

erty interests of an uninvolved owner always should be

compensated. Rather, the Court declined to create a for-

mula for applying the Eighth Amendment.’ No Eighth

Amendment challenge has been raised in this case.

The Constitution also requires fair procedures for for-

feiture. For example, in United States v. Good Real Prop-

erty, 510 US. , 114 §.Ct. 492 (1993), the Court

applied the Fifth Amendment’s procedural due process

analysis to ex parte seizures under a federal, civil for-

feiture statute.* The Court ruled that,

Unless exigent circumstances are present, the Due

Process Clause requires the Government to afford

™ Justice Scalia’s concurrence, however, offers a line of inquiry

courts might use. He focuses on the relationship of the seized

property to the underlying offense, as opposed to focusing on the

value of the property. See Austin, 118 S.Ct. at 2815 (Scalia, J.,

concurring in part and concurring in the judgment).

8 Although the seizure was under a federal and not state statute,

it is assumed that the holding in Good Real Property applies to

states through the Fourteenth Amendment.

12

notice and a meaningful opportunity to be heard

before seizing real property subject to civil forfeiture.

Id. at 509 (citation omitted).

Finally, the Equal Protection Clause of the Fourteenth

Amendment may confine use of civil forfeiture statutes

in two distinct ways. First, the states cannot apply their

police power behind civil forfeiture in a discriminatory

manner. The Petitioner does not argue that Michigan

has discriminated against her by using its nuisance

abatement efforts to protect only certain communities.

Second, the Equal Protection Clause mandates that the

state have a legitimate interest in subjecting the property

interests of uninvolved co-owners to possible forfeiture.

The Petitioner does not argue that uninvolved co-owners

of an abatable nuisance constitute a protected class re-

quiring more than rational basis protection.’

B. Equitable Powers of the Courts Are a Significant

Check on the Potentially Harsh Effects of Civil

Forfeiture.

The instant litigation provides a clear example of the

significant protection afforded uninvolved co-owners by

the equitable powers of the Michigan courts. The Michi-

gan trial court, during the nuisance proceeding, openly

and carefully addressed the equities involved in forfeiting

Mrs. Bennis’ interest in the car."° The Michigan Supreme

Court further clarified,

It is not contested that this is an equitable action.

That being the case, it is critical to recognize that

the trial judge considered alternatives on the record

and, in the exercise of his discretion, fashioned an

appropriate remedy, abating the entire interest in

the vehicle.

® Notably, equal protection analysis can be identical to due process

analysis.

1© Transcript of the hearing held on November 2, 1988, at 188-89

and 193.

13

Michigan ex rel. Prosecutor v. Bennis, 447 Mich. 719,

742 (1994). Mrs. Bennis’ interests did not go unad-

dressed and unprotected. Protecting such interests, how-

ever, should not mean the state cannot abate a public

nuisance or, alternatively, the state must compensate co-

owners in every instance.

The Court’s forfeiture decisions confirm that a decision-

maker’s discretion, in weighing the equities of a case, can

be sufficient protection for innocent claimants. In United

States v. One Ford Coach, 307 U.S. 219 (1939), the

Court addressed the harsh consecuences made possible

by literal interpretation of a federal forfeiture statute. At

issue was the scope of investigation a creditor had to

demonstrate to mitigate forfeiture of its interest in an

automobile seized because of its unlawful use. In analyz-

ing the statutory history, the Court referenced an in-

nocent claimant’s recourse to the discretion of the Secre-

tary of the Treasury or the Attorney General in seeking

mitigation. This recourse was a “clear remedy” for such

claimants. Id. at 236."

The Michigan court’s ability and concern to weigh the

equities in the forfeiture proceeding protected the Peti-

tioner’s interest more than the discretion referenced in

One Ford Coach. The judiciary has no vested interest in

the decision-making process determining whose property

will be seized. In contrast, an official from the executive

branch might be less objective.

Furthermore, it is the equitable power of the courts

that protects a truly innocent co-owner from having to

forfeit her interest by virtue of her status alone.” All

11 Cf. United States v. United States Coin & Currency, 401 U.S.

714, 721 (1971) (Secretary of the Treasury's discretion is refer-

enced with the implication that it protects innocent claimants).

12 In Goldemith-Grant Co. v. United States, 254 U.S. 505, 512-13

(1921), the Court states, “There may, indeed, be greater risk to

the owner of property in one form or purpose of its bailment than

14

uninvolved co-owners of property creating a public nui-

sance will not have their interest forfeited. Rather, due

to the relationship such co-owners have to the property

and to the people who create the nuisance, these unin-

volved co-owners might have their interest forfeited. The

courts will have the facts of each case to decide the issue.

C. The Protection Afforded by the Political Process in

This Case’s Legal Context Should Not Be Readily

Dismissed.

The state’s political process should not be overlooked

as substantial protection for the uninvolved co-owner of

property subject to forfeiture. While the age of the Michi-

gan statute at issue evidences the strong tradition of civil

forfeiture in our legal history,” the statute is still a

product of legislative deliberation. Consequently, the

voters in Michigan have unhindered and significant re-

course to the voting booth to determine how competing

interests are balanced in the context of civil forfeiture.

The fact that similar statutes are being questioned and

in some cases changed, in fora other than the federal

Constitution, further suggests that the Court should not

rule for the Petitioner. Rather, the Court should allow

the electorate in Michigan and other states to engage in

more legislative dialogue. The Amicus brief of the Amer-

ican Bankers Association states that a current draft of

the model Uniform Controlled Substances Act contains

an “innocent owner” defense."* Such proposed legislation

may offer broad protection for certain categories of

owners. Yet, while states should be free to adopt such

in another, but wrong cannot be imputed to him by reason of the

form or purpose.”

% The statute was enacted in 1915 and amended ten years later.

See Bennis, 447 Mich. at 759 (Levin, J., dissenting).

'* Brief of the Amicus Curiae American Bankers Association in

Support of Petitioner at 8.

15

proposed statutes, the Court should not mandate their

adoption in whole or in part. The federalist form of gov-

ernment created by our Constitution militates against forc-

ing Michigan to follow suit if it chooses not to.”

III. PETITIONER’S CONSTITUTIONAL CHALLENGES

TO THE STATUTE ARE WITHOUT MERIT.

A. Forfeiting the Property Interest of Uninvolved Co-

Owners Does Not Violate the Takings Clause of

the Fifth Amendment.

Property owners always have held their interest sub-

ject to the state’s police power to address criminal activ-

ity. Civil forfeiture was a well-entrenched doctrine in

property law prior to ratification of the Fifth Amend-

ment. In The Common Law, Justice Holmes addresses

the history of the liability of inanimate objects. He states,

“Where a man killeth another with the sword of

John at Stile, the sword shall be forfeit as deodand,

and yet no default is in the owner.” That is from a

a a

1530.

Oliver Wendell Holmes, Jr., The Common Law 25 (Little,

Brown and Company 1923) (1881) (citations omitted).

of forfeiture. In Brig Malek Adhel,”* the Court interpreted

a federal statute enacted in 1819, that allowed the for-

feiture of ships intimately involved in piracy or piratical

1*The American Bankers Association’s brief also references

federal legislation, on civil asset forfeiture, solicitous of innocent

owners. Jd. at 11. However, in the context of statutory forfeitures,

the Court already has stated that the validity of a state statute is

not contingent upon narrower federal statutes. See Van Oster,

272 U.S. at 468.

1 43 U.S. (2 How.) 210 (1844).

16

aggression." The Court held that because the statute

made no exception for violations done without the owner’s

cooperation, the innocence of the owner could not pre-

clude forfeiture. More recently, in Calero-Toledo v. Pear-

son Yacht Leasing Co., 416 U.S. 663 (1974), the Court

referenced the long history of forfeiture statutes in our

legal tradition. This history rarely has entailed the ability

of property owners to impede forfeiture on the basis of

innocence. Justice Brennan, in Calero-Toledo, writes:

But “[ljong before the adoption of the Constitution

the common law courts in the Colonies—and later

in the states during the period of the Confederation—

were exercising jurisdiction in rem in the enforce-

ment of [English and local] forfeiture statutes”

The enactment of forfeiture statutes has not abated;

contemporary federal and state forfeiture statutes

reach virtually any type of property that might be

used in the conduct of a criminal enterprise.

Despite this proliferation of forfeiture enactments,

the innocence of the owner of property subject to

forfeiture has almost uniformly been rejected as a

defense.

Id. at 683 (citations omitted) (internal brackets in the

original ).

The above-referenced history clarifies that Takings ju-

risprudence has entailed the state’s power to abate, by

forfeiture, nuisances without compensating property own-

ers. The bundle of sticks constituting an individual’s

property is created by state law. That bundle has never

mandated compensation when an uninvolved owner’s in-

terest was extinguished in abatement of a public nuisance.

By contrast, the bundle always has been qualified by the

17In fact, “Federal forfeiture legislation in the United States

can be traced back to the first session of Congress.” Terrance G.

Reed, Article: On the Importance of Being Civil: Constitutional

Limitations on Civil Forfeiture, 39 N.Y.L. Sch. L. Rev. 255, 256

(1994) (citing legislation enacted on July 31, 1789).

17

doctrine of sic utere tuo ut alienum non laedas.“ The

Michigan statute subjecting the Bennis car to possible for-

feiture is an outgrowth of this doctrine. Consequently,

the Court’s reasoning in Lucas v. South Carolina Coastal

Council, 112 $.Ct. 2886 (1992), is particularly applicable

to the Respondent’s position. Civil forfeiture has long

been a “background principle[] of the State’s law of prop-

Sa ee

. at .

In Calero-Toledo, the Court specifically upheld the

forfeiture of a yacht against a Fifth Amendment, Takings

Clause challenge.” A lessee of the vessel had violated

a Puerto Rico statute regarding use of controlled sub-

stances. The yacht was seized and subject to forfeiture.

The lessor-owner challenged the forfeiture arguing, inter

alia, that it deprived him of property without just com-

pensation. He asserted that his lack of knowledge and

involvement in the underlying criminal enterprise was of

constitutional significance. The Court held otherwise.

After referencing the history of its civil forfeiture juris-

prudence, the Court stated,

cea ott tae Gk a ee

state lawmakers,

os hs cated oir Ot oollad patos were free to deter-

mine that certain uses of property were undesirable

and then establish “a secondary defense against a

forbidden use. . .”

Id. at 686 (quoting Van Oster v. Kansas, 272 U.S. 465,

467 (1926)).

Contrary to the Petitioner’s argument, Calero-Toledo

is not distinguishable in terms of some hidden level of

culpability applied to the lessor-owner. Petitioner argues

that Calero-Toledo involved an owner innocent of only

18 See Black’s Law Dictionary 1380 (6th ed. 1990).

19 416 U.S. 668 (1974).

18

criminal wrongdoing.” The holding, under this interpre-

tation, does not apply to owners innocent of any and all

wrongdoing, including negligence. However, a close read-

ing of the opinion belies the Petitioner’s interpretation.

Two justices dissented from the majority, specifically ar-

guing that “the forfeiture of property belonging to an

innocent and nonnegligent owner violates the Fifth and

Fourteenth Amendments.” Jd. at 690-91." The majority’s

reasoning then implicitly encompassed the owner’s lack of

negligence.”

B. The Power of a State to Subject a Co-Owner’s Inter-

est to Forfeiture Should Not Be Controlled by State

Property Law Doctrines Taken Out of Context.

The Court’s decisions already suggest that the states

have substantial room statutorily to induce vigilance from

uninvolved co-owners. Communities need this room to

build additional deterrence to certain illegal activity. To

the extent discussion of inducement and deterrence sug-

gests a negligence standard, the duty of care is more

expansive than Petitioner would concede.

Recent decisions clarify that the constitutional focus, in

civil forfeiture proceedings, is on the owner’s responsibility

and power to deter property misuse and his exercise of

that power. In Calero-Toledo, the Court suggests that

a state can induce innocent co-owners to be more cogni-

zant of how their property is used, where the co-owner

has the means to influence that use. The Court quotes

Chief Justice Marshall as stating, “[A] forfeiture can only

be applied to those cases in which the means that are

prescribed for the prevention of the forfeiture may be

* Brief for Petitioner at 27-28.

21 Justice Stewart and Justice Douglas argued this point.

22 Indeed, Justice Douglas’ dissent poirts out that “only one

marihuana cigarette was found on the yacht.” Calero-Toledo, 416

U.S. at 693 (Douglas, J., dissenting).

19

employed.” Calero-Tolede, 416 U.S. at 689 (quoting

Peisch v. Ware, 8 U.S. (4 Cranch) 347, 363 (1808)).

power—even more than knowledge. Addressing its ruling

in Calero-Toledo, the Court states, “[W]e have permitted

punishment in the absence of conscious wrongdoing, so

long as the defendant was not ‘powerless’ to prevent or

correct the violation.” /d. at 2810 n.11 (citing United

States v. Park, 421 U.S. 658, 673 (1975)) (emphasis

added ) .**

The states’ ability to create a “secondary de.2nse” to

certain criminal conduct should not be defined by the

% 113 S.Ct. 2801 (1993).

* The Court’s jurisprudence on “public welfare offenses” generally

supports this reasoning. In Morissette v. United States, 342 U.S.

246 (1952), the Court implicitly approved of a category of criminal

statutes that did not require inquiry into the individual's state of

mind. Such statutes created a form of strict liability in the criminal

law. The Court approvingly found that they “heighten the duties

of those in control of particular . . . activities that affect public

health, safety or welfare.” Jd. at 254. The Court also referenced

an earlier opinion by Chief Justice Taft who referred to,

regulatory measures in the exercise of what is called the police

power where the emphasis of the statute is evidently upon

achievement of some social betterment rather than the punish-

ment of the crimes.

Id. at 268-59 (quoting United States v. Balint, 258 U.S. 250, 252

(1922) ).

20

strictly legal pressures an uninvolved co-owner can exert

on another co-owner. Petitioner argues that a co-owner’s

property interest in an abatable nuisance should be subject

to forfeiture only if there has been negligent entrustment.

Petitioner then refers to the Restatement (Second) of Torts

§ 308 (1965) as defining negligent entrustment.* Osten-

sibly, this section exposes the co-owner to liability where

she is able, to some extent, to control the property. How-

ever, Comment (a) to Section 308 defines control as the

ability of the owner to demand her consent for using the

property.” State property law in turn determines the

ability of a property owner to demand her consent. Peti-

tioner’s property interest then could be forfeited only if

she could have obtained an injunction against her hus-

band for any use of their car.

Petitioner’s negligent entrustment standard would not

apply to many co-ownership arrangements. Specifically,

the standard rarely would apply to married co-owners. A

co-owner married to the other co-owner cannot demand

her consent before her spouse uses their property. Under

state property law, each spouse normally can use the

entire property as he or she wishes, without prior consent.

The negligent entrustment doctrine would effectively pre-

clude states from subjecting much co-owned property to

forfeiture.

The only difference between the Petitioner and the

owner in Calero-Toledo is the timing of when each un-

25 Section 308 states:

It is negligence to permit a third person to use a thing or to

engage in an activity which is under the control of the actor,

if the actor knows or should know that such person intends or

is likely to use the thing or to conduct himself in the activity

in such a manner as to create an unreasonable risk of harm

to others.

The Petitioner would modify §308 by replacing the language

“in such a manner as to create an unreasonable risk of harm to

others” with “in a manner proscribed by law”.

26 See id. at 100, cmt. a.

21

involved owner decided to share her or his property with

another. In Calero-Toledo, the decision was made after

the owner obtained title. In the instant litigation, the

decision to share the property was made before the owner

obtained title. Nevertheless, each of the decisions trig-

gered issues of responsibility. State civil forfeiture laws

should be allowed to address an owner’s responsibility for

those who use her property—whether the users are lessees

or CO-Owners.

IV. PLACING THE BURDEN OF PROVING INNO-

CENCE ON THE CO-OWNER DOES NOT VIOLATE

PROCEDURAL DUE PROCESS UNDER THE FOUR-

TEENTH AMENDMENT. |

The Court’s interpretation of federal statutes permitting

forfeiture of property does not evidence a concern that

the owner must prove her lack of knowledge or consent.

For example, in Austin the government had to show prob-

able cause that the subject property was put to prohibited

use.” The burden then shifted to the property owner to

show that her interest was protected.“ In applying the

Eighth Amendment’s restrictions against excessive fines,

no member of the Court suggested that the statute’s

burden allocation was unconstitutional.

The Court’s lack of constitutional concern is readily

defensible given the nature of civil forfeiture proceedings.

The burden can be met by a preponderance of the

evidence.” |

The spousal context of the instant litigation further

demonstrates why the co-owner alleging innocence should

27 Austin, 113 §.Ct. at 2815 (Scalia, J., concurring in part and con-

curring in the judgment). The statute at issue was 21 ¥.S.C. § 881.

*8 Id. See 21 U.S.C. § 881(a) (4) (C).

2 Cf. David J. Stone, The Opportunity of Austin v. United

States: Toward A Functional Approach to Civil Forfeiture and the

Eighth Amendment, 73 Boston U. L. Rev. 427, 482 (1998) (dis-

cussing the burden of proof under various federal statutes) ..

22

bear the burden of proof. Whatever standard, if any, the

Court adopts in protecting the uninvolved owner’s property

interest, that owner will have better access to the evidence

of innocence. Moreover, the evidentiary rules protecting

the marital unit might effectively preclude the state from

proving any form of negligence.”

Lastly, the potential for abuse inherent in a defense

that can preclude or impede forfeiture suggests that the

burden of proof rest with the owner. Otherwise, criminals

may be encouraged to place property partly or entirely

in the names of their spouses, relatives, or friends to im-

munize it from seizure.

CONCLUSION

Communities increasingly are facing threats to neighbor-

hood integrity. To fight these threats various approaches

are being explored that focus on both the supply and

demand side of criminal conduct. While state electorates

struggle to balance competing interests in exploring these

approaches, the Court should not constitutionally narrow

the alternatives. |

The states should be allowed to induce co-owners to

be mindful of community concerns. If one co-owner uses

shared property as an abatable nuisance, the other co-

owner should not be allowed to impede forfeitwre actions

against the property. Co-ownership, in some cases,

involves responsibility for the actions of another. In

Dobbins’s Distillery v. United States, 96 U.S. 395 (1877),

the Court addressed the forfeiture of certain real and per-

3© Testimonial immunity and the marital communications privi-

lege often apply only in criminal cases. However, courts and com-

mentators have labeled the forfeiture proceeding “quasi criminal.”

See, e.g., Terrance G. Reed, Article: On The Importance of Being

Civil: Constitutional Limitations On Civil: Forfeiture, 39 N.Y.u.

Sch. L. Rev. 255, 261-62 (1994) (citing Boyd v. United States, 116

U.S. 616 (1886)). Consequently, the aforementioned spousal privi-

leges may become a significant issue in civil forfeiture proceedings

involving married co-owners. ;

23

sonal property. The lessee of the property was charged

with defrauding the government. The leased property was

thereby subject to forfeiture regardless of the lessor’s lack

of knowledge of the misconduct. The Court concluded,

“{I}f the lessee abuses [the lessor’s] trust, it is a matter to

be settled between him and his lessor.” Jd. at 404. Like-

wise, when Mr. Bennis abused the trust of the Petitioner,

it was proper for the State to make such misconduct a

matter to be settled between Petitioner and her husband.

Respectfully submitted,

ROBERT TEIR RICHARD K. WILLARD *

General Counsel MARVIN H. Lett

AMERICAN ALLIANCE STEPTOE & JOHNSON LLP

FOR RIGHTS & 1330 Connecticut Avenue, N.W.

RESPONSIBILITIES Washington, D.C. 20086

1146 19th Street, N.W. (202) 429-3000

Suite 250

Washington, D.C. 20036 * Counsel of Record

(202) 785-7844 for Amici Curiae

September 18, 1995