Pubdate: Mon, 13 Feb 2012 Source: Lowell Sun (MA) Copyright: 2012 MediaNews Group, Inc. Contact: http://www.lowellsun.com/ Details: http://www.mapinc.org/media/852 Author: Joyce Tsai, Staff Writer References: Asset Forfeiture http://www.mapinc.org/af.htm LAWYERS: MOTEL CASWELL FORFEITURE CASE UNCONSTITUTIONAL BOSTON -- Attorneys from Arlington-Va.-based Institute for Justice argued Monday afternoon before a judge in U.S. District Court that the federal government's civil-forfeiture case against the Motel Caswell is unconstitutional Attorneys Scott Bullock and Lawrence Salzman argued that the case violates both the 10th and 8th amendments to the constitution in court, and they asked U.S. Magistrate Judge Judith Dein, for a motion for summary judgment that would dismiss the case completely before it went to a jury trial. The 10th amendment, the Caswell's attorneys argue, preserves the balance between the powers of the federal government versus states governments, by protecting states, as well as citizens, from the federal government overreaching or acting in excess of its powers. And they argued that the federal program that the U.S. government is using to try to seize the Motel Caswell, overstepped those boundaries, because there is a state forfeiture law, which applies a different standard for forfeiture of property, which is more protective of citizens than the federal law. The state civil forfeiture law protects property owners, such as the Motel Caswell, from having their property seized, when it used by criminal activity by third parties, because it has a stronger standard to meet for how involved the owner was in the business of unlawfully manufacturing, dispensing or distributing controlled substances on the property at question, Salzman argued. Yet, in contrast, under the federal law, property can be subject to forfeiture, so long as the preponderance of the evidence shows that the property is "used, intended to be used, in any manner or part, to commit, or to facilitate the commission of crimes," he argued. Salzman also argued that "this unilateral decision of state and local law-enforcement officials" to pursue federal civil forfeiture under the equitable sharing program, is not permissible because it didn't seek the consent of the people, through the state legislature. And thus it should not supercede the current state law. According to the Caswell's attorneys' motion for summary judgment, the action was first prompted by the U.S. Drug Enforcement Agency's Vincent Kelly, who approached the Tewksbury Police Department about the federal government's equitable sharing program for federal civil forfeiture of property. Kelly's job was to review newspaper articles on similar properties and reach out to local law-enforcement to investigate opportunities for forfeiture. Under the sharing program, local law enforcement agencies participating in federal forfeiture actions are able to receive up to 80 percent of the proceeds from the forfeiture, according the Caswell attorneys' argument for a motion for summary judgment. "This was a property that rented out rooms tens of thousands of times a year to people looking to sleep for the night," and only some were in the business of illegal drug activity, Salzman said. And the owner Russ Caswell was not aware or involved with any of those drug activities. In addition, Bullock argued that to let the case go forward would violate a First Circuit determination of the 8th amendment, which protects against "cruel and unusual punishment," including excessive fines. He says that the forfeiture of the motel property, which is valued at more than $1 million, which would deprive motel owner Russ Caswell of his livelihood. "The Motel Caswell is Mr. Caswell's predominant source of income and has been for most of his adult life," according to court documents. "And forfeiture cannot deprive someone of its livelihood," Bullock said. U.S. assistant district attorney Sonya Rao, however, argued that the 10th amendment was not being violated, and the equitable sharing program is one can opt into, and requires their sign off and approval of local and state elected officials, not just law enforcement. She also said that the motion of summary judgment would presuppose that the forfeiture would result in the equitable sharing program, but that's not known for sure yet. Also she also argued that the federal government's requirements for civil forfeiture of property are being misinterpreted by the Caswell's attorney, and actually not very different from that of the state. And more discovery would be needed to argue if the seizure of the motel would indeed destroy the owner's livelihood, she said. Judge Dein said about halfway through the hearing, while also asking questions to clarify arguments on both sides, "it sounds like he (Caswell) has very real defenses, though I don't know what would happen if it goes forward." At the end of the hearing, she did not make a judgment, but rather, she said she would "take the matter under advisement." Salzman said that means Dein will likely make a judgment in the next 30 to 60 days, as to whether the case should continue on to a jury trial. - --- MAP posted-by: Richard R Smith Jr.