December 8, 2021

By Joe Setyon

Massachusetts grandmother Malinda Harris didn’t have a choice when the government demanded she turn over the keys to her car in March 2015. Police in Berkshire County seized her Infiniti G37 and kept it for six years, treating her like a criminal even though she was never charged or even accused of a crime. Thanks to the Goldwater Institute, Malinda got her car back, but she’s continuing her fight on behalf of other Americans who are facing injustice.

“The police should not be able to take, and keep for themselves, the property of people never convicted of a crime,” Harris told lawmakers this week in written testimony submitted to a U.S. House Committee. “The police should have to prove, beyond a reasonable doubt, that someone committed a crime before they can be punished.”

Because of civil asset forfeiture laws, police don’t have to do that. The government can seize your property if they merely suspect that property has been used in the commission of a crime. The situation is particularly bad in Massachusetts, where, instead of government officials being required to prove guilt, innocent owners whose property was used to commit a crime must prove their own innocence. And after they seize the property, police can keep it and even profit from it.

Harris’ car was seized when she picked it up after lending it to her son, Trevice, who police believed to be selling drugs. Harris wasn’t involved in her son’s alleged dealings, but that didn’t matter.

“I got to my car around 10:30 p.m. Around five uniformed police officers immediately surrounded me. One had his hand on his holstered gun. I was terrified,” she told lawmakers.

“One of the officers demanded the keys to the car. He told me that they were taking the car whether I gave them the keys or not, but if I did not surrender my keys, they may end up damaging the car when moving it. Nobody showed me a warrant. Nobody gave me any sort of written receipt. One police officer told me not to get involved, or I may face criminal charges myself.”

Harris wasn’t a criminal—she was the one being robbed of both her property and her due process rights. “The truth is, this is even worse than being victimized by a criminal,” Harris said. “The forceable deprivation of property feels the same, but at least when someone steals from you, you can call the police. When it is the police taking your property, who can you call?”

She tried calling the police, but no one would tell her how to get her property back. The car sat in police custody for more than five years until Harris finally received a written notice informing her that the government intended to confiscate the vehicle.

As Harris explained, the Berkshire County government was unhelpful at every turn. “I tried calling the prosecutor. They told me it would be a conflict of interest to provide me with any information on how I might fight for my car. The legal papers only gave me a couple of weeks to respond. The prosecutor did not tell me that the deadline to respond to the complaint could be extended, even though they waited more than five years to serve me with the complaint,” she recounted. “It turns out Massachusetts does not set any time limit on how soon the government must start the forfeiture process. As I got closer to the deadline, I became more desperate and frantic. If it wasn’t for a sympathetic court clerk who explained to me how I could file a request for more time as I cried on the phone, I would not be sitting here today.”

This past March, Goldwater Institute attorneys stepped in to defend Harris pro bono, and just days later, the county agreed to return her car. Her story had a happy ending, but that isn’t always the case.

Every year, hundreds of millions of dollars’ worth of property are seized under civil asset forfeiture laws. According to the Institute for Justice, the average currency forfeiture is about $1,300—a sizable sum for most Americans, but often a far smaller amount than what it costs to hire an attorney to get your property back.

Of course, Americans shouldn’t need to obtain legal help just so that the government will return property that it stole. To address these sorts of constitutional violations, Goldwater is advocating for legislation that, among other measures, requires law enforcement to obtain a criminal conviction before forcing citizens to forfeit their property and shifts the burden of proof from property owners to the government. Those were just two of the key provisions of Arizona House Bill 2810, a Goldwater bill that governor Doug Ducey signed into law earlier this year.

Goldwater is also successfully defending the rights of other innocent victims of civil asset forfeiture. When police seized Tucson, Arizona, handyman Kevin McBride’s Jeep Wrangler—and tried to charge him $1,900 if he wanted it returned—because they suspected his girlfriend of selling $25 worth of marijuana, Goldwater helped him get his Jeep back without paying up. Similarly, we came to the aid of Luis Garcia when the Scottsdale Police Department raided his home based on an investigation into his adult son and seized $5,300 that Garcia had raised for youth charity soccer tournament. After Goldwater sent a letter to police demanding officials return the money, they did.

But Goldwater can’t help every innocent victim of civil asset forfeiture, and ultimately, those victims shouldn’t have to need it. As Harris told House lawmakers: “The rules should be clear and fair, so people who cannot afford a lawyer can still defend their property.”

The civil asset forfeiture system needs to be overhauled. The very concept of “innocent until proven guilty” depends on it.

Read more about how Goldwater is protecting innocent victims of civil asset forfeiture here, and click here to read more about Harris’ story.

Joe Setyon is a Digital Communications Associate at the Goldwater Institute.

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