ON A WINTRY December day in 1993, members of a police task force poured through the door of Maya's Restaurant in Kent, ordering customers to drop their chalupas. The Mexican eatery was closing early today, officers said, because the owners were drug dealers. Under asset forfeiture law, which permits confiscation of property linked to crimes, the government was Maya's new proprietor.
Police seized the restaurant on the suspicion that one of its owners had sold several grams of cocaine in the rest room. Although an informant had merely claimed the seller said he was part-owner—with his brother—that was enough for the cops. They took the restaurant in the same way they might seize cash or a car connected to illegal drug deals.
Had police asked, they would have learned there was but one owner of Maya's, Exequiel Soltero. While he was indeed a brother to the suspected drug seller, Soltero had no knowledge of the deal. Yet it cost him five days of lost business and hefty legal fees before the drawn-out case was dropped.
"They screwed me up real good," Soltero, 42, recalled last week. "It took six months to recover, and my name was no good."
"They just went in with a dozen officers during business hours and told everyone the owner was up to his eyeballs in drug activity," recalls Richard Troberman, the Seattle attorney who handled the case. "He had to take a polygraph to prove his innocence."
Seven years and thousands of confiscation horror stories later—most recently, the takeover of Oscar's II restaurant by the city of Seattle under a similar local law—there is solace for Maya's. The restaurant's state case has now helped alter the federal legal landscape of America and reign in a law enforcement tool which has, for 20 years, turned the Constitution on its head: The government not only took private property without due process, it deemed a citizen guilty until proven innocent.
A month ago, Congress passed and President Clinton signed the Civil Asset Forfeiture Reform Act of 2000. The law shifts the burden of proof to the government in federal forfeiture cases and requires prosecutors to prove overwhelmingly that seized property is linked to a crime. Winners can now recover attorney fees and accused persons no longer have to post a 10 percent bond to challenge seizures in court. (Most takings are for property worth less than $20,000 and legal costs can easily exceed the item's value).
Most importantly to cases similar to the raid on Maya's, police can no longer obtain warrants on the basis of hearsay evidence.
"I'VE WORKED ON this for 10 years," says Troberman, who lobbied for passage as cochair of the National Association of Criminal Defense Lawyer's Forfeiture Abuse Task Force, "and it's still sinking in that we've finally made progress."
His former client, Soltero, was also taken aback when told about the new federal law that may lead to local reform. "To be honest, I didn't know about this," he said. "I've been so busy with my business." Now the owner of four restaurants—at which he has employed all 13 of his siblings—Soltero was "very surprised, very happy to hear this. The law was unfair."
US lawmakers—under pressure to modify a law established in the 1970s, but the roots of which date back centuries—were persuaded after hearing about Maya's and other properties seized under the assumption that their owners had tacitly approved criminal activity by taking no action to prevent it.
The claim of Maya's ownership "was nothing but puffery from the brother," testified Sam Buffone of the criminal defense lawyer's group to Senate Judiciary Committee members. "However, the reckless raid, seizure, and forfeiture quest by the authorities cost [the owner] thousands of dollars in lost profits for the several days his restaurant was shut down, as well as significant, lingering damages to his good business reputation."
In response to a long record of forfeiture abuses, odd couples such as the National Rifle Association and the American Civil Liberties Union aligned to support passage of the reform bill. And while the Department of Justice lobbied against major changes, top assistant chief Stefan Cassela conceded in House testimony that "no tool of law enforcement, however effective at fighting crime, can survive long if the public thinks that it violates the basic principles of fairness and due process."
Only federal law will change when the statute takes effect August 23. But local ordinances will eventually follow suit if state legislatures move to revise their laws. "Now that [federal] reform has passed," says Troberman, "I'm hoping Olympia will follow suit in the next session."
He'll lobby for state changes, but he's a little shell-shocked at the smoke-filled process he just witnessed on the Hill. "It's that old saying—and it's true: you really don't want to see laws or sausage being made." US Representative Henry Hyde introduced the first reform bill five years ago, and this year there were six House versions. In the Senate, says Troberman, "there were two competing bills. [Senate Majority Leader Trent] Lott didn't want a floor fight by the GOP in an election year, the public was demanding changes, and the Justice Department was asking lawmakers, 'Well, are you soft on crime or what?'"
Troberman and others feel the final version was a flawed compromise. Federal law enforcers, for example, can still adopt state cases under a process called equitable sharing. The feds then handle the prosecutions and give 80 percent of forfeited assets to local agencies—a process critics say is motivated mostly by money.
And reform won't directly affect local takings laws such as Seattle's car towing program or drug abatement process.
At the least, the US reforms send a message that abuse of property-taking laws will no longer go unchecked.
"The federal bill makes some substantial changes," says Troberman, "but it's not the cure-all. Will we still see abuses? Well, I'd say that probability is limited only by the creativity of prosecutor."