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Asset forfeiture: three Texas Supreme Court justices beg legislative review

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Zaher El-Ali lost on his last chance to overturn the forfeiture of his truck and in the process the Texas Supreme Court denied review of an issue it has not considered since 1957.

This is the kind of case that makes me weep for Texas journalism because here we have the highest court in the state having a very open debate about something that both sides on the court admit is vexing, trying as best they can to get the public's attention, and not one single news organization took notice.

What do your justices have to do to get any attention? Shoot fireworks from the courthouse roof?

The loss suffered by El-Ali, a Jordanian immigrant living in Houston at the time, should give any property owner pause for concern. In 2004, he sold a Chevy Silverado on a payment plan. He would still hold title until the truck was paid off.

The buyer got arrested for driving while intoxicated, evading arrest and possessing cocaine. The state seized the truck in a civil forfeiture proceeding: State of Texas v. One 2004 Chevrolet Silverado.

Many Texans may be under the impression that law enforcement only targets drug traffickers with asset forfeitures. As this case clearly demonstrates, that would be wrong.

Justice Don Willett dissented on March 28 when the Supreme Court denied El-Ali's petition for review. Willlet was joined in his dissent by Justices Debra Lehrmann and Phillip Devine.

Not since State v. Richards has the Supreme Court considered asset forfeitures, Willett said. Its application in the Eisenhower era was narrow, he said.

"Fast-forward 57 years, and forfeiture is ubiquitous given the sweep of expanded state and federal laws, and most fatefully, the direct profit incentive baked into them," Willett said. "Indeed, it was the earmarking feature added in 1989 that sparked the explosion in Texas forfeiture actions: Law enforcement agencies and prosecutors can agree to split the revenue for their own use."

Before 1989, asset forfeiture was limited to wresting ill-gotten gains from violent criminals, he continued.

"Today, it has a distinctive 'Alice in Wonderland' flavor, victimizing innocent citizens who've done nothing wrong. To some critics, 21st-century excesses are reminiscent of pre-Revolutionary America, when colonists chafed under the slights and indignities inflicted by King George III and Mother England--among them 'writs of assistance' that empowered government to invade homes and seize suspected contraband. Legal scholars have declared these writs 'among the key grievances that triggered the American Revolution.'"

Texas law provides for an "innocent owner" defense, but this requires him to prove he didn't know or shouldn't have reasonably known of the criminal act.

In 2010, The Economist wrote about El-Ali's case and explained how the state demanded to know whether El-Ali asked the buyer about his previous arrests for drunk driving, "as if that were a car dealer's responsibility." The state also demanded a sheaf of irrelevant documents, such as bank and tax records for the previous two years.

"Mr Ali's lawyer, Scott Bullock, argues that this is 'clearly designed to intimidate' Mr Ali into giving up," The Economist wrote.

El-Ali dropped the innocent owner argument, Willett went on, "because it placed the burden of proof on him, not the government, and he believed that requiring him to prove his innocence was unconstitutional."

Criminals enjoy a presumption of innocence, Willett said, but property owners do not. Combine this with the increasing dependence on asset forfeitures for government revenue and we have a system ripe for abuse.

"Unsurprisingly, civil forfeiture, once focused on the illicit goodies of rich drug dealers, now disproportionately ensnares those least capable of protecting themselves, poor Texans who usually capitulate without a fight because mounting a defense is too costly," Willett said.

Quoting Olmstead v. United States, a 1928 U.S. Supreme Court case, Willett warned, "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficient."

He then cited a 2008 McClatchy article about a Bureau of Alcohol, Tobacco, Firearms and Explosives contract bid for 2,000 toolkits to be inscribed with "Always Think Forfeiture." This play on the agency's initials led to a cancellation of the order after it was embarrassed in the press.

"But it underscored the government's alarming focus on enriching itself by seizing private property," Willett said.

Willett wanted the court to review El-Ali's case. arguing it should try to set some constitutional baseline that would shift the burden of proof a little more in favor of John Q. Public. Realizing that wasn't going to happen, he closed by urging the Legislature "to contemplate anew how Texas law treats its citizens."

Justice Jeffrey Boyd, speaking for the majority, wrote a response to Willett's dissent.

"Courts resolve cases, not just issues, and this case presents a particularly poor opportunity to resolve the issues that disturb the dissent," Boyd said.

El-Ali bears a difficult burden, Boyd noted, because the petitioner abandoned the innocent owner defense in trial court and did not again try to rely on it until his appeal.

"The state contends that, by abandoning any reliance on article 59.02(c), Ali has mooted, and now lacks standing to assert, any challenge to that article's constitutionality," Boyd observed.

"So we are left in this case with either overruling Richards or distinguishing it based on a statutory provision upon which the petitioner intentionally does not rely. Although I share the court's desire that the state not become like old Mother England, I'm not convinced that, in this case, we should consider either option," Boyd concluded.

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