Texan Challenges Civil Forfeiture Law

Police can keep your cash, car and other property, regardless of whether you've been convicted of – let alone charged with – a crime.

Court records for the forfeiture case hand-selected by Bullock as a perfect example of Texas's abuse of the law show inconsistencies as well: Shortly after authorities seized the Silverado in July 2009, El-Ali wrote a letter to Jacinto City Police Chief Joe Ayala claiming that Faustino still owed him $22,863. However, El-Ali's own bill of sale shows that he charged Faustino only $19,460. In another filing, El-Ali claimed that Faustino owed him $2,350.

While El-Ali's conviction 12 years ago has nothing to do with the civil forfeiture case, it's puzzling that, if there's such prevalent abuse of the law, Bullock selected a case involving a wife-beater who lied about his criminal past and then couldn't keep his story straight in the forfeiture case.

According to Harris County prosecutor Karen Morris, El-Ali's rights as a lienholder were always protected. All he needed to do, she says, was provide documentation showing how much he was owed. Lienholders' interests are protected under the law's "innocent owner defense," which also carves out protections for a person to argue that they had no knowledge, could not have reasonably foreseen or did not purposefully avoid knowing that their property was used in the commission of a crime.

Joshua Lee-Michael Watson was acquitted on criminal charges, but prosecutors still had leverage in civil court.
Courtesy of Montgomery County Sheriff's Office
Joshua Lee-Michael Watson was acquitted on criminal charges, but prosecutors still had leverage in civil court.
Law enforcement seized a cache of guns, money...
Courtesy of Montgomery County District Attorney's Office
Law enforcement seized a cache of guns, money...

The problem, according to Morris, was that El-Ali kept changing his story. She claims he originally told Jacinto City police that he was owed roughly $300. Then, after going months without an attorney, El-Ali teamed with the Institute for Justice and, along with his innocent owner argument, challenged the law's constitutionality.

Because El-Ali wasn't consistent on the amount he claimed he was owed, prosecutors got serious: They demanded personal and/or business tax returns from 2007 to 2009; all business and residential expenses — including canceled checks, receipts, utility bills and the like — for the same years; documentation of the sale of any vehicles for the previous five years; and other information that appears wholly unrelated to the Chevy Silverado. (Ultimately, El-Ali and the Institute for Justice abandoned his innocent owner claim altogether and proceeded only on the constitutional challenge.)

El-Ali's lawyers saw this as a deliberate attempt to bury their client in paperwork, and they fumed over the state's request that El-Ali admit or deny that he knew, should have known or purposefully avoided knowing that Faustino had a history of drunk driving.

In his piece for the Chronicle, El-Ali wrote, "I never knew I had such a burden to investigate the backgrounds of potential buyers in a business transaction...I felt like the state was trying to intimidate me into not fighting the forfeiture and to get me to just throw in the towel so it could keep the truck."

Morris finds El-Ali's complaint disingenuous. For one thing, she says, El-Ali didn't bother to willingly provide proof of how much he was owed in the roughly six months before the discovery process, in which the state asks the respondent to turn over any documentation related to the seized property.

In fact, the process need not be too painful. Take, for example, the 2010 Harris County case of State of Texas v. One Ford F-250, One 2005 Cadillac Escalade and One 2009 Polaris 850 4-wheeler.

Prosecutors filed a notice of forfeiture for those vehicles in a case involving a criminal mastermind who used fraudulent information to open Home Depot credit accounts. He used the accounts to buy generators, which he then sold in order to make payments on his vehicles. The notice was filed in late March; the vehicles' lienholders provided financial statements by mid-May; the state asked the judge to order the vehicles returned in early June; on June 30, the judge granted the state's motion.

Still, critics point to the discovery process in an innocent owner defense as undue burden-shifting, a contention Morris calls "a harebrained, illogical argument." She says the innocent owner claim is an affirmative defense — akin to a claim of self-defense by a criminal defendant in a homicide case — and as such, the burden naturally falls on the person asserting the claim. Therefore, any fuss about burden-shifting is simply smoke and mirrors.

"I mean, it sounds great; it makes really good news," Morris says. "It makes quite a story and it sounds very inflammatory, but when you get down to the nuts and bolts of the legal explanation, that's when people go, 'Oh, yeah, I can see that.'"

Attorney Frye can't see that.

Despite Morris's example of the self-defense assertion in a criminal case, Frye says the innocent owner defense is not truly an affirmative defense — it's a freak of nature.

"Under Texas law," he says, "'innocent owner' has no analogy."

This is largely because it's the property itself — not a person — that's being accused of a crime, and unless a seized Chevy suddenly becomes sentient, it can't defend itself.

Frye puts it this way: At the time of a seizure, "There has to be probable cause to believe that a crime was committed and the property they're seizing has a sufficient nexus to that crime so as to be considered contraband. So the innocent owner defense isn't an affirmative defense to any of that — I mean, the property can be contraband, the property can be properly seized."

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4 comments
PenHead
PenHead

why would you write an article about challenging civil forfeiture laws and concentrate on deframating a man's character because of some domestic dispute he had in the past? Zaher El-Ali was just trying to make an honest buck by selling his car, he didn't break any laws and the cops still seized his property. Zaher El-Ali couldn't even afford a lawyer and I'm thankful that someone stood up for him and the unfortunate circumstances that fell in his lap. Craig Malisow youre a piece of shit -- quit your job and go work for the crooked fucking cops!

marcy
marcy

As this article also points out the police confuse "unusual" with suspicious.  For example, if I were found to be carrying around 500 gift cards totaling $100,000 in apparent face value the police would consider that to be "unusual" and demand an explanation even though there should be no need for someone to explain why they are in possession of $100K of gift cards, a $100k bank account or $100k in cash.  

 

It is certainly unusual to be have any of those but it would also be unusual to pull over a woman with one leg, one arm and red hair.  That shouldn't demand an explanation either.

 

Drive around with a dozen semi-auto rifles, your prescriptions and $50k in cash in your trunk and it would be an almost certainty that the police would seize it all if they found it, they need nothing more than their belief that by golly someone with a lot of guns and cash MUST be up to something criminal.

 

Profiling of another sort.

 

marcy
marcy

The police have been turned into pirates, it's bad policy to not only let the state take it but actually let the police agency that seized it keep it.  Pirate booty isn't what the police should be after.

TOLDYA
TOLDYA like.author.displayName 1 Like

Montgomery County = Facism the end

 
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