Zaher El-Ali: Texan Loses Civil Forfeiture Argument in Appeal

A Texas appellate court on Tuesday shot down a man who argued that the state's civil forfeiture law is unconstitutional.

We covered the case of Zaher El-Ali and a Chevy Silverado in July; in that case, El-Ali had sold the aforementioned truck to Roberto Faustino, who got popped for a DWI and possession of cocaine in 2009. Under civil forfeiture laws, the state was able to seize the truck, even though El-Ali said he was the rightful owner. (He argued that the guy he sold it to was still making payments.)

El-Ali's case was co-opted by a Virginia-based libertarian legal advocacy group called the Institute for Justice, which soon had El-Ali abandon a remedy provided by the law -- the so-called "innocent owner" defense -- and attack the constitutionality of the law itself. Bad move. The Harris County District Attorney's Office won a summary judgment. (The Institute for Justice wound up not liking the Houston Press because we pointed out that El-Ali had lied about his criminal past, which included beating his wife. We thought that sort of thing went to the issue of credibility.)

The court stated in its opinion that "El-Ali complains that the innocent-owner defense is 'undly harsh,' even while he refused to use it to his advantage. An affidavit attesting that El-Ali knew nothing of Faustino's illegal activities likely would have raised a genuine issue of material fact preventing summary judgment."

El-Ali's lead attorney, Scott Bullock, claimed in an Institute for Justice press release that "Civil forfeiture threatens the property rights of all Texans. The last time the Texas Supreme Court looked at this issue over half a century ago, civil forfeiture was a rarely invoked power. Today, it is a multi-million-dollar industry where innocent property owners can lose their homes, trucks, cash, and other property without ever being charged, let alone convicted of a crime. Now is the time for the Texas Supreme Court to restore protections for private property rights."

We agree that the statute practically invites police and prosecutorial abuse, and there have been such horror stories in Texas and other states. But when we asked local attorneys who fought these kind of cases and who alleged such abuse to give us examples and let us talk to clients, we heard crickets. And a review of recently filed civil forfeiture cases in Harris County didn't indicate any "innocent owners" being railroaded.

If anyone out there has any horror stories and is willing to talk, please let us know.

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