Following up on my Reefer Madness 2.0 post from last summer, various law enforcement agencies around the state have dusted off a controversial legal procedure in an attempt to forfeit land used to grow cannabis without a license. This controversial legal procedure, known as civil asset forfeiture, has been largely dormant in Oregon since the passage of a ballot measure in 2000 that limited state law enforcement agencies’ ability to seize real and personal property under its civil asset forfeiture this legal authority. However, with the rise of law enforcement’s use of this procedure in the context of its larger war on cannabis, I am seeing several problematic themes emerge.
History of Civil Asset Forfeiture in Oregon
Civil asset forfeiture refers to the government’s ability to seize, forfeit and sell real and personal property that is used in the commission of crime or represents the proceeds of criminal activity. Much has been written about abuses of this procedure, which is beyond the scope of this post. But the basic premise of civil asset forfeiture involves the government filing a lawsuit against the property it seeks to be forfeited (as opposed to the individual owners of the property), which is known to lawyers as an in rem proceeding, which then requires the owners to file a claim and assert their ownership interests in court.
In 1989, the Oregon Legislature enacted a comprehensive civil forfeiture statute covering property used in the commission of controlled substances crimes, or the proceeds of such crimes. The statutes did not require that the owner of such property be convicted of, or even charged with, a crime, and because the proceeding was civil in nature, the government did not have to prove that a crime occurred beyond a reasonable doubt – rather, the much lower preponderance of the evidence standard applied.
In 2000, Oregon voters overwhelmingly passed Ballot Measure 3, which amended the Oregon constitution to require that civil asset forfeitures proceed only in cases where the owner of property has been convicted of a crime and the property forfeited has some connection to the crime. Law enforcement agencies immediately challenged the measure in court, arguing that the measure violated Oregon’s one-subject rule. In 2006, that litigation came to an end, with a fractured Oregon Supreme Court upholding the validity of the measure. In 2008, Oregon voters narrowly passed an amendment to Ballot Measure 3 that would allow civil asset forfeiture to proceed in cases where a criminal conviction has been secured against a person who is not the owner of the property, and the owner of the property either knew or should have known that the property represented proceeds of a crime, acquiesced in the criminal conduct, or took the property with the intent to defeat forfeiture.
In 2009, the Oregon Legislature codified much of the procedural and substantive protections of Ballot Measure 3 and added further provisions outlining the steps law enforcement agencies must take to use the civil asset forfeiture procedure. However, while many of the statutes provide substantive protections to innocent owners, the statutes do allow law enforcement agencies to initiate civil forfeiture proceedings prior to a criminal conviction and allows the government to stay (or pause) the civil proceedings while a related criminal matter is pending. The law allows the government to forfeit personal property based on the presence of a criminal conviction and a preponderance of the evidence that the property is an instrumentality or proceeds of the crime, but to forfeit real property they must make those showings based on clear and convincing evidence – that is, evidence that is just shy of beyond a reasonable doubt.
Application of Civil Asset Forfeiture in the War on Cannabis
Over the past year, I have had occasion to deal with several civil asset forfeiture proceedings that involve claims by law enforcement that a parcel of real property was used as an illegal marijuana grow. These proceedings all have one thing in common: the owner of the property leased it to a third party for the express purpose of cultivation of hemp – a federally legal form of cannabis that has a THC content of less than 0.3% on a dry weight basis. In all of these cases, there is scant (if any) evidence that the landowners knew that their tenants were intending to grow marijuana and not hemp, but the government is attempting to use civil asset forfeiture to seize these parcels of land, nonetheless.
The initiation of civil asset forfeiture proceedings in these contexts is extraordinarily problematic – it requires likely innocent landowners to hire counsel to assert their rights, and delays in asserting those rights could result in the property being forfeited by default, even though there is not yet any criminal conviction in connection with the property. Further still, the landowners cannot file a motion to dismiss the proceeding based only on the lack of a criminal conviction. That coupled with the free access to stall the proceeding for years makes defending a civil asset forfeiture proceeding a long and potentially costly endeavor.
But there is a silver lining – if the case proceeds to trial and the government loses, or if the government loses on a motion premised on facts other than the lack of a conviction, the court is required to award attorney fees to the prevailing owner. A skillful practitioner can leverage this attorney fee-shifting provision to convince the law enforcement agency to abandon the civil forfeiture proceeding, but that will likely come at the cost of giving up your right to have your attorney fees reimbursed.
If you have received a notice of civil asset forfeiture, it is important to immediately contact an attorney to assert and defend your rights.
You can contact Kevin Jacoby at firstname.lastname@example.org or 503-488-5424.