LAW : Making a Case for Rights of Innocent Owners in Forfeitures


It sounds more like the Hugh Grant-Divine Brown encounter along Sunset Boulevard than a Supreme Court case, but Tina Bennis’ claim against the state of Michigan raises a profound constitutional question that affects the owners of everything from apartments and restaurants to cars and yachts.

Can the government seize an innocent owner’s property simply because someone else used it to commit a crime?

So far, the surprising answer is yes.

While federal law and many state statutes exempt innocent owners from having their property seized, other states still allow the practice. And the Supreme Court has never ruled it unconstitutional.


The law of forfeitures has ancient roots.

For centuries, the king of England raised revenue by collecting taxes on goods. If a ship captain tried to evade customs duties, the king’s agents could seize the vessel as well as its cargo. No one saw a need to drag the ship’s owner into court to prove that he had authorized, or even known about, the scheme to evade customs.

That approach was carried to the Colonies and was established in American law, even though it ignores the principle that people, not property, commit crimes.

In forfeiture cases, prosecutors bring a lawsuit against the item of property rather than its owner. That’s why forfeiture cases have delightfully evocative names such as “U.S. vs. Cargo of the Brig Malek,” an 1844 piracy case; “U.S. vs. One Ford Coupe,” a Prohibition-era booze-running case, and “U.S. vs. One Blue Lobster Vessel Named Tony,” a recent drug-running case.

As the Supreme Court said in the 1844 piracy case, the “vessel is treated as the offender, without regard to the owner’s conduct.” If a ship evaded customs, a distillery produced illegal booze or a yacht carried illegal narcotics, prosecutors could win forfeiture of the item without proving that the owner had done anything wrong.

The high court last affirmed that principle in a 1974 ruling upholding the seizure of an innocent owner’s yacht, which he had leased unwittingly to a drug runner. “Forfeiture statutes further punitive and deterrent purposes,” the court said brusquely.

Later this month, however, the justices will re-examine the rights of innocent owners in forfeiture cases. They will do so in a mundane case involving a wayward husband, a prostitute and his 1977 Pontiac.

On Oct. 3, 1988, Detroit police spotted a Pontiac cruising along Eight Mile Road. The driver picked up a young woman, and the officers saw her perform a sex act in the front seat.

The driver, John Bennis, was arrested and convicted of gross indecency. Not satisfied, prosecutors then moved to seize the Pontiac under the terms of a 1926 Michigan law.

Angry at the loss of the family car, among other things, Bennis’ wife, Tina, filed a civil suit seeking its return. She lost on a 4-3 vote before the Michigan Supreme Court. But in June, the justices agreed to hear her appeal.

“The state has no legitimate interest in punishing one who is entirely innocent,” says her attorney, Stefan B. Herpel of Ann Arbor.

Because the wife did not know the car would be used in the commission of a crime and certainly did not consent, it cannot be seized, he argues.

Groups ranging from the American Bankers Assn. to the National Assn. of Criminal Defense Lawyers filed briefs supporting her appeal. They insist that the court should not allow seizures of property unless the owner knew it was being used for criminal purposes.

But Wayne County, Mich., prosecutors say owners have “an affirmative responsibility to prevent . . . misuse of a vehicle.” They say that Tina Bennis should have suspected her husband and put a stop to his misbehavior.

Clinton Administration lawyers side with Michigan prosecutors and urge the court to uphold the forfeitures.

Tina Bennis had “the burden of proving that she took all reasonable steps to prevent the illegal use of her property,” and she failed to meet that burden, argues U.S. Solicitor General Drew S. Days III.

The justices will hear arguments in Bennis vs. Michigan, 94-8729, on Nov. 29 and will issue a ruling during the first half of next year.