The Camp Zoe case is in the news as an example of the Feds’ aggressive move to shut down “drug venues” by targeting where drugs are bought, sold and consumed, regardless of whether the owner of the property is implicated in criminal conduct.
In U.S. District Court in Missouri, the U.S. Attorney’s Office has filed a civil asset forfeiture lawsuit to try to seize Camp Zoe, a 350 acre campground that hosts music gatherings, after a four year long investigation by the DEA and the Missouri State High Patrol which allegedly found widespread drug use and sales on the property.
According to the Government’s complaint filed in early November, “over the past several years law enforcement agents have specifically observed the open sales of cocaine, marijuana, LSD (acid), ecstasy, psilocybin mushrooms, opium and marijuana laced food products by individuals attending the music festival and made multiple undercover purchases of illegal drugs.”
The Government’s petition initiating the forfeiture action alleges that the property is subject to forfeiture because of the unlawful activity taking place there. Under a civil forfeiture action, the Government does not need to convict the property owners of a crime or even charge them with a crime. At the time the Government filed its’ seizure and forfeiture petition, the owner of Camp Zoe had not been charged with a crime under either state or federal law.
It may be in this case that the U.S. Supreme Court gets the chance to revisit the “excessive fine” defense to asset forfeiture cases.
The Eighth Amendment to the U.S. Constitution says that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” U.S. Const. Amend. VIII (emphasis added). The Supreme Court, in Austin v. United States, 509 U.S. 602 (1993), addressed whether the “Excessive Fines Clause” applied to forfeitures under 21 U.S.C. §881(a)(4) and (a)(7), the federal Controlled Substances Act. In Austin, the defendant pled guilty in state court to possession of cocaine with intent to distribute and was sentenced to seven years imprisonment. Subsequently the federal government filed an in rem action in federal district court seeking forfeiture of defendant’s auto body shop and mobile home.
During the proceeding, evidence was introduced that the defendant sold two grams of cocaine at his auto body shop. A subsequent search of the defendant’s mobile home uncovered small amounts of marihuana and cocaine, a gun, drug paraphernalia and $4700.00 in cash. Summary judgment for the government was granted and the Court of Appeals affirmed.
The Supreme Court reversed the judgment of the Court of Appeals and held that the “Excessive Fines Clause” applies to civil forfeitures under 21 U.S.C. § 881(a)(4) and (a)(7). The Court further held that such forfeitures are properly considered as “punishment,” noting the legislative history which characterizes forfeitures of real property as “a powerful deterrent,” the inclusion of an innocent owner defense and the language of the statute itself which states property is forfeitable only if tied directly to the commission of drug offenses.
The Supreme Court reversed and remanded the cause to the Court of Appeals to determine if the forfeiture violated the Excessive Fines Clause. The Supreme Court did not establish any guidelines to be used in the determination of whether a particular in rem forfeiture is excessive, though Justice Scalia’s concurring opinion does say that the sole measure of an in rem forfeiture’s excessiveness is the “relationship” between the forfeited property and the offense.
In the Camp Zoe case, it would appear that the Feds will need to prove that “relationship” between the venue and the unlawful drug activity – conducted by third parties, not the owner of the property – is strong enough to withstand the “Excessive Fines” defense. It would seem that an owner of property who is not charged with, let alone convicted, of a crime, would have a strong case to argue that forfeiting his property, which was legally obtained and was not the “instrumentality” of a crime, would violate the Eighth Amendment.
Still, one has to wonder – how many more venues may be in the Government’s sights using this theory of seizure and forfeiture?
For more information about the author and Texas Forfeiture Law, visit www.TexasForfeitureLaw.com .