The Tewksbury, MA Police Department and the US Attorneys Office are persisting with a civil asset forfeiture claim of the Motel Caswell. They allege that controlled substance violations and numerous narcotics investigations are tied to Russell Caswell’s property. The investigations appear, in part, triggered by Russell Caswell’s attempts to deter drug usage at his motel by reporting suspicions of renters’ drug usage to the Tewksbury PD. Perhaps seeing an opportunity (the property is estimated to be worth $1,000,000), the police enlisted the aid of the DEA to file a complaint for the forfeiture of the motel (if the forfeiture is successful, local law enforcement stand to pocket as much as 80% of the proceeds through the DOJ’s equitable sharing program) citing “probable cause to believe that the Defendant Property was used or intended to be used to commit, or to facilitate the commission of, a violation of 21 U.S.C. §§ 841, 846, and/or 856.”

Detective Sergeant Thomas M. Casey’s supporting affidavit states,

The Defendant Property has been the subject of over one hundred narcotics investigations (including investigations involving the trafficking, distribution, and possession of illegal narcotics) conducted by the TPD Criminal Bureau since 1994. (An average of about 6 investigations per year at the time of the affidavit)

The police do not argue that Russell Caswell (or his family, or his staff) participated in any criminal behavior.

The Institute for Justice,  a libertarian public interest law firm representing Russell Caswell, notes that “the arrests the government complains of represent less than .0005 percent of the 125,000 rooms the Caswells have rented over that period of time.”

Mr Caswell actively attempted to deter narcotics usage at his motel by notifying the police of his suspicions as well as maintaining and employing a “do not rent” list for troublesome renters. Such actions could (and should) qualify Russell Caswell as an innocent owner.

If this sounds familiar, it might because you’ve been following accounts of the attempted Motel Caswell forfeiture. It might also be because the story line is strikingly similar to that of the Red Carpet Inn that helped pass the Civil Asset Forfeiture Reform Act of 2000 (CAFRA).

The government's
action was based on a negligence theory--that the motel owners, GWJ
Enterprises Inc. and Hop Enterprises Inc., had somehow ``tacitly
approved'' alleged drug activity in the motel's rooms by some of its
overnight guests.
    There were no allegations that the hotel owners participated in any
crimes. Indeed, motel personnel called the police to the establishment
dozens of times to report suspected drug-related activity. U.S.
Attorney James DeAtley readily bragged to the press that he envisioned
using current civil asset forfeiture laws in the same fashion against
similar types of legitimate commercial enterprises, such as apartment
complexes.
    The government claimed the hotel deserved to be seized and
forfeited because it had ``failed'' to implement all of the ``security
measures'' dictated by law enforcement officials. This failure to agree
with law enforcement about what security measures were affordable and
wise from a legitimate business-operating standpoint was deemed to be
the ``tacit approval'' of illegality cited by the prosecutors,
subjecting the motel to forfeiture action.

-Samuel J. Buffone, National Association of Criminal Defense Lawyers (NACDL),

appearing at the Senate Judiciary hearings on CAFRA, July 21, 1999

Congress passed the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), in part, to stop government agencies from using civil asset forfeiture as a more profitable eminent domain. And while many of Henry Hyde’s reforms were watered down, or disposed of, the innocent owner defense was an important reform that survived. It was written with the Red Carpet Motel in mind. And, it was written for future innocent owners like Russell Caswell.

It provides a uniform innocent owner defense, and that was
involved in the case Senator Biden talked about where this
motel in a very tough neighborhood, a crime-ridden
neighborhood, had drug transactions going on. And the owners
repeatedly reported it to the police, withheld permission. You
try to evict some drug dealers sometime; I wish you a lot of
luck. But the police couldn't do it, and the police took his
property, and he finally got it back after the Houston
newspapers raised hell and wrote editorials, and I have them
here.
    So an innocent owner defense is where you do everything you
can. You report it to the police, you withhold permission for
these illegal transactions, and that gives you a safe harbor.

-Henry Hyde, House Judiciary Chairman, appearing at the Senate Judiciary

hearings on CAFRA, July 21, 1999

Congress took pains to describe what a person may show to qualify as an innocent owner. The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) states

‘‘(2)(A) With respect to a property interest in existence
at the time the illegal conduct giving rise to forfeiture took
place, the term ‘innocent owner’ means an owner who—
‘‘(i) did not know of the conduct giving rise to forfeiture;
or
‘‘(ii) upon learning of the conduct giving rise to the
forfeiture, did all that reasonably could be expected under
the circumstances to terminate such use of the property.
‘‘(B)(i) For the purposes of this paragraph, ways in which
a person may show that such person did all that reasonably
could be expected may include demonstrating that such person,
to the extent permitted by law—
‘‘(I) gave timely notice to an appropriate law enforcement
agency of information that led the person to know
the conduct giving rise to a forfeiture would occur or has
occurred; and
‘‘(II) in a timely fashion revoked or made a good faith
attempt to revoke permission for those engaging in such
conduct to use the property or took reasonable actions
in consultation with a law enforcement agency to discourage
or prevent the illegal use of the property.
‘‘(ii) A person is not required by this subparagraph to
take steps that the person reasonably believes would be likely
to subject any person (other than the person whose conduct
gave rise to the forfeiture) to physical danger.

It is absurd that Russ and Pat Caswell are still fighting this forfeiture claim. And it is even more absurd that the Department of Justice is party to the claim. The Department of Justice was represented at the CAFRA hearings by former Deputy Attorney General Eric Holder.

We said before and we say again that there should be a uniform innocent owner defense available to claimants in all civil forfeiture cases. While the Supreme Court held in Bennis v. Michigan that an innocent owner defense is not mandated by the Due Process Clause of the Fifth Amendment, that does not mean Congress cannot enact such protection by statute. We think it should….

We support the enactment of a uniform innocent owner defense. A person who does not know that his/her property is being used illegally, or who becomes aware of the illegal use but takes all reasonable steps to try to stop it, should not suffer the loss of the property through forfeiture.

-Eric Holder, Deputy US Attorney General,

appearing at the Senate Judiciary hearings on CAFRA, July 21,1999