John Fortin Featured in Law360 Access to Justice Pro Bono Article
Law360 interviewed litigation attorney John Fortin about a pro bono case he is handling that could reshape the forfeiture process in Nevada. The Access to Justice article (provided below) is titled “Attorneys Work To Take The ‘Civil’ Out Of Civil Forfeiture.” John’s case presents an issue of first impression arguing Nevada’s civil forfeiture statute is unconstitutional because it violates Nevada’s double jeopardy clause as it may result in extracting an additional punishment based on the same criminal conduct. John’s case is part of a nationwide effort to change the way government approaches seizing property allegedly linked to criminal activity. The case is also featured in a Pro Bono Spotlight article published in Reuters’ Daily Docket titled “Nevada lawyer seeks to upend state’s forfeiture laws.”
John took the case on appeal through the Nevada Supreme Court’s pro bono appellate program which refers cases to the Legal Aid Center of Southern Nevada, and John volunteered to provide pro bono representation. John is a member of the Legal Aid Center of Southern Nevada’s 300 Hours Club (2021 and 2022) and LACSN recognized John as a Pro Bono Volunteer of the Month.
“Attorneys Work To Take The ‘Civil’ Out Of Civil Forfeiture,” Law360 Access to Justice, 3/11/2023
Elvin Fred will be eligible for parole from prison in two years. But he might not have a place to live if he’s released, according to his attorney. That’s because Nevada wants to take Fred’s home, which it claims he used for drug trafficking, through civil forfeiture, John A. Fortin of McDonald Carano LLP told Law360. Civil forfeiture — a civil proceeding separate from a criminal case — lets police seize and keep property they suspect resulted from or has been used in a crime. It also violates constitutional protections against double jeopardy by punishing defendants twice for the same crime, Fred is arguing before the Nevada Supreme Court. “Losing a home, I don’t think anybody is going to disagree that certainly is punitive,” Fortin said.
Fred’s petition is one of several recent court challenges to civil forfeiture rules around the country. Aside from Fred’s double jeopardy claim, property owners say civil forfeiture violates due process protections, creates an unconstitutional financial incentive for police to seize property, and deprives those facing it of the legal representation that criminal defendants are guaranteed. Law enforcement defends the practice, calling it an important tool for fighting crime that has been upheld by the U.S. Supreme Court.
But attorneys behind the legal challenges want to see civil forfeiture abolished and forfeiture proceedings made part of the criminal process so that property owners have the same protections as criminal defendants. “The theory behind forfeiture is that you committed a criminal act and we’re going to take your things or your money,” said Lisa A. Rasmussen, a Nevada attorney working to reform forfeiture rules in the state. “So there’s no reason why it should be a separate proceeding that’s scary and hard to navigate where someone doesn’t have a lawyer.”
Punished Twice for the Same Crime
The Nevada Supreme Court ordered the state’s Department of Public Safety in January to answer Fred’s petition claiming civil forfeiture violates state constitutional protections against double jeopardy. Fred pled guilty to drug trafficking and was sentenced to life in prison in 2015. It was only after his sentencing, however, that the Nevada State Police’s narcotics task force tried to take the home Fred shared with his sister through civil forfeiture. “If the government wanted to forfeit his property, they should have included within that plea bargain the forfeiture of the property,” said Fortin, who is representing the Freds pro bono. Since the government didn’t do that, Fred argued in his petition, its attempt to take the house now constitutes a second punishment for the same crime. “If you’ve already punished someone and this is the extent of their punishment, then why do you get to punish them again by forfeiting everything?” said Rasmussen, a past president of Nevada Attorneys for Criminal Justice, which filed an amicus brief in the case supporting Fred.
Nevada’s Department of Public Safety and its narcotics task force did not respond to interview requests. But in the task force’s Feb. 24 answer to Fred’s petition, it insisted that the Nevada Supreme Court has previously “found no proof that Nevada’s statutory forfeiture proceedings are so punitive as to render them criminal in nature.” Instead, the task force argued that forfeiture serves “non-punitive goals,” such as preventing property from being used in crimes and defendants from profiting from illegal conduct, according to the task force’s filing. It added that proceeds from civil forfeiture also help defray the costs of crime prevention. Ruling in Fred’s favor “would necessarily prevent civil forfeitures in Nevada because every defendant would simply argue that it violates their right against double jeopardy under the Nevada Constitution,” the task force said. “This would be an absurd result.”
U.S. Supreme Court precedent backs the task force up. Civil property forfeitures aren’t a “punishment” implicating the federal Constitution’s double jeopardy clause, the justices ruled in U.S. v. Ursery in 1996. So Fred is challenging Nevada’s civil forfeiture law under the state’s constitution, which unlike the U.S. Constitution, contains an inalienable right to acquire, possess and protect property, according to Fortin. “There is no equivalent clause in the U.S. Constitution,” Fortin said. “Nevada does look very favorably upon property rights.” Nevada law enforcement disagrees, insisting in its answer to the state’s Supreme Court that “the scope of double jeopardy protection provided by the Nevada Constitution and the United States Constitution is one and the same.” High courts in both Nebraska and New Mexico, however, have recognized differences between their respective constitutions and the U.S. Constitutions, agreeing in the past that civil forfeiture proceedings triggered double jeopardy protections for defendants who went on to be hit with criminal charges. “And that’s really what we’re hoping the Nevada Supreme Court will say as well,” Fortin said.
Guilty Until Proven Innocent
The civil forfeiture program in Albuquerque, New Mexico, did violate the U.S. Constitution, according to a federal judge. That’s because, rather than requiring the government to prove guilt, it placed the burden on property owners to prove their innocence, in violation of the 14th Amendment, U.S. District Judge James O. Browning ruled in 2018. “That is the fundamental principle, that you are innocent until proven guilty,” said Rob Johnson, senior attorney at the Institute for Justice. “And that really was at the core of the case.”
Johnson challenged Albuquerque’s civil forfeiture law in court after the city tried to take Arlene Harjo’s car because her son allegedly drove it drunk. Under Albuquerque’s ordinance, innocence was an affirmative defense, meaning that, in order to get the car back, Harjo had to prove that she couldn’t have reasonably anticipated the car would be used in a crime, Johnson explained, a requirement he says created “a huge due process problem.” Albuquerque police and city attorneys did not respond to requests for comment.
But in court filings, they insisted a defendant always has the burden to prove any affirmative defense. “For example, there is no constitutional violation in requiring a criminal defendant to prove the affirmative defense of self-defense in response to a murder charge,” the city said, adding, “It is well established that an owner has the burden to prove his or her innocence as a defense to forfeiture.” Judge Browning was unpersuaded, finding that the city’s requirement that Harjo prove her innocence violated procedural due process. A spokesperson for Albuquerque’s mayor declined to comment, but did confirm that the city has stopped doing civil forfeitures.
Money as Motivation
Civil forfeiture also creates an unconstitutional financial incentive for law enforcement to prosecute people, according to attorneys challenging the programs. “The police and the prosecutors who are doing this forfeiture, their budgets and their overtime and their equipment gets paid for in part through the forfeitures,” explained Institute for Justice attorney Ben Field. “So they have every incentive to be as aggressive as possible.”
That incentive is what led Nevada’s Highway Patrol to seize Stephen Lara’s life savings after pulling him over for a traffic stop, despite not charging him with any crime, according to Field, who sued NHP on behalf of Lara in 2022. Nevada provides “slightly better” protections for property owners like Lara than most states, Field said. But state police “completely circumvent” those protections through federal equitable sharing, a program through which police give seized property to the federal government for forfeiture proceedings conducted in federal court under federal law.
The federal government then returns 80% of the property to the state agency that seized it, Field added. So NHP stood to gain $69,520 — or 80% of Lara’s $86,900 — by seizing his cash, meaning “the seizure in this case was motivated by constitutionally impermissible self-interest on the part of NHP,” according to Lara’s complaint, which accused police of violating the Nevada Constitution’s due process protections. In addition to NHP, Lara also sued the federal government, which agreed to give Lara his money back. Despite that, however, he’s continuing his NHP suit, which was recently given the green light to proceed after the Nevada Supreme Court decided a related issue in another case in December, according to Field. “It’s important to him and to us to create precedent in Nevada to establish that this shouldn’t happen to other people either,” Field said. NHP did not respond to a request for comment.
In New Mexico, concerns over police’s profit motive were the main impetus for a 2015 change to its forfeiture laws, according to state Sen. Antonio Maestas. New Mexico police were stopping drivers, seizing their money and cars, and not prosecuting them for any alleged crimes, according to Maestas, who sponsored the new law when he was a state representative. “They weren’t interested in public safety outcomes or fighting crime. They were interested in buying a new car for the department or padding their budgets with this civil forfeiture scheme,” Maestas said. “It was a racket.” So, in addition to requiring a criminal conviction to forfeit someone’s property, New Mexico’s reform mandated that seized property go to the state’s general fund rather than law enforcement. “If folks are making money off of criminal enterprises, take it away,” Maestas said. “But don’t give it directly to the guys that are taking it away.”
Lack of Representation
The attorneys handling all three of these cases point to yet another problem with civil forfeiture: Unlike Fred, Harjo and Lara, most people facing forfeiture don’t have lawyers. Since civil forfeitures are civil proceedings, there is no right to counsel as there would be in criminal proceedings, according to attorneys. If we’re going to continue doing this type of forfeiture, then we need to make sure that the defendant has everything that they need and not rely on pro bono counsel. They should probably be guaranteed counsel the moment that their property comes within jeopardy of the law.
And since the typical forfeiture averages around $1,000, it would cost more to hire an attorney to fight a seizure than most people would get returned if they won, lawyers point out. “The economics aren’t there” for attorneys to handle forfeitures, Rasmussen said, which is why most seizures go uncontested. Property owners seek the return of seized property only 22% of the time, according to an Institute for Justice report. “If we’re going to continue doing this type of forfeiture, then we need to make sure that the defendant has everything that they need and not rely on pro bono counsel,” Fortin said. “They should probably be guaranteed counsel the moment that their property comes within jeopardy of the law.”
Some public defenders have pushed back against that suggestion. In opposing a 2021 effort to reform Nevada’s forfeiture laws, Washoe County Deputy Alternate Public Defender Bill Hart warned that public defenders were already too understaffed and overburdened to represent clients in forfeiture cases. But the lack of counsel in forfeiture proceedings is just one of the problems that could be remedied by moving forfeiture proceedings from civil to criminal court, attorneys say.
Requiring a criminal conviction before property is forfeited could alleviate due process concerns in cases like Harjo’s, according to Johnson. Making forfeiture an element of sentencing would prevent defendants like Fred from being punished twice for the same crime, Rasmussen said. And mandating that seized funds not go to the agency that seized them could eliminate police’s financial incentive to aggressively pursue seizures like Lara’s, according to Field. “Nobody is saying that if somebody defrauds people out of millions of dollars that they should be able to keep their ill-gotten gains,” Field said.
“All we’re saying is that if the premise is that the person committed a crime, the government should have to prove that there was a crime,” he added. “And the forfeiture of those proceeds should be handled in criminal proceedings rather than in these separate kangaroo courts.”
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