John Fortin Featured in The Nevada Independent re: Pro Bono Civil Forfeiture Case
The Nevada Independent interviewed litigation attorney John Fortin about a pro bono case he is handling that could reshape the forfeiture process in Nevada. The September 10, 2023 article titled “The government took their home. Now, a family’s lawsuit may change Nevada’s forfeiture system” is provided below and available here. On August 8, 2023 John presented oral argument before the Nevada Supreme Court. 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 an article published in Reuters’ Daily Docket titled “Nevada lawyer seeks to upend state’s forfeiture laws” and an article published in Law360 Access to Justice titled “Attorneys Work To Take The ‘Civil’ Out Of Civil Forfeiture.” 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 and LACSN recognized John as a Pro Bono Volunteer of the Month.
“The government took their home. Now, a family’s lawsuit may change Nevada’s forfeiture system,” The Nevada Independent, September 10, 2023
A family victory may lead to asset seizure being considered a criminal punishment. That would give Nevadans the right to free counsel to fight such proceedings.
A home in Carson City was a place of refuge for the Fred family. Elvin Fred bought the home in 2012 and for years sheltered family members experiencing homelessness, said Sylvia Fred, Elvin’s sister. Today, the home is uninhabitable. From 2019 to 2022, the Nevada government took control of the home under asset forfeiture — which allows law enforcement to take private property believed to be connected to a crime. Elvin, now 41, was sentenced to life in prison with the possibility of parole in 2015 on a drug trafficking charge. Officials recovered methamphetamine, firearms and cash from the home, according to the forfeiture application.
When the family finally regained control of the home in March 2022 following a court victory, it looked nothing like the place that once housed at least six people. Mold covered the walls, a ceiling fan had warped because of moisture, apparent animal feces were scattered along the floor and couches and a television were lying in the backyard. “It’s really sad to know that a place we called home and a place we can go to was taken and abandoned … while we all had to just sit back,” Sylvia said in an interview. “It’s been devastating. It’s been really hard for everybody.”
While the family has regained possession of the home, the state is still pushing to take it back. Both sides are now awaiting a ruling from the Nevada Supreme Court, whose Carson City chambers are just 3 miles from the premises.
The forfeiture process is a civil proceeding that occurs separately from an original criminal sentencing. The Fred family’s lawyers are arguing that violates Nevada’s double jeopardy law, which forbids multiple criminal punishments for the same offense. The government is arguing the court should apply a two-part test from a past U.S. Supreme Court ruling — which said civil forfeitures are not considered a punishment under the U.S. Constitution — to the state system. “When the full weight of the government is placed against a criminal defendant, the government gets one chance to impose a punishment on them,” said John Fortin, one of several lawyers who have represented the Freds since 2020. “We’re not saying no property forfeitures. We’re just saying in one proceeding, not two proceedings.”
The Carson City District Attorney’s Office, which is representing the state in the case, declined to comment for this story because the case is pending.
A victory for the Freds could be a key step in classifying forfeitures as a type of criminal punishment instead of a civil process. That would allow Nevadans the right to free counsel for the proceedings. Many forfeitures go unchallenged because the amount seized is less than what a lawyer would cost.
The Freds are receiving pro bono representation. Fortin often represents clients in commercial litigation cases, but after learning about the Freds through the Legal Aid Center of Southern Nevada, he was compelled to represent them.
How the process works
The civil forfeiture process has two parts: seizure, in which authorities take possession of certain money or property allegedly linked to criminal activity, and forfeiture, where the government seeks to keep the property that was seized.
From July 2021 to July 2022, law enforcement agencies in Nevada seized more than $5.5 million worth of property, with nearly $3 million worth of cash, vehicles and homes involved in criminal activity ultimately being forfeited to the agencies, according to a report from the attorney general’s office. Las Vegas police kept $417,000 of the forfeited property and distributed more than $740,000 to the state’s education fund, the report said. Law enforcement officials have testified to the Legislature that forfeitures are a key way to ensure that “crime does not pay,” or that there should be more trouble than benefits to committing crimes.
The forfeiture process has garnered increasing pushback across the political spectrum, including from criminal justice reform groups and libertarian organizations that view it as an infringement on due process. But legislators have been hesitant to change the process. A bill this year that would have required a criminal conviction before a forfeiture proceeding could start, unless the forfeiture was part of a plea agreement, failed to get a final vote in either chamber. Another bill from the 2021 session that would have placed limits on the practice for low-level drug crimes also failed to move forward.
The Legislature has taken some steps to increase reporting requirements. In 2015, lawmakers mandated that local law enforcement agencies report their forfeiture and seizure activity annually, and this year, the Legislature passed a bill expanding what should be included in those annual reports. But the state’s primary forfeiture statute hasn’t significantly changed since it was written in 1987 — and even then, was a backward step, according to the Freds’ lawyers. “Pre-1987, forfeitures of property across the board — whether it’s a mining claim, an election law claim or other cases going all the way back to the founding — forfeitures were disfavored in the law,” Fortin said.
The fight to save a home
The Nevada Supreme Court case is the latest in the Freds’ eight-year effort to save their home. The home was purchased in 2012 for just over $71,000. Elvin, who was listed as the sole owner, paid $60,000 using money received following the settlement of a civil rights case involving Nevada law enforcement in 2009. Sylvia, who lives in Minnesota, paid the remaining costs, according to court documents.
Sylvia was in college at the time but knew what the home would mean to her family. Her only request to Elvin was that the home would be available to all family members needing shelter. The Freds are members of the Washoe Tribe. “Our belief is we take care of one another,” Sylvia said. “We agreed that none of our family members would ever be homeless.”
Three years later, Elvin was arrested. The state’s Tri-Net Narcotics Task Force had learned through a confidential source that Elvin was supplying methamphetamine out of the residence, according to the forfeiture application. Law enforcement officers witnessed three separate times when Elvin was supplying meth to a local drug dealer. On March 19, 2015, officials raided the property and recovered more than 150 grams of meth from the residence, plus firearms and more than $5,000 in cash, the application said.
Soon after Elvin’s arrest, he and Sylvia worked to get the house’s affairs in order. She was added as a co-owner and in the coming years would continue paying property taxes and utility bills. In 2015, a judge sentenced Elvin to life in prison, telling him “I don’t know how much of a role model you are being unemployed since 2007 and dealing drugs.” The criminal proceedings wrapped in 2018.
Within a year, Carson City law enforcement had received permission to seize control of the home through the forfeiture process. That forced Elvin’s two daughters, who lived in the home, to separate — one stayed in the area, while another moved to California, Sylvia said.
On Aug. 12, 2019, Lisa Fred — another sister of Elvin who lives in Nevada — returned to the home for one last time before the government took control. In a video and photos she took that day, the home appears to be in normal condition, with no noticeable deficiencies. For the next two years, the Freds would continue fighting to regain control of the home. In October 2021, the Nevada Supreme Court ruled in favor of the family and ordered lawyers representing law enforcement to amend their forfeiture proceeding, allowing the home to temporarily return to the Freds. “Everything was damaged,” Sylvia said. “It’s really, really, really sad.”
The legal arguments
Elvin’s lawyers have a new strategy to ensure the Freds can keep the home. They are arguing that the seizure of the home was a separate act of “punishment” for Elvin’s drug trafficking charge. That was a violation of the state’s double jeopardy clause, they argue, which protects against multiple punishments for the same offense.
The primary legal question in the case revolves around whether the state should use federal precedent applied to the U.S. Constitution in questions involving Nevada’s constitution.
The state says yes. Their argument is based on the 1996 U.S. Supreme Court case Ursery v. United States, which ruled a civil forfeiture proceeding was not a form of criminal punishment under the Constitution if it passes a two-part test. The first test asks whether the legislative body intended for the forfeiture proceeding to be civil or criminal. The second asks whether the forfeiture is considered so punitive that it “may not legitimately be viewed as civil in nature.”
“There is absolutely no ambiguity in the legislature’s intent that forfeitures are to be civil proceedings,” government attorneys said in February in their response to Elvin’s Nevada Supreme Court filing. “The Court also pointed out that proceeds from civil forfeiture actions go toward crime prevention and help defray the cost of court proceedings and law enforcement. The same non-punitive goals are accomplished by the forfeiture.”
However, the Freds’ lawyers say the court should look specifically at the history of Nevada’s constitution, not the federal Constitution. They argue that Nevada law has historically disfavored forfeitures — and the Legislature’s 1987 law that created the state’s modern forfeiture system disregarded “this Court’s long constitutional history and tradition.” “Early Nevada common law required the government to satisfy the considerably higher reasonable-doubt burden of proof before obtaining a forfeiture of property. This is because Nevada viewed forfeitures of property as quasi-criminal actions and because forfeitures are punishment,” the lawyers said in a court filing last November.
The Freds’ lawyers also contend that a separate U.S. Supreme Court case — 1932’s Blockburger v. United States — would show that the state’s forfeiture proceedings are a different punishment for the same offense, violating the double jeopardy clause.
Several states, including New Mexico and North Carolina, consider forfeitures a criminal proceeding. “In New Mexico, if you’re acquitted of the criminal charge, as you’re walking out of the courtroom, you pick up your keys to your car, and you pick up the cash that was seized,” said Lee McGrath, the senior legislative counsel for the Institute of Justice, which found the New Mexico law had minimal effect on crime levels.
The two sides presented their oral arguments before the court last month. It is unknown when the court will issue its decision.
The case could open up doors for reforming the forfeiture system, Nevada lawyers said in interviews. “I think what would happen is civil forfeiture would be in limbo until the Legislature revisited it,” said Randy Fiedler, a Nevada lawyer who wrote a brief supporting the Freds’ case last year.
But critics said the Legislature has been uninterested in amending the forfeiture system. Marcos Lopez, the outreach and coalitions director for the Nevada Policy Research Institute, a limited government think tank, said that any proposed changes have stalled in the Senate Judiciary Committee, whose committee chairs for the past few sessions have prosecutorial backgrounds, which initiates forfeitures. “We’ve always felt that the hindrance has come from that kind of conflicting interest,” Lopez said.
The two past judiciary committee chairs — Sens. Melanie Scheible (D-Las Vegas) and Nicole Cannizzaro (D-Las Vegas) — have worked as prosecutors in Clark County. They did not respond to a request for comment on the Legislature’s lack of actions regarding civil forfeiture.
If the Legislature changes Nevada law to reflect that the proceedings represent a criminal punishment, then the proceeding would be included in the original sentencing for a particular crime. That means a defendant’s attorney for their criminal charge would also represent them in a forfeiture proceeding. “I don’t know how many civil forfeitures would come to a different result because of the presence of counsel,” Fiedler said. “But you wouldn’t have the sort of unjust cases like the Freds because there would have been someone there to say, ‘No, don’t do this, or let’s rework the plea agreement in a way that this house is not going to get seized.’”
Eve Hanan, a law professor at UNLV, said this change might also lead to softer punishments out of concern that the criminal sentencing, along with any possible forfeitures, could be considered excessive. “If this was a criminal penalty, that would allow the person to argue to the sentencing judge that the punishment is excessive, and the fines are excessive when you add together the prison term and the amount of money and the seizure of the home,” said Hanan, who did not comment on the specifics of the Freds’ case because she has a case pending before a judge who has presided over the case.
To the Freds, though, what matters now is maintaining control of their home. Elvin will be eligible for parole in two years — and he wants a home to come back to. The home will take hundreds of thousands of dollars to get back into shape. The Freds hope to recoup some of those costs in court. “It’s not a home anymore,” Sylvia said.
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