Russell Caswell of Tewksbury, MA was notified about two and a half years ago, in September of 2009, that the federal government was seizing his motel through a process known as civil forfeiture. The government, in conjunction with the Tewksbury Police Department, had found that the Motel Caswell was the site of 7 major drug investigations and arrests from 2001–2008. In addition, the police claimed there were an estimated 100 drug investigations conducted on the property. Civil forfeiture does not require the owner to be accused of any crime, and does not require the state or federal government to compensate the owner in any way for the forfeiture. Caswell is being represented by Attorney Scott Bullock of the Institute for Justice, and they are currently awaiting a decision on a summary judgment motion, which asked that the judge dismiss the claim on Caswell’s motel on the grounds that the forfeiture is unconstitutional.
The Motel Caswell, a family-owned business in Tewksbury, MA, is currently involved in litigation with the Tewksbury Police Department. The TPD is attempting to seize the property, alongside the federal government, using a process known as civil forfeiture.
Once the federal government had initiated their claim on the motel, Caswell’s only recourse would have to be the innocent owner clause, which is part of the Civil Asset Forfeiture Reform Act of 2000. It states that owners are required to prove that they “did all that reasonably could be expected under the circumstances to terminate such use of the property,” in regards to any crimes that may have occurred on the premises. Congress passed CAFRA after hearing a similar case in which the government attempted to seize the Red Carpet Inn of Houston, TX from its owners, even though the hotel staff had gone to lengths to notify the local police of illegal activity in order to allow them to take preventive action.
Caswell says that he has done his part to prevent crime, including installing a security camera in the back of the motel (in addition to the one already in the front office) and copying driver’s licenses and writing down license plate numbers on the cards that his guests sign in on. He has also taken pains to keep a comprehensive “Do Not Rent” list, which has a number of offenders who have either caused trouble at the motel or failed to pay their rent. However, most of these safeguards were instituted after the notice for forfeiture was received. But Caswell claims that the police never informed him of the status of any arrest or investigation that they conducted on his property, so he did not have information made available to him that could have helped him form a better plan against such activity. The police officers involved in the cases which were cited in the forfeiture notice have confirmed in their depositions that they never spoke to Caswell about any arrest they made at the motel. “I think what they’re getting at is I’m supposed to— Like say right now we’re sitting here and hear … a siren go by. I’m supposed to … go over there and see if it went to the motel or not… and then sit and wait for a day or two to see if there’s anything in the paper about it. And I’m supposed to take that as to make my business decisions on as to what to do about certain problems or whatever,” Caswell said.
Owner Russell Caswell sits behind his desk, which is cluttered with all the papers pertaining to the forfeiture of his motel. Newspaper headlines and legal documents clutter the desk space until the surface cannot be found. Caswell says he never really payed attention to the newspapers until he received the notice of forfeiture.
Caswell was explaining that the police believed that he should know what was happening on his property because of news stories that were listed in the local paper. But papers such as the Lowell Sun have in the past written headlines that did not cast a positive light on the motel. One such headline, run in October of 2005, reads “Tewksbury motel lab is latest sign of fast-growing problem,” effectively assigning ownership of the drug lab to the motel, as opposed to the dealer. With headlines like this, it is not surprising that Caswell did not check the paper daily for mentions of his motel. However, the Tewksbury Police Department must have believed this was enough notification on their part to convey a problem that they saw developing on the property. Attorney Scott Bullock said “What’s really amazing about this case is that the police never came to him and said, ‘You know, we’ve got a problem here, let’s work together, here’s what we’d like you to do, let’s try this.’ Nothing of that sort. They’ve never addressed him on any of the issues that are there. The first way that they dealt with this was to file civil forfeiture action against his property. That’s a strong indication that what’s really at stake here is a desire to obtain the property and financially benefit from it rather than try to address any crime problems there.” Bullock was referring to the fact that the Motel Caswell currently has no mortgage. It is worth over $1.8M as of 2009. Another telling detail was discovered in the deposition of DEA Agent Vincent Kelly, when he stated that it was policy for the government not to go after property without at least $50,000 worth of equity. So the value of the property in question is considered before steps for forfeiture are even taken.
Another instance of civil forfeiture abuse was reported by News Channel 5’s Phil Williams. In his report, he discovered that the police patrolling on Interstate 40 in TN were using civil forfeiture law to seize large sums of cash from cars that they pulled over, under suspicion that the money was linked to drugs. The kicker: The two sides of the highway are known for trafficking in drugs on one side, and carrying out money on the other, and there were ten times as many seizures recorded on the “money side” of the interstate. If the owners did not take legal action to get back their property, the police would be legally authorized to use that money for drug law enforcement. Dickson Police Chief Ricky Chandler told Williams that his department was taking advantage of the civil forfeiture law to obtain money to increase their budgets. Since the Tewksbury Police Department stands to gain up to 80 percent of the asset forfeiture of the Motel Caswell, the incentive corollary is striking. “When you have this perverse financial incentive like you do with forfeiture, people are going to start looking for opportunities to raise revenue as opposed to fairly enforcing the law,” said Bullock.
Art Love sits in the Front Office, aiding guests that check into the motel. He has worked for the Motel Caswell for over six years, and maintains that he and the owner have done what they can to keep drug dealers from conducting business on the property.
Selectman Douglas Sears spoke about the history of the motel, and the general sentiment of the town in its regard. “The particular concerns that it has had, with drugs and the sale of drugs, and at some point the manufacturing of methamphetamine … and the Tewksbury Police are tired of having to spend their resources on the Caswell when there’s so many other places that they could be paying attention these days.” Sears did find the charges interesting, which can be boiled down to a negligence theory on the part of the owner. Sears indicated that he was concerned over the fair application of the law in regards to all of the business owners in the town. “There is a lot of drug problem in this town, I don’t know to the extent that the Caswell is being singled out, … I don’t know if it’s fair, and I don’t know if the forfeiture law is being fairly applied… I think it’s easier to pick on the single, stand-alone enterprise than one that’s a franchise… I don’t know the extent that he’s being picked on, but I would say that he certainly feels he’s being picked on. And I don’t want him to be picked on.”
Larry Sanders, Secretary for the Tewksbury Republican Town Committee, said that the actions of the Tewksbury Police Department disturbed him so much that he wrote a speech to give at a meeting of the Town Council. “It seems to me he is innocent until proven guilty. He did not partake in any crime so why is he being punished? Why is he losing his property? … They are presuming he is guilty and taking his property without due process…, his property is tied up legally now. And then we have the issue… of property rights. If we don’t have property rights, we don’t have individual rights. It goes right back to the founding of America… It’s so un-American. It’s the reason I stood up at the Town Meeting and said that the town officials should order the Police Department to stop cooperating with the DEA.”
While it is unclear what the Town Officials could do at this point in order to affect the decision of the government, Sanders’ opinion is clear: The Tewksbury Police Department is overreaching its power to seize a property that has tremendous value, and the owner is not being accused of any crimes. Bullock outlined the arguments being presented in court at the hearing for the summary judgment motion. He said that the forfeiture violates the 8th and 10th Amendments. The 8th Amendment refers to the use of excessive fines and excessive bail. In the case of the Motel Caswell, the forfeiture of the motel would deprive the owners of their livelihood. The 10th Amendment states that all powers not granted to the federal government nor prohibited to the States are reserved to the States or the people. As Bullock explained, “Massachusetts law has stronger protections for people like Mr. Caswell. They make it more difficult, especially to seize real estate: houses and businesses like the Motel Caswell. So under state law the Police Department could not have done this forfeiture and they would not have profited from it as much as they would under federal law. So what happened is the local police department did an end-run-around around [state] law, and worked with the federal government, and now the federal government and the local police department are going to split the proceeds.”
Bullock has said that he is currently waiting to hear back on the decision of the judge. “Hopefully the judge will rule in our favor now with this motion… She’s gonna… take it under advisement and write an opinion about it. We’re hoping… that she would dismiss it now. If she doesn’t and decides to hold off, then what would happen is that we would go to trial in the case, probably sometime over the summer…, and we’ll do everything in our power to make sure that Mr. Caswell holds onto what’s rightfully his.” The summary judgment hearing was held on February 13, 2012, and a decision should be announced within 30–60 days of that date.
The U.S. Attorney’s Office did not return calls for comment.