(Reuters) – When lawyer John Fortin learned about an appeal to the Nevada Supreme Court by a woman who claimed her house was wrongly seized by police in an asset forfeiture proceeding, he had two thoughts.
First, he told me, what happened seemed wrong. And second, that the pro bono case “looked very winnable.”
Asset forfeiture — which allows police to seize money or other possessions that they think are connected to a crime — has been under fire in recent years across the political spectrum, with civil rights advocates as well as anti-big government conservatives decrying its lack of due process.
Fortin’s litigation on behalf of siblings Sylvia and Elvin Fred, who are both members of the Washoe Tribe, cuts to the heart of that criticism. If successful, it stands to reshape the forfeiture process in Nevada — and give the Fred family members their three-bedroom Carson City house back for good.
A Las Vegas-based lawyer at McDonald Carano, Fortin, who graduated from the University of Richmond School of Law in 2019, won the first round before the Nevada Supreme Court in 2021, a year after he finished clerking there for Chief Justice James Hardesty, who retired on Jan. 1.
But the fight continues on remand, and Fortin, along with McDonald colleagues Ryan Works, Rory Kay and Jane Susskind, is trying a new argument that appears to have piqued the high court’s interest.
Civil forfeiture, the lawyers assert in what they say is an issue of first impression for the court, violates Nevada’s double jeopardy clause because it seeks to “extract an additional punishment based on the same criminal conduct.”
They got an encouraging signal last week. The high court in a rare move ordered the Carson City district attorney to respond within 28 days to their petition, which was filed in midst of ongoing lower court proceedings.
Carson City DA Jason Woodbury in an email said, “As this is an issue pending adjudication in this case, I prefer to not comment.”
The roots of the case date back to 2012, when Elvin Fred took $60,000 that he got from settling a civil rights lawsuit against Carson City sheriff’s office deputies for allegedly beating him during a wrongful arrest, and put it toward buying a house – a modest, one-story on the east side of town.
He was about $12,000 short, so his sister Sylvia supplied the balance to make the all-cash purchase, Fortin said.
In 2015, Elvin was charged with drug trafficking. According to court papers, police found more than a quarter pound of methamphetamine at the house. He pleaded guilty and was sentenced to life in prison with the possibility of parole.
Before he went to prison, he added Sylvia (who Fortin says was the first person in the family to earn a professional graduate degree – a master’s in education) to the title of the house. She didn’t live there but took over paying property taxes and utility bills on behalf of other family members who did.
The state initiated forfeiture proceedings to seize the house in 2015, but the matter was paused while Elvin’s criminal case proceeded. The state lifted the stay in 2018 and won a default judgment.
The Fred family, who was not notified of the proceedings, learned about the forfeiture when sheriff’s deputies in 2019 put an eviction notice on the front door.
Litigating pro se, Sylvia as co-owner protested the seizure but lost when the district court ruled she lacked standing to object.
Fortin took her case on appeal via the Nevada Supreme Court’s pro bono appellate program, which refers eligible cases to the Legal Aid Center of Southern Nevada. The organization works with the state bar to obtain pro bono representation from volunteer attorneys.
Fortin signed on as counsel and convinced the justices in 2021 to reverse and remand the case.
Since then, he’s added Elvin as a client, and he’s now challenging civil forfeiture as double jeopardy, arguing that the state in taking the house is “seeking to punish Elvin again for the same criminal conduct he is already incarcerated for.”
Fortin acknowledges the U.S. Supreme Court in other cases has rejected this argument. “I think they’re wrong,” he told me. But his claim is based on the Nevada Constitution, which he says “provides robust liberty and property protections that exceed” federal rights.
Fortin isn’t pushing for forfeiture to be abolished entirely. “We don’t want criminals to buy lavish properties with the fruits of their ill-gotten gains,” he said.
Rather, the idea is to reform the process. As the Nevada Attorneys for Criminal Justice argue in an amicus brief, “All forfeiture matters should be handled within the criminal case,” not as a separate civil proceeding.
Pointing to New Mexico as an example, they note that this would give defendants the benefit of counsel. Moreover, it would allow the judge imposing punishment to “properly assess whether forfeiture is not only applicable, but whether it is excessive or appropriate at all.”
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