Nevada attorneys are trying to overturn the state law

(Reuters) – When attorney John Fortin learned of an appeal to the Nevada Supreme Court by a woman who said her home was wrongfully taken by police in a foreclosure proceeding, he had two thoughts.

First, he told me, what happened seemed wrong. And secondly, the pro bono case “looks like the best win.”

Asset forfeiture — which allows police to seize money or other items they believe is connected to a crime — has come under fire in recent years on the political spectrum, with the supporters of civil rights as well as opponents of the federal government who criticize the absence of anything. due process.

Fortin’s lawsuit on behalf of his siblings Sylvia and Elvin Fred, both members of the Washoe Tribe, struck at the heart of that criticism. If it succeeds, it will mean the rehabilitation of the exploitation in Nevada – and give the family of Fred their three-bedroom house of Carson City for good.

A lawyer in Las Vegas at McDonald Carano, Fortin, who graduated from the University of Richmond School of Law in 2019, won the first round before the Supreme Court of Nevada in 2021, a year after his clerk there for Chief Justice James Hardesty, who retired on January 1.

However, the fight continues, and Fortin along with McDonald’s Ryan Works partners, Rory Kay and Jane Susskind, are trying a new argument that seems to have excited the interest of the Supreme Court.

The civil forfeiture, lawyers say in what they say is a case of prima facie case for the trial, violates Nevada’s second jeopardy clause because it seeks to “remove an additional penalty based on upon the same criminal conduct.”

They received an encouraging sign last week. The high court in a rare move director the Carson City district attorney to respond within 28 days c their requestwhich was filed amid the lower court proceedings.

Carson City DA Jason Woodbury in an email said, “Since this is a pending trial in this case, I prefer not to comment.”

The roots of the case date back to 2012, when Elvin Fred took the $60,000 he received from settling a civil lawsuit against members of the Carson City Police Department for providing he was beaten during a false arrest, and given to buy a house – a modest, one-story one on the east side of town.

He was about $12,000 short, so his sister Sylvia gave the balance to make the whole purchase, Fortin said.

In 2015, Elvin was charged with selling drugs. According to court documents, the police found more than a quarter of a pound in the house. He pleaded guilty and was sentenced to life in prison with the possibility of parole.

Before going to prison, he added Sylvia (whom Fortin said was the first member of the family to earn a graduate professional degree – a master’s in education) to the house’s name. He did not live there but took charge of paying property taxes and utility bills on behalf of other members of the family who did.

In 2015, the state began a home invasion investigation, but the case was put on hold while Elvin’s criminal case proceeded. The state lifted the stay in 2018 and won a default judgment.

Fred’s family, who were not informed about the proceedings, learned about the extermination when the sheriff’s deputy in 2019 posted an eviction notice on the front door.

In the main court, co-owner Sylvia contested the seizure but lost when the district court ruled that she did not have standing to protest.

Fortin took his case on appeal through 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 provide expert representation from volunteer attorneys.

Fortin signed on as a consultant and confirmed the judge in 2021 to return and suspend the case.

Since then, he has added Elvin as a customer, and he is now challenging the dismissal of the public as a double jeopardy, arguing that the state in taking the house is “seeking to re-criminalize Elvin for the same crime has already been imprisoned.”

Fortin cites the United States Supreme Court in other cases that have rejected this argument. “I think it’s wrong,” he told me. But his claim is based on the Nevada Constitution, which he says “provides strong liberty and property protections that exceed” federal rights.

Fortin is not pushing for the ban to be abolished entirely. “We don’t want criminals to buy commercial properties with their commercial income,” he said.

But, the idea is to reform the process. As the Nevada Attorney General for Criminal Justice argued in a amicus brief“All termination cases must be dealt with in the criminal case,” not in another civil proceeding.

Pointing to New Mexico as an example, they note that the accused will have the benefit of counsel. In addition, it will allow the judge who imposes the punishment to “examine properly whether it is destroyed not only to use, but whether it is more or more appropriate.”

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