No. 94-8729

In the Supreme Court of the United States

OCTOBER TERM, 1995

TINA B. BENNIS, PETITIONER

v.

STATE OF MICHIGAN

ON WRIT OF CERTIORARI
TO THE MICHIGAN SUPREME COURT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

DREW S. DAYS, III
Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

MICHAEL R. DREEBEN
Deputy Solicitor General

RICHARD H. SEAMON
Assistant to the Solicitor General

J. DOUGLAS WILSON
Attorney

Department of Justice
Washington, D.C. 20530
(202)514-2217

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QUESTION PRESENTED

Whether the Due Process Clause of the Fourteenth
Amendment precludes a State from forfeiting a wife's
interest in scar that her husband, a co-owner of the
car, used in violation of state law, when the wife did
not know that he would use it illegally.

(I)

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TABLE OF CONTENTS

Interest of the United States . . . . 1 
Statement . . . . 2
Summary of argument . . . . 5
Argument:
The abatement of the vehicle comports with the Due
Process Clause of the Fourteenth Amendment . . . . 7
A. The Constitution bars the punitive forfeiture of
property when the owner alleges and proves that
he took all reasonable steps to prevent illegal use
of the property . . . . 7
B. The "all reasonable steps" standard does not apply
to all forfeitures or all claimants . . . . 16 
C. Petitioner has not satisfied the "all reasonable steps"
standard . . . . 22
D. The Court should reject the innocent owner stand-
ard that petitioner proposes . . . . 26 
Conclusion . . . . 30

TABLE OF AUTHORITIES

Cases:

American Society of Mechanical Engineers, Inc. v.
Hydrolevel Corp., 456 U. S. 556 (1982) . . . . 20 
Austin v. United States, 113 S. Ct. 2801
(1993) . . . . 10, 11, 20, 24
C.J. Hendry Co. v. Moore, 318 U.S. 133 (1943) . . . .23 
Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.
663(1974) . . . . passim 
Concrete Pipe & Products of California, Inc. v. Con-
struction Laborers Pension Trust, 113 S. Ct. 2264
(1993) . . . . 24
Dobbins's Distillery v. United States, 96 U.S. 395
(1878) . . . . 8
Dolan v. City of Tigard, 114 S. Ct. 2309 (1994) . . . . 15-16,24 
Grosfield v. United States, 276 U.S. 494 (1928) . . . . 18
Helvering v. Mitchell, 303 U.S. 391 (1938) . . . . 24
           
(III)

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IV

Cases-Continued:

J.W. Goldsmith, Jr.-Grant Co. v. United States,
254 U.S. 505 (1921)....8, 9, 11, 16
Lucas v. South Carolina Coastal Council, 112 S.  Ct.
2886 (1992) . . . . 18, 24
Martin v. Ohio, 480 U.S. 228 (1987) . . . . 24
Mathews v. Eldridge, 424 U.S. 319 (1976) . . . . 24
Mugler v. Kansas, 123 U.S. 623 (1887) . . . . 18
New York Central R.R. v. White, 243 U.S. 188 (1917) . . . . 19
One Lot Emerald Cut Stones v. United States, 
409 U.S. 232 (1972) . . . . 18, 24
One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S.
693 (1965) . . . . 18
Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1
(1991) . . . . 20
Peisch v. Ware, 8 U.S. (4 Cranch) 347 (1808) . . . . 14
People v. Schoonmaker, 216 N.W. 456 (Mich. 1927) . . . . 4
Redford v. United States Dep't of Treasury, 691 F.2d
471 (10th Cir. 1982) . . . . 25
Southeastern Telegraph & Telephone Co. v. Danaher,
238 U.S. 482 (1915) . . . . 14
State v. 1979 Pontiac Trans Am, 487 A.2d 722 (N.J.
1985) . . . . 12
State ex rel. Cahalan v. Bernstein, 226 N. W. 2d 56
(Mich. Ct. App. 1974) . . . . 17
State ex rel. Macomb County Prosecuting Attorney v.
Mesk, 333 N.W. 2d 184 (Mich. Ct. App. 1983) . . . . 17
Sweet v. Rechel, 159 U.S. 380 (1985) . . . . 18
TXO Production Corp. v. Alliance Resources Corp.,
113 S. Ct. 2711 (1993) . . . . 14
The Palmyra, 25 U.S. (12 Wheat.) 1 (1827) . . . . 7
Threlkeld v. State, 586 So. 2nd 756 (Miss. 1991) . . . . 12
United States v. Boynton, 297 F. 261 (E.D. Mich.
1924) . . . . 18
United States v. Cargo of Brig Malek Adhel, 43 U.S.
(2 How.) 210 (1844) . . . . 7-8
United States v. Jeffers, 342 U.S. 48 (1951) . . . . 18

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VI

Cases-Continued                 

Page

United States v. One Parcel of Real Estate, 852 F.
Supp. 1013 (S.D. Fla. 1994) . . . . 21 
United States v. One Parcel of Real Estate Consisting
of Approximately 4,657 Acres, 730 F. Supp. 423 (S.D.
Fla. 1989) . . . . 21
United States v. One 1980 Stapleton Pleasure Vessel
Named Threesome, 575 F. Supp. 473 (S.D. Fla. 1983) . . . . 29
United States v. One Tintoretto Painting, 691 F.2d 603
(2d Cir. 1982) . . . . 12, 24
United States v. Park, 421 U.S. 658 (1975) . . . . 15 
United States v. Santoro, 866 F.2d 1538 (4th Cir.
1989) . . . . 23
United States v. $6,700 in U.S. Currency, 615 F.2d 1
(1st Cir. 1980) . . . . 12 
United States v. $69,292 in U.S. Currency, No. 93-56545
(9th Cir. Aug. 7, 1995) . . . . 11 
United States v. $250,000 in U.S. Currency, 808 F.2d
895 (1st Cir. 1987) . . . . 23
United States v. 228 Acres of Land & Dwelling, 916
F.2d 808 (2d Cir. 1990), cert. denied, 498 U.S. 1091
(1991) . . . . 23 
United States v. $2,500 in U.S. Currency, 689 F.2d 10
(2d Cir. 1982), cert. denied, 465 U.S. 1099 (1984) . . . . 23 
Van Oster v. Kansas, 272 U.S. 465 (1926) . . . . 5, 8, 9, 11, 16, 19
Young v. Masci, 289 U.S. 253 (1933) . . . . 19

Constitution, statutes and regulations:

U.S. Const.:
Amend. V (Just Compensation Clause) . . . . 9, 15, 16
Amend. VIII (Excessive Fines Clause) . . . . 11
Amend. XIV . . . . 12, 15
Due Process Clause . . . . 1, 2, 14
18 U.S.C. 545 . . . . 1
18 U.S.C. 1955 . . . . 1
19 U.S.C. 1595a (1988 & Supp. V 1993) . . . . 1 
19 U.S.C. 1615 . . . . 22
19 U.S.C. 1703(a) . . . . 18
21 U.S.C. 881(a) . . . . 11

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V

Cases - Continued:

Page

United States v. 1966 Beechcraft Aircraft, 777 F.2d
947 (4th Cir. 1985) . . . . 11-12, 29
United States v. 92 Buena Vista Avenue, 113 S. Ct. 1126
(1993) . . . . 8 
United States v. One Assortment of 89 Firearms,
465 U.S. 354 (1984) . . . . 18 
United States v. One Blue Lobster Vessel Named Tony,
Jr., 639 F. Supp. 865 (S.D. Fla. 1986) . . . . 29 
United States v. One Ford Coupe Automobile, 272 U.S.
321 (1926) . . . . 8
United States v. One 1980 Bertram 58 Motor Yacht,
876 F.2d 884 (11th Cir. 1989) . . . . 12 
United States v. One 1986 Chevrolet Monte Carlo,
817 F. Supp. 729 (N.D. III. 1993) . . . . 21. 
United States v. One 1983 Homemade Vessel Named
"Barracuda," 858 F.2d 643 (11th Cir. 1988) . . . . 18 
United States v. One 1982 28 International Vessel,
741 F.2d 1319 (11th Cir. 1984) . . . . 12
United States v. One 1957 Rockwell Aero Commander
680 Aircraft, 671 F.2d 414 (10th Cir. 1982) . . . . 12
United States v. One 1970 Pontiac GTO, 529 F.2d 65
(9th Cir. 1976) . . . . 23
United States v. One 1971 Chevrolet Corvette, 393 F.
Supp. 344 (E.D. Pa. 1975) . . . . 28 
United States v. One 1976 Cessna Model 210L Aircraft,
890 F.2d 77 (8th Cir. 1989) . . . . 11
United States v. One 1976 Lincoln Mark IV, 462 F.
Supp. 1383 (W.D. Pa. 1979) . . . . 30
United States v. One 1973 Buick Riviera Automobile,
560 F.2d 897 (8th Cir. 1977) . . . . 28
United States v. 141st Street Corp., 911 F.2d 870 (2d
Cir. (1990), cert. denied, 498 U.S. 1109 (1991) . . . . 2, 12, 20-21, 29
United States v. One Parcel of Land Located at 7326
Highway 45 North, 965 F.2d 311 (7th Cir. 1992) . . . . 20
United States v. One Parcel of Property with Bldgs.,
Appurtenances & Improvements, 960 F.2d 200 (1st Cir.
1992) . . . . 25

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VI

Cases-Continued:

Page

United States v. One Parcel of Real Estate, 852 F.
Supp. 1013 (S.D. Fla. 1994) . . . . 21 
United States v. One Parcel of Real Estate Consisting
of Approximately 4,657 Acres, 730 F. Supp. 423 (S.D.
Fla. 1989) . . . . 21
United States v. One 1980 Stapleton Pleasure Vessel
Named Threesome, 575 F. Supp. 473 (S.D. Fla. 1983) . . . . 29
United States v. One Tintoretto Painting, 691 F.2d 603
(2d Cir. 1982) . . . . 12, 24
United States v. Park, 421 U.S. 658 (1975) . . . . 15 
United States v. Santoro, 866 F.2d 1538 (4th Cir.
1989) . . . . 23
United States v. $6,700 in U.S. Currency, 615 F.2d 1
(1st Cir. 1980) . . . . 12 
United States v. $69,299 in U.S. Currency, No. 93-56545
(9th Cir. Aug. 7, 1995) . . . . 11
United States v. $250,000 in U.S. Currency, 808 F.2d
895 (1st Cir. 1987) . . . . 23
United States v. 228 Acres of Land & Dwelling, 916
F.2d 808 (2d Cir. 1990), cert. denied, 498 U.S. 1091
(1991) . . . . 23
United States v. $2,500 in U.S. Currency, 689 F.2d 10
(2d Cir. 1982), cert denied, 465 U.S. 1099 (1984) . . . . 23 
Van Oster v. Kansas, 272 U.S. 465 (1926) . . . . 5, 8, 9, 11, 16, 19
Young v. Masci, 289 U.S. 253 (1933) . . . . 19

Constitution, statutes and regulations:

U.S. Const.:

Amend. V (Just Compensation Clause) . . . . 9, 15-16
Amend. VIII (Excessive Fines Clause) . . . . 11
Amend. XIV . . . . 12, 15 
Due Process Clause . . . . 12, 14 
18 U.S.C. 545 . . . . 1
18 U.S.C. 1955 . . . . 1        
19 U.S.C. 1595a (1988 & Supp. V 1993) . . . . 1 
19 U.S.C. 1615 . . . . 22 
19 U.S.C. 1703(a) . . . . 18 
21 U.S.C. 881(a) . . . . 11

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VII

Statutes and regulations-Continued:

31 U.S.C. 5317 (1988 & Supp. V 1993) . . . . 1 
Mich. Comp. Laws Ann. (West 1987):
600.3801 (Supp. 1995) . . . . 2 
600.3805 . . . . 2 
600.3810(2) . . . .2 
600.3815(2) . . . . 2
600.3825(1) . . . . 17
600.3825(1)-(3) . . . 2 
600.3825(3) . . . . 3
750.338b . . . . 2
N.J. Stat. Ann.  2C:64-5(b) (West Supp, 1995) . . . . 12 
28 C.F.R. 9.5(b)(5) . . . . 12

Miscellaneous:

7A Am. Jur. 2d Automobiles & Highway Traffic (1980) . . . . 19
52 Fed. Reg. 11,437-11,438 (1987) . . . . 29
W. Presser, Handbook of the Law of Torts (4th ed.
1971) . . . . 21

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In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 94-8729

TINA B. BENNIS, PETITIONER

v.

STATE OF MICHIGAN

ON WRIT OF CERTIORARI
TO THE MICHIGAN SUPREME COURT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT
INTEREST OF THE UNITED STATES

This case concerns the extent to which the
Constitution limits the forfeiture of property owned
by a person who was unaware of and uninvolved in the
criminal conduct on which forfeiture was based. The
United States seeks forfeiture of the proceeds and
instrumentalities of criminal activity under various
federal statutes.  Although many of those federal
statutes expressly limit the forfeiture of the property
of an "innocent owner," some of them do not. See 31
U.S.C. 5317 (1988 & Supp. V 1993); 19 U.S.C. 1595a
(1988 & SUPP. V 1993); 18 U.S.C. 1955; 18 U.S.C. 545.
Moreover, some federal statutes that do contain inno-
cent owner provisions have been construed in light of
courts' views of applicable constitutional limits. See,
         
(1)

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2

e.g., United States v. 141st Street Corp., 911 F.2d 870,
877 (2d Cir. 1990), cert. denied, 498 U.S. 1109 (1991).
The Court's decision in this case is therefore likely
to affect federal forfeiture proceedings.
     
STATEMENT

1. On October 3, 1988, two Detroit, Michigan, po-
lice officers saw petitioner's husband, John Bennis,
stop the 1977 Pontiac he was driving and pick up a
woman in an area frequented by prostitutes. When
the officers approached the car moments later, they
saw Mr. Bennis and the woman engaged in sexual
activity in the front seat. Based on that incident, Mr.
Bennis was arrested and later convicted of gross in-
decency, in violation of Mich. Comp. Laws Ann.
750.338b (West 1987). In addition, the prosecutor for
Wayne County, Michigan, brought an action against
Mr. Bennis and petitioner, as co-owners of the car,
seeking its abatement. J.A. 2-6, 46-47; see Mich.
Comp. Laws Ann.  600.3805, 600.3810(2) (West 1987).
Michigan law declares that "[a]ny * * * vehicle
* * * used for the purpose of lewdness, assignation,
or prostitution" is a nuisance.  Mich. Comp. Laws
Ann. 600.3801 (West 1987 & Supp. 1995). The law
authorizes an action for abatement against the
owners of the property alleged to be a nuisance. Mich.
Comp. Laws Ann. 600.3805, 600.3810(2) (West 1987).
In such an action, "[p]roof of knowledge of the exis-
tence of the nuisance on the part of the defendants or
any of them, is not required." Mich. Comp. Laws Ann.
 600.3815(2) (West 1987). The law provides that, when
a vehicle is found to be a nuisance, the court must
order its sale. Mich. Comp. Laws Ann.  600.3825(1)
through (3) (West 1987). The proceeds of the sale are
used first to pay the expenses of the sale and then to

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3

pay any liens "created without the lienor having any
notice that such property was being used or was to be
used for the maintenance of a nuisance"; any balance
goes into the general fund of the state treasury.
Mich. Comp. Laws Ann.  600.3825(3) (West 1987).
In their answer to the complaint for abatement of
their car, the Bennises alleged as an affirmative de-
fense that the complaint "failed to plead any facts or
allegations that [petitioner] had any knowledge of the
alleged nuisance." Answer at 3. They also alleged
that the abatement statute was unconstitutionally
"vague and overbroad" (ibid.), but they did not other-
wise challenge its constitutionality.
At a bench trial in the Third Circuit Court for
Wayne County, the prosecutor presented testimony
by the arresting officers and people from the neigh-
borhood of the arrest. A security guard who worked
in the neighborhood testified that he saw Mr. Bennis
solicit prostitutes in the area on two occasions before
his arrest. Tr. 144-145; see also J.A. 52-53. The only
defense witness was petitioner. She described how
she and her husband bought the car and then testified
as follows about her knowledge of his conduct (J.A .9):

Q. Were you present with your husband when
he was driving home from work on October 3rd?
A. No.
Q. Did you have any knowledge that your
husband was going to do anything but come
directly home from work?
A. No.
Q. Do you have any knowledge of your husband
soliciting prostitutes?
A. No.

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4

The trial court entered a judgment of abatement,
ordering the sale of the Bennises' car. J.A. 27-28.
The court did not address petitioner's claim that her
lack of knowledge of her husband's illegal use of the
car barred the forfeiture. See J.A. 13-26.
2. The Michigan Court of Appeals reversed by a 2-1
vote. J.A. 29-44. It acknowledged that the abatement
statute appeared to make it irrelevant whether peti-
tioner knew of her husband's illegal conduct. J.A. 31.
Relying on People v. Schoonmaker, 216 N.W. 456
(Mich. 1927), however, the court held that the statute
required the prosecutor "to demonstrate that defen-
dants knew of the use of the vehicle as a nuisance."
J.A. 30. It also held that the record did not prove that
petitioner had such knowledge. J.A. 32. As an alter-
native ground for reversal, the court held that Mr.
Bennis's conduct did not constitute a nuisance under
state law, because it was not continuing in nature and
because there was no "proof that the [sexual] activ-
it[y] * * * [was] in exchange for [money]." J.A. 35.
3. The Michigan Supreme Court, by a 4-3 vote,
reversed the court of appeals' decision and upheld
the abatement of the car. J.A. 45-97. Three justices
joined in a written opinion for reversal, and a fourth
justice concurred in that result. J.A. 45-71. The
three remaining justices dissented; two of them
issued written dissents. J.A. 71-88, 88-95.
The three-judge plurality concluded, first, that the
abatement comported with state law. J.A. 48-66. It
held that Mr. Bennis used the car for an act of "lewd-
ness, assignation, or prostitution" within the mean-
ing of the abatement statute, see J.A. 48-54, and there-
by contributed to the existence of a public nuisance,
see J.A. 54-63. It further held that, "[i]n light of the

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5

plain language of the nuisance abatement statute" and
case law after Schoonmaker, "the statute expressly
obviates the requirement that an owner consent to or
acquiesce in the illegal use of the property." J.A. 65.
The plurality next held that the forfeiture of
petitioner's interest in the car did not violate the
federal Constitution. J.A. 66-70. It based that holding
on Van Oster v. Kansas, 272 U.S. 465 (1926), which
rejected a due process challenge to the forfeiture of a
vehicle by an owner who lacked knowledge of the
illegal conduct that formed the basis for the forfei-
ture, and on Calero - Toledo v. Pearson Yacht Leasing
Co., 416 U.S. 663, 683 (1974), which reaffirmed that
"the innocence of the owner of property subject to
forfeiture has almost uniformly been rejected as a
defense." J.A. 66-68. In light of those decisions, the
plurality stated that petitioner's claim of a lack of
knowledge of her husband's illegal purpose "is with-
out constitutional significance." J.A. 68.
Neither dissenting opinion disagreed with the plu-
rality's analysis of the federal constitutional issue.
Indeed, one of the dissenting opinions, which was
joined by all three dissenting justices, stated that
"abating the property of innocent owners in forfeiture
actions arguably does not violate an owner's constitu-
tional right to due process." J.A. 80-81.

SUMMARY OF ARGUMENT

A. We agree with this Court's suggestion in
Calero-Toledo v. Pearson Yacht Leasing Co., 416
U.S. 663 (1974), that the Constitution generally bars
the punitive forfeiture of property from an owner who
alleges and proves that he took all steps that rea-
sonably could be expected to prevent the illegal con-
duct that led to forfeiture. Applied in the present

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6

context, the "all reasonable steps" standard is consis-
tent with this Court's precedents and reasonably
accommodates governmental and private interests.
B. The "all reasonable steps" standard does not
necessarily apply in all contexts, however. The pres-
ent case involves the forfeiture of non-contraband
under a statute that the State has indicated is
intended to be punitive, as applied in the present
context. This Court need not resolve the existence
and nature of an innocent owner defense in other
contexts. Moreover, respondent does not rely on
traditional principles of vicarious liability to contend
that petitioner should be deemed to have had
knowledge of, or responsibility for, the illegal conduct
that led to forfeiture. In an appropriate case, those
principles could defeat innocent owner status.
C. Under Calero-Toledo, petitioner bore the bur-
den of alleging and proving that she took all reason-
able steps to prevent the illegal use of her property.
Like the property owner in Calero-Toledo, petitioner
failed to plead or prove those issues. In particular,
petitioner did not allege or prove that she lacked
reason to know of the unlawful conduct and that she
took reasonable action under the circumstances to
prevent it.
D. This Court should reject the "reasonable en-
trustment" standard that petitioner proposes. In
many cases, an owner can reasonably be expected to
take precautions against illegal use of his property
after, as well as before, entrusting it to someone else.
The Court should also reject petitioner's argument
that a spouse who lacks actual knowledge or reason to
know of illegal conduct by the other spouse can never

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7

be expected to take affirmative precautions in regard
to jointly owned property.

ARGUMENT

THE ABATEMENT OF THE VEHICLE COM-
PORTS WITH THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT

A. The Constitution Bars The Punitive Forfeiture
Of Property When The Owner Alleges And
Proves That He Took All Reasonable Steps To
Prevent Illegal Use Of The Property

In a long line of cases, this Court has upheld the
forfeiture of property that has been used illegally,
even though the owner of the property was unaware of
and uninvolved in the illegal use, The Court has also
suggested, however, that the Constitution might bar
a forfeiture if the owner alleges and proves that he
took all steps that could reasonably be expected to
prevent the illegal use. In our view, there are situa-
tions in which such a showing by an owner would
establish a constitutional defense. As applied in the
context of this case, the "all reasonable steps" stan-
dard recognizes the interest of blameless property
owners without thwarting the legitimate purposes of
forfeiture statutes.
1. In Calero-Toledo v. Pearson Yacht Leasing Co.,
416 U.S. 663 (1974), this Court reviewed its decisions
concerning "innocent owner" claims in forfeiture
cases. Surveying a consistent course of decisions,
the Court noted that "the innocence of the owner of
property subject to forfeiture has almost uniformly
been rejected as a defense." Id. at 683 (discussing The
Palmyra, 25 U.S. (12 Wheat.) 1 (1827); United States
v. (Cargo of Brig Malek Adhel, 43 U.S. (2 How.) 210,

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8

233-235 (1844) (Story, J.); Dobbins's Distillery v.
United States, 96 U.S. 395, 399-401 (1878)). See also
United States v. 92 Buena Vista Avenue, 113 S. Ct.
1126, 1132 (1993) (plurality opinion) (noting the
historic availability of forfeiture "notwithstanding
the innocence of the owner"). The Court in Calero-
Toledo took particular note of two cases decided this
century that had rejected innocent owner claims
involving, as does this case, the forfeiture of vehicles
from owners who were unaware of and uninvolved in
the unlawful conduct that supported the forfeiture
action. See 416 U.S. at 685-686.
In J.W. Goldsmith, Jr. Grant Co. v. United States,
254 U.S. 505, 509 (1921), the Court upheld against a
due process challenge the forfeiture of a taxicab used
to transport alcohol in violation of federal law, even
though the owner of the taxicab (a dealer in cars who
had retained title while financing the purchase) had
no knowledge, or even "any notice or reason to sus-
pect," that the car would be used illegally. Likewise,
in Van Oster v.. Kansas, 272 U.S. 465, 466-469 (1926),
the Court upheld the forfeiture of a car used to
transport intoxicating liquor, in violation of state
law, by a person to whom the owner had entrusted the
car. The Court rejected the owner's claim that due
process entitled her to resist the forfeiture because
she lacked knowledge of, and did not authorize, the
illegal use. Id. at 467-468. See also United States v.
One Ford Coupe Automobile, 272 U.S. 321,332 (1926).
The Court in Calero-Toledo identified several ra-
tionales for why "[j]udicial inquiry into the guilt or
innocence of the owner could be dispensed with." 416
U.S. at 686. As Goldsmith-Grant Co. had explained,
by authorizing the forfeiture of property used in

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9

crimes regardless of the owner's knowledge of or
involvement in the crimes, "Congress interposes the
care and responsibility of their owners in aid of the
prohibitions of the law and its punitive provisions."
254 U.S. at 510, quoted in Calero-Toledo, 416 U.S. at
685-686. And, as Van Oster had noted, forfeiture laws
that apply without regard to the owner's knowledge of
or involvement in criminal activity "build[] a secon-
dary defense against a forbidden use and preclude[]
evasions by dispensing with the necessity of judicial
inquiry as to collusion between the wrongdoer and
the alleged innocent owner." 272 U.S. at 467-468,
quoted in part in Calero-Toledo, 416 U.S. at 686.
The Court in Calero-Toledo concluded that, even if
a statutory forfeiture scheme affords no defense to
"innocents," it is nonetheless constitutional, in light
of "[t]he historical background of forfeiture statutes
in this country and this Court's prior decisions sus-
taining their constitutionality." 416 U.S. at 680. The
Court then applied that view to the facts before it. In
that case, Puerto Rico forfeited a yacht on which the
Puerto Rico police found marijuana that had appar-
ently been brought on board by one of the yacht's les-
sees. Id. at 665. The yacht company-lessor "was nei-
ther involved in nor aware of the act of the lessee
which resulted in the forfeiture." Id. at 664; see also
id. at 668. The Court rejected the yacht company's
contention that the forfeiture violated the Just Com-
pensation Clause. See id. at 680-690. The Court de-
termined that, as applied to conveyances used in con-
nection with drug crimes, the Puerto Rico forfeiture
statutes "foster[ed] the purposes served by the under-
lying criminal statutes, both by preventing further il-
licit use of the conveyance and by imposing an eco-

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10

nomic penalty, thereby rendering illegal behavior un-
profitable." Id. at 687. The Court further determined
that, as "applied to lessors, bailers, or secured credi-
tors who are innocent of any wrongdoing," those
statutes "may have [had] the desirable effect of induc-
ing them to exercise greater care in transferring
possession of their property." Id. at 688.
While reaffirming its prior decisions, the Court in
Calero-Toledo stated that the "broad sweep" of forfei-
ture statutes could "give rise to serious constitu-
tional questions" with respect to two categories of
owners: 

It * * * has been implied that it would be
difficult to reject the constitutional claim of an
owner whose property subjected to forfeiture had
been taken from him without his privity or con-
sent. Similarly, the same might be said of an
owner who proved not only that he was uninvolved
in and unaware of the wrongful activity, but also
that he had done all that reasonably could be
expected to prevent the proscribed use of his
property[.]

Calero-Toledo, 416 U.S. at 689 (citations omitted).
The Court found it unnecessary to decide whether the
Constitution precluded forfeiture in those two situa-
tions, because the yacht company "voluntarily en-
trusted the lessees with possession of the yacht, and
no allegation ha[d] been made or proof offered that the
[yacht] company did all that it reasonably could to
avoid having its property put to an unlawful use." Id.
at 690; see also Austin v. United States, 113 S. Ct.
2801, 2809 & n.10 (1993) (reserving question whether
due process principles would bar punitive forfeiture of
property "when the owner had done all that reason-

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11

ably could be expected to prevent the unlawful use of
his property''). 1.
2. The "all reasonable steps" standard suggested
in Calero-Toledo has been widely accepted as a con-
stitutional limit on statutory forfeitures. The lower
federal courts have generally held that it provides the
constitutional limit on civil forfeiture of property
that has been used in violation of federal statutes. 2.

___________________(footnotes)

1 Petitioner contends that the analysis of this Court's prec-
edents in Austin provides "a historical basis for the due process
principle implicitly recognized in" Calero-Toledo. Pet. Br. 19.
Austin's reservation of the due process issue, however,
indicates that the Court viewed its precedents as inconclusive.
In fact, before Calero-Toledo, those precedents had reserved
only the narrow question whether property could be forfeited
if it was taken without the owner's consent and then put to an
unlawful use.  See Van Oster, 272 U.S. at 467 ("It is
unnecessary for us to inquire whether the police power of the
state extends to the confiscation of the property of innocent
persons appropriated and used by the law breaker without the
owner's consent."); Goldsmith-Grant Co., 254 U.S. at 512
(reserving "opinion as to whether the [statute in question] can
be extended to property stolen from the owner or otherwise
taken from him without his privity or consent"). Petitioner
also errs in claiming support for an innocent owner defense in
Austin's holding that the Eighth Amendment's Excessive
Fines Clause applies to civil forfeiture under 21 U.S.C. 881(a).
Pet. Br. 18 n.12. Contrary to petitioner's suggestion, the Court
did not adopt a specific test of proportionality for all civil
forfeitures that "presupposes" a culpable owner (ibid.). Indeed,
the Court explicitly declined to formulate a constitutional
standard for proportionality that depended on that or any
other factor. 113 S. Ct. at 2812 & n.15.
2 See United States v. $69,292 in U.S. Currency, No. 93-
56545 (9th Cir. Aug. 7, 1995), slip op. 3; United States v. One
1976 Cessna Model 210L Aircraft, 890 F.2d 77, 80-82 (8th Cir.
1989); United States v. 1966 Beechcraft Aircraft, 777 F.2d 947,

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12

Courts have also relied on the standard to interpret
the scope of statutory innocent owner defenses. 3. In a
similar vein, the federal government has incorporated
the "all reasonable steps" standard into regulations
governing the remission and mitigation of forfei-
tures. 4. And some state courts have construed their
forfeiture statutes to protect claimants who meet the
"all reasonable steps'' standard. See, e.g., Threlkeld v.
State, 586 So. 2d 756, 759 (Miss. 1991) (construing
state forfeiture statute to avoid violation of state con-
stitution's due process guarantee); State v. 1979
Pontiac Trans Am, 487 A.2d 722, 726-727 (N. J. 1985)
(construing state statute to avoid violation of Four-
teenth Amendment Due Process Clause); see also
N. J. Stat. Ann.  2C:64-5(b) (West Supp. 1995) (codify-
ing "all reasonable steps" standard).
In our view, "the "all reasonable steps" standard
articulated in Calero-Toledo reflects the constitu-
tional limit applicable to some forfeiture statutes, in-
cluding the one at issue in this case. As this Court's
many cases rejecting innocent owner claims demon-
strate, see pp. 7-8, supra, the Constitution does not
bar forfeitures when all that the owner establishes is

___________________(footnotes)

951-952 (4th Cir. 1985); United States v. One 1982 28 Inter-
national Vessel, 741 F.2d 1319, 1322-1323 (11th Cir. 1984);
United States v. One Tintoretto Painting, 691 F.2d 603, 607 (2d
Cir. 1982); United States v. one 1.957 Rockwell Aero Com-
mander 680 Aircraft, 671 F.2d 414, 418 (10th Cir. 1982); United
States v. $6,700 in" U.S. Currency, 615 F.2d 1,3 (1st Cir. 1980).

3 See United Slates v. 141st Street Corp., 911 F.2d 870, 877
(2d Cir. 1990), cert. denied, 498 U.S. 1109 (1991]; United States
v. One 1980 Bertram 58 Motor Yacht, 876 F.2d 884, 888 (11th
Cir. 1989).

4 See 28 C.F.R. 9.5(b)(5); see also Calero-Toledo, 416 U.S. at
689 n.27.

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13

lack of knowledge, or reason to know, of the illegal
conduct that caused the forfeiture, and lack of partici-
pation in that conduct. As Calero-Toledo reaffirmed,
when an owner can do no more than demonstrate
those conditions, forfeiture statutes serve "legiti-
mate governmental interests," 416 U.S. at 688, be-
cause they give property owners an incentive to take
affirmative steps to detect and prevent the illegal use
of their property, and they eliminate the need for
judicial inquiry into the possibility that the alleged
innocent owner is in collusion with the person
making illegal use of the property. Those traditional
justifications for rejecting "innocent owner" claims
reflect the heavy burden that is permissibly placed on
the property owner to prevent, if reasonably possible,
the involvement of his property in illegal activity.
In contrast, when an owner pleads and proves that
he took all reasonable steps to prevent the involve-
ment of his property in the illegal conduct underlying
the forfeiture, the balance of interests is different.
An owner who "ha[s] done all that reasonably could be
expected to prevent the proscribed use of his prop-
erty," Calero-Toledo, 416 U.S. at 689, has, by defini-
tion, minimized the foreseeable risk of illegal use and,
in turn, the risk of forfeiture. Once the owner has
minimized the risk of forfeiture by taking all rea-
sonable precautions, he is generally unlikely to take
additional, "ultrareasonable" steps to eliminate the
residual risk. Moreover, an owner who can prove that
he took all reasonable, affirmative measures to pre-
vent unlawful use is far less likely to be in collusion
with the person who uses the property illegally than
is an owner who merely asserts lack of knowledge or
participation in the illegal use.

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14

In light of those considerations, we believe that the
Calero-Toledo Court correctly suggested that the
"legitimate governmental interests" traditionally
served by forfeiture statutes would not be furthered
as applied to owners who took all reasonable steps to
prevent the illegal use, and that the deprivation of
such owners' property interests might be regarded as
"unduly oppressive." Calero-Toledo, 416 U.S. at 688,
690. Due process principles have long afforded pro-
tection from punitive government action against es-
sentially blameless individuals who did all that could
reasonably be expected under the circumstances. As
long ago as Peisch v. Ware, 8 U.S. (4 Cranch) 347,363
(1808), Chief Justice Marshall wrote that "a forfeiture
can only be applied to those cases in which the means
that are prescribed for the prevention of a forfeiture
may be employed." In Southwestern Telegraph &
Telephone Co. v. Danaher, 238 U.S. 482, 490-491
(1915), the Court invalidated a penalty against a tele-
phone company under the Due Process Clause of the
Fourteenth Amendment because it was "plainly
arbitrary and oppressive" in light of the telephone
company's innocent conduct, which involved "no in-
tentional wrongdoing no departure from any pre-
scribed or known standard of action, and no reckless
conduct." See TXO Production Corp. v. Alliance
Resources Corp., 113 S. Ct. 2711, 2718 n.17 (1993)
(plurality opinion) (noting substantive due process
limits on penalties and observing that Danaher had
"emphasized the fact that the Company was punished
for conduct that had been undertaken in complete
good faith"); id. at 2731 (O'Connor, J., dissenting)
(quoting Danaher). And in a related context, this
Court has upheld strict, vicarious criminal liability

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15

for a corporate officer based on his company's con-
duct, provided that the defendant was not "'powerless'
to prevent or correct the violation." United States v.
Park, 421 U.S. 658, 673 (1975). 5.
There are, of course, many different types of forfei-
ture statutes. Whether a constitutional "innocent
owner" defense may be asserted will vary depending
on the particular governmental interests the statute
serves and the nature of the property that is affected.
See pp. 16-21, infra. But in some cases, a property
owner who makes the showing that he took "all rea-
sonable steps" to prevent the illegal use will have es-
tablished a constitutional defense to the forfeiture of
his property. 6.

__________________(footnotes)

5 The Court in Calero-Toledo supported the "all reasonable
steps" standard primarily by referring to the early common
law history that "sought to mitigate the harshness of felony and
deodand forfeitures" and the "ameliorative policy" both in
England and in this country "of providing administrative re-
missions and mitigations of statutory forfeitures in most cases
where the violations are incurred `without willful negligence'
or an intent to commit the offense." 416 U.S. at 689 n.27. That
history does not appear to establish the specific contours of any
right possessed by innocent owners; at most, it indicates a gen-
eral concern to provide some mechanism to alleviate harsh for-
feitures imposed on "innocent owners" in some instances. Not-
withstanding its lack of a clearcut historical pedigree, we be-
lieve that the "all reasonable steps" standard rests on values
traditionally recognized in due process analysis, accords with
this Court's prior decisions, and respects the interests of pri-
vate property owners, while accommodating governmental in-
terests underlying forfeiture statutes.

6 petitioner invokes both the doctrine of substantive due
process and the Just Compensation Clause of the Fifth
Amendment, as applied to States under the Fourteenth
Amendment (see, e.g., Dolan v. City of Tigard, 114 S. Ct. 2309,

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16

B. The "All Reasonable Steps" Standard Does
Not Apply To All Forfeitures Or AU Claimants
This case involves only one type of forfeiture and
one type of claimant. While we believe that the "all
reasonable steps" standard is applicable in this case,
the availability and nature of any constitutionally
required innocent owner defense in other settings
raises different issues and requires a different
analysis. The Court need not address those issues in
this case.
1. This case involves the punitive forfeiture of
non-contraband based on its use for a vice offense. It
is important, first, to clarify the nature of the prop-
erty at issue and the nature and purpose of the
statute under which it was forfeited.
It appears that, as applied in this case, the Michigan
abatement statute serves, to a significant extent,

___________________(footnotes)               

2316 (1994)). See Pet. i. Analysis under the Just Compensation
Clause, however, does not appear to add anything to the consti-
tutional analysis in this context.  In discussing this Court's
precedents addressing innocent owner claims, the Court in
Calero-Toledo did not distinguish the application of just
compensation principles  from substantive due process
principles. For example, in Goldsmith-Grant Co., the Court
had considered whether the forfeiture of the owner's property
violated "the due process of law required by the Constitution."
254 U.S. at 510. In Calero-Toledo, however, the Court stated
that Goldsmith-Grant Co. had "held that the federal tax-fraud
forfeiture statute did not deprive an innocent owner of his
property in violation of the Fifth Amendment." 416 U.S. at
685. And the Calero-Toledo Court characterized the due pro-
cess claim at issue in Van Oster, 272 U.S. at 466, as simply a
"Fourteenth Amendment attack." 416 U.S. at 686. Elsewhere,
the Court in Calero-Toledo referred simply to the "constitu-
tionality" of the forfeiture of the property of innocent owners.
See id. at 669, 680, 688, 689.

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17

punitive purposes. The Michigan statute does not
merely remedy the illegal use of vehicles by enjoining
such use, while leaving title in the vehicles' owners;
instead, it requires the vehicles to be sold. 7. While the
requirement of sale to compensate the State for the
costs associated with illegal conduct might in other
contexts support a remedial characterization of the
law, here, the State has emphasized the punitive aim
of the abatement of the Bennises' car. The State has
explained: "Confiscation of an automobile in the
context that defendant's car was seized * * * is
swift and certain `punishment' of the voluntary vice
consumer.  Recidivism is practically nil, and the
deterrence value is great." Resp. Mich. Sup. Ct. Br.
22 (quoted at Pet. Br. 20-21 ). 8.
Under those circumstances, the forfeiture of
vehicles under the statute, though characterized as
the "abatement" of a "nuisance," does not appear to
fall within the "long line of this Court's cases sus-
taining against Due Process and Takings Clause
challenges the State's use of its `police powers' to

___________________(footnotes)

7 Whereas vehicles and other chattels are to be sold when
they are declared a nuisance, "buildings and places)' are to be
"effectually clos[ed]" for up to one year when they are de-
clared a nuisance. Mich. Comp. Laws Ann.  600.3825(1) (West
1987). The Michigan courts have rejected the argument that
the closing of buildings and places under the abatement statute
is punitive rather than remedial. State ex rel. Macomb County
Prosecuting Attorney v. Mesk, 333 N.W.2d 184, 191 n.4 (Mich.
Ct. App. 1983); State ex rel. Cahalan v. Bernstein, 226 N.W.2d
56, 59 (Mich. Ct. App. 1974).

8 This case thus does not require the Court to consider
how to determine, in the absence of such explicit state-
ments, whether a particular forfeiture provision is punitive or
remedial.

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18

enjoin a property owner from activities akin to pub-
lic nuisances."  Lucas v. South Carolina Coastal
Council, 112 S. Ct. 2886, 2897 (1992); see, e.g., Gros-
field v. United States, 276 U.S. 494 (1928) (affirming
decree entered under the National Prohibition Act
"padlocking" premises used by tenant, without les-
sor's knowledge, for a still); see also United States v.
Boynton, 297 F  261, 266-268 (E.D. Mich. 1924); cf.
Sweet v. Rechel, 159 U.S. 380, 399 (1895); Mugler v.
Kansas, 123 U.S. 623, 669 (1887). The abatement of
such nuisances does not implicate an innocent owner
defense, in our view.
Nor would an innocent owner defense necessarily
be available to defeat other types of forfeitures, such
as the forfeiture of contraband, "the possession of
which, without more, constitutes a crime," One 1958
Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699
(1965), or the forfeiture of property specially adapted
for illegal use by, for example, being equipped with
secret compartments, cf., e.g., United States v. One
1983 Homemade Vessel Named "Barracuda," 858
F.2d 643 (11th Cir. 1988) (upholding forfeiture of boat
with secret compartments under 19 U.S.C. 1703(a),
which authorizes forfeiture of vessels "fitted out" for
purpose of violating customs laws).  See United
States v. Jeffers, 342 U.S. 48, 54 (1951); see also
United States v. One Assortment of 89 Firearms, 465
U.S. 354, 364 (1984); One Lot Emerald Cut Stones v.
United States, 409 U.S. 232,237 (1972) (per curiam).
Finally, the State has not suggested that the
forfeiture of vehicles under the circumstances of this
case is justified by an overriding governmental need.
There may be offenses that are so serious, and so
closely connected with a certain type of property, that

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19

forfeiture would be justified even if the owner met the
"all reasonable steps" standard. As this Court said in
Van Oster, "certain uses of property may be regarded
as so undesirable that the owner surrenders his
control [over the property] at his peril." 272 U.S. at
467. The Court cited, as an example, laws that hold
car owners civilly liable "for the negligent operation
by those entrusted with their use." Ibid. Under such
laws, it does not matter whether the owner took all
reasonable precautions to prevent the negligence.
See 7A Am. Jur. 2d Automobiles & Highway Traffic
668, at 900-901 (1980). Nonetheless, the Court in
Van Oster took it for granted that such laws are
constitutional. See 272 U.S. at 467; see also Young v.
Masci, 289 U.S. 253, 257 (1933). The imposition of
strict vicarious civil liability under such laws is
justified by, inter alia, the amount of injury and death
due to careless driving. Similar considerations could
lead a legislature reasonably to conclude that a
specific illegal use of a specific type of property-for
example, the use of rental vehicles to transport ex-
plosive devices-had produced such serious law en-
forcement problems that all vehicles so used should be
forfeited regardless of whether a rental agency could,
in a particular case, show that it had taken all reason-
able precautions to prevent the illegal use. Forfei-
ture in that situation might be warranted to encour-
age extraordinary precautions against a particularly
harmful illegal use. Cf. New York Central R.R. v.
White, 243 U.S. 188,201-204 (1917).
2. This case does not involve a claimant to whom
knowledge of, or involvement in, the illegal activity
is sought to be imputed under traditional principles
of vicarious liability. This case, like Calero-Toledo,

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20

involves a claimant who was "uninvolved in and un-
aware of the wrongful activity" that led to the forfei-
ture. 416 U.S. at 689. Knowledge of and involvement
in wrongful activity may be imputed to a claimant
under traditional principles of vicarious liability, but
those principles are not at issue here.
The Court has indicated that traditional principles
of vicarious liability will support civil punitive dam-
ages. In Pacific Mutual Life Ins. Co. v. Haslip, 499
U.S. 1 (1991), the Court rejected a substantive due
process challenge to a state common law rule author-
izing punitive damages against corporations for the
fraud of employees acting within the scope of employ-
ment. Id. at 14-15. In support of that ruling, the
Court cited American Society of Mechanical Engi-
neers, Inc. v. Hydrolevel Corp., 456 U.S. 556 (1982),
which permitted the imposition on an organization of
treble damages for antitrust violations based on the
apparent authority of an agent to act for the
organization. See id. at 574-576.
Forfeitures may similarly rest on theories of
"vicarious liability."  Austin, 113 S. Ct. at 2810.
Agency principles have been applied by the lower
courts in civil forfeiture cases.  For example, in
United States v. One Parcel of Land Located at 7326
Highway 45 North, 965 F.2d 311 (7th Cir. 1992), the
court acknowledged that a corporation's innocent
owner defense should be rejected if the knowledge of
one of its principal officers could be imputed to the
corporation under traditional agency principles. Id.
at 316-319.  (The court held that the officer's
knowledge was not imputable in that case, however,
because he did not gain it while acting for the benefit
of the corporation. Id. at 317.) In United States v.

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21

141st Street Corp., 911 F.2d 870 (2d Cir. 1990), cert.
denied, 498 U.S. 1109 (1991), the court sustained the
forfeiture of an apartment house overrun by drug
dealers, holding that the corporate owner was
chargeable with the knowledge of the superintendent
of the building. Id. at 876. See also United States v.
One Parcel of Real Estate, 852 F. Supp. 1013, 1039
(S. D. Fla. 1994); United States v. One Parcel of Real
Estate Consisting of Approximately 4,657 Acres, 730
F. Supp. 423,426-428 (S.D. Fla. 1989).
Respondent has not argued that traditional princi-
ples of vicarious liability provide a basis for holding
petitioner knowledgeable of, or responsible for, Mr.
Bennis's conduct. There is, to our knowledge, no
common law tradition that would support the imposi-
tion of punitive liability on a spouse based solely on
the actions of a partner. Nor has respondent argued
that liability may be premised on the "family purpose
doctrine" 9. or any other joint enterprise theory. 10.
Accordingly, this case does not require the Court to
determine when traditional principles of vicarious
liability and imputed knowledge may defeat an inno-
cent owner claim. 11.

___________________(footnotes)

9 See W. Presser, Handbook of the Law of Torts 73, at 483-
485 (4th ed. 1971).

10 Cf. United States v. One 1986 Chevrolet Monte Carlo, 817
F. Supp. 729, 730-734 (N.D. 111. 1993).

11 We also note that this case does not involve a claimant who
acquired an interest in the property after the illegal conduct
that caused the forfeiture. The "all reasonable steps" standard
would have a different application in that setting. A person
who acquires property after the illegal act usually could not
have exercised any power to prevent the act from occurring.
Nevertheless, the person can be expected to exercise care to
avoid acquiring "tainted" property that has been used for an

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22

C. Petitioner Has Not Satisfied The "All Reason-
able Steps" Standard

1. Petitioner bore the burden of pleading and
proving that she took all reasonable steps to prevent
the illegal use of her property. 12. This Court made
clear in Calero-Toledo that, to the extent that the
Constitution requires recognition of an innocent
owner defense, the owner must bear the burden of
pleading and proving it. Thus, the Court found it
unnecessary to determine whether the Constitution
affords such a defense in Calero-Toledo only because
"no allegation ha[d] been made or proof offered that
the [yacht] company did all that it reasonably could to
avoid having its property put to an unlawful use." 416
U.S. at 690. The Court gave no indication that the
Constitution required the government to carry any
burden of proof on that issue.
Petitioner recognizes that Calero-Toledo supports
imposing the burden of proving innocent owner status
on claimants in in rem forfeiture proceedings. Pet.
Br. 39. She also recognizes (id. at 45 n.25) that the
Puerto Rico statute at issue in Calero-Toledo was
modeled on a federal statute that is governed by the
customs procedures set out in 19 U.S.C. 1615, see 416

___________________(footnotes)

illegal purpose that subjects it to forfeiture. A person who fails
to take reasonable steps under the circumstances to determine
the provenance of what he is acquiring may fail to qualify as an
"innocent" owner for constitutional purposes.

12 Petitioner did not argue in the courts below or in her peti-
tion for a writ of certiorari that the State bore the burden of
proof on the innocent owner issue. Moreover, it is not clear
that the burden-of-proof issue is fairly included within the
questions presented in her petition. We address the issue in the
event the Court determines that it should be resolved.

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23

U.S. at 686 n.25, 689 n.27, and that Section 1615 places
the burden of proof on claimants in forfeiture pro-
ceedings with respect to all issues except the show-
ing of probable cause to institute the proceeding.
Every federal court of appeals to consider the issue
has rejected constitutional challenges to Section
1615's allocation of the burden of proving innocent
owner status to the claimant. 13.
Petitioner nonetheless contends that Calero-
Toledo's determination that the burden of proof rests
on the claimant is inapposite here. She notes that,
whereas Calero-Toledo involved a proceeding in rem,
this is a proceeding in personam. Pet. Br. 45 n.25.
Petitioner fails, however, to explain why that mat-
ters. The order declaring the Bennises' vehicle a nui-
sance and requiring its sale could have been entered
in a proceeding in rem. See C.J. Hendry Co. v.
Moore, 318 U.S. 133, 140 (1943). Petitioner does not
contend that the in personam character of the
proceeding gave it collateral consequences that would
not have flowed from an in rem proceeding.
Petitioner also asserts that abatement proceedings
are "quasi-criminal," Pet. Br. 43, based on respon-
dent's acknowledgement that they serve punitive and
deterrent purposes. Proceedings under the Puerto
Rico statute at issue in Calero-Toledo, however, were

___________________(footnotes)

13 See United States v. 228 Acres of Land & Dwelling, 916
F.2d 808,814 (2d Cir. 1990), cert. denied, 498 U.S. 1091 (1991);
United States v. Santoro, 866 F.2d 1538, 1544 (4th Cir. 1989);
United States v. $250,000 in U.S. Currency, 808 F.2d 895, 900 &
n.17 (1st Cir. 1987) (citing cases); United States v. $2,500 in
U.S. Currency, 689 F.2d 10, 12-16 (2d Cir. 1982), cert. denied,
465 U.S. 1099 (1984); United States v. One 1970 Pontiac GTO,
529 F.2d 65, 66 (9th Cir. 1976) (per curiam).

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24

also said to serve punitive and deterrent purposes.
See 416 U.S. at 686. Moreover, petitioner's charac-
terization of the present proceeding is at odds with
this Court's consistent refusal to hold that civil
forfeiture proceedings are "subject to the procedural
rules governing criminal prosecutions."  One Lot
Emerald Cut Stones, 409 U.S. at 237 (quoting Helver
ing v. Mitchell, 303 U.S. 391, 400 (1938)); see Austin,
113 S. Ct. at 2804 n.4. Finally, even if abatement pro-
ceedings were criminal in nature, that characteristic
would not forbid the State from allocating the burden
of proof to petitioner on her innocent owner defense.
See Martin v. Ohio, 480 US. 228 (1987) (defendant in
criminal case may be required to establish affirmative
defenses such as self-defense). 14.
Petitioner's reliance (Pet. Br. 44) on this Court's
"recent takings jurisprudence" is misplaced. Peti-
tioner argues that, under Lucas v. South Carolina
Coastal Council, 112 S. Ct. 2886 (1992), and Dolan v.
City of Tigard, 114 S. Ct. 2309 (1994), the forfeiture of
property that has been used illegally is presumptively
a "taking" for which just compensation is due, and
that the State must rebut that presumption by
proving her culpability. The presumption, however, is

___________________(footnotes)

14 Although it is unnecessary to apply the three-factor test
of Mathews v. Eldridge, 424 U.S. 319 (1976), se advocated by
petitioner, Pet. Br. 39-44, that test does not assist her. It would
require no extended analysis to conclude that a putative inno-
cent owner may fairly be required to establish that he took the
steps that qualify him for that status. "It is * * * entirely
sensible to burden the party more likely to have information
relevant to the facts * * * to demonstrate th[ose] facts
* * * Such was the rule at common law." Concrete Pipe &
Products of California, Inc. v. Construction Laborers Pension
Trust, 113 S. Ct. 2264,2281 (1993).

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25

to the contrary: "[I]t is settled that if the * * *
government's actions comport, procedurally and sub-
stantively, with the terms of a lawfully enacted for-
feiture statute, it may seize private property without
compensating the owner."  United States v. One
Parcel of Property with Bldgs., Appurtenances, &
Improvements, 960 F.2d 200, 210 (1st Cir. 1992);
see also Redford v. United States Department of
Treasury, 691 F.2d 471, 473 (lOth Cir. 1982). Nothing
in Lucas or Dolan, neither of which involved a for-
feiture of property that had been used illegally, casts
doubt on that principle.
2. Petitioner did not allege or prove that she took
all reasonable steps to prevent illegal use of the car.
In her answer to the abatement complaint and at trial,
petitioner claimed only that she lacked actual
knowledge that her husband would use the car
illegally. See p. 3, supra. She did not allege or prove
that she lacked reason to know that her husband
would use their car illegally. 15.  Nor did she allege or

___________________(footnotes)

15 Even now, petitioner does not claim that she lacked reason
to know of the illegal use. Instead, she asserts that there is no
"evidence in the record from which it could be inferred that
Tina Bennis `should [have] know[n]' that John Bennis was
`likely to use the [car]' in the manner the trial court found him
to have used it."  Pet. Br. 27. To the contrary, such an
inference arguably could be drawn from the security guard's
testimony that he had seen Mr. Bennis soliciting prostitutes in
the neighborhood of the arrest on two prior occasions. J.A. 52-
53. That testimony suggests a pattern of behavior, of which it
would be more reasonable to expect a spouse to know than a
single instance of behavior. In any event, the State was not
required to establish that Mr. Bennis's behavior was such that
petitioner had reason to know; rather, it was petitioner's
burden to establish innocent owner staus. See pp. 22-25, supra.

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prove that she took all reasonable steps to prevent
such use. She is therefore in precisely the same
position as the yacht company in Calero-Toledo.
Under Calero-Toledo, the forfeiture of petitioner's 
interest in the car must be sustained.

D. The Court Should Reject The Innocent Owner
Standard That Petitioner Proposes

Although petitioner appears at times to support the
Calero-Toledo standard, see Pet. Br. 14-18, she in
fact proposes a significantly more generous test for
innocent ownership. Rather than adopting Calero-
Toledo's suggestion that the owner take "all reason-
able steps" to prevent the unlawful use of his prop-
erty, petitioner suggests that it is enough if the
owner exercises reasonable care at one step: when
entrusting the property to another. Id. at 24-27. In
the alternative, she argues that under any standard of
care, she could not reasonably be expected to have
taken any steps to prevent the illegal use of her car,
because she neither knew nor should have known
about her husband's illegal conduct.  Id. at 27-29.
Neither argument is persuasive.
1. The Court in Calero-Toledo reaffirmed that the
government may subject property to forfeiture to
ensure that the owner takes steps to prevent its
illegal use. 416 U.S. at 688. The Court did not sug-
gest, however, that such steps are limited to exercis-
ing care in entrusting the property to another. In
particular, there is no suggestion that the yacht
owner acted negligently in entrusting the yacht to
the lessees. In fact, the forfeiture rested on the dis-
covery of marijuana on board the yacht more than a
year after the lessee took possession, id. at 665-666.

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Nor does logic support the "negligent entrust-
ment" limitation urged by petitioner. It would make
no sense, for example, to conclude that the yacht
company in Calero-Toledo would have been con-
stitutionally entitled to the return of its yacht if it
had taken all reasonable steps to prevent unlawful
conduct before transferring possession-even if, after
transferring possession of the yacht, it gained knowl-
edge that the lessor was keeping illegal drugs on
board but did nothing in light of that knowledge. It is
common for property owners to take steps after they
transfer their property to make sure that the trans-
feree is using the property in accordance with the
conditions of the transfer. It is therefore reasonable
for the forfeiture laws to encourage the owner to take
reasonable steps after property has been transferred
to prevent unlawful use.
Petitioner argues that she lacked the ability to
control her husband's use of the car because, as a
joint owner, he had the "right" to use it without her
consent. Pet. Br. 27. The yacht company in Calero-
Toledo could have made a similar argument.  Al-
though the company "included in the lease a prohibi-
tion against use of the yacht for an unlawful project,"
Calero-Toledo, 416 U.S. at 693 (Douglas, J., dissent-
ing in part), after the lessee came into possession it
presumably did not need the company's consent to use
the yacht. Calero-Toledo illustrates that there are
many situations, besides joint ownership, in which
the person who causes the forfeiture does not need
the owner's additional permission to use the property
once it has been "entrusted" to that person.
The same reasoning defeats petitioner's assertion
that "she did not in any meaningful sense have the

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28

legal power to prevent his [illegal] use [of the car]."
Pet. Br. 27, The yacht company in Calero-Toledo
likewise presumably had limited means, as a practical
matter, of preventing the illegal use of its yacht.
Petitioner observes that, unlike the yacht company,
she did not have "a commercial relationship" with the
person who used the property illegally. Id. at 28. The
absence of a commercial relationship, however, does
not necessarily mean a lack of control. Indeed, an
owner who has a personal relationship with the
person who used the property illegally may be in a
better position to prevent that use than an owner who
has only a commercial relationship with the other
person, and who relinquishes possession of the
property. See, e.g., United States v. One 1973 Buick
Riviera Automobile, 560 F.2d 897, 901 (8th Cir. 1977)
(per curiam); see also United States v. One 1971
Chevrolet Corvette, 393 F. Supp. 344, 348 (E.D. Pa.
1975).
In sum, there are no doubt differences between peti-
tioner's relationship with Mr. Bennis in regard to
their car and the yacht company's relationship with
the lessee in regard to the yacht. Such differences
may well be relevant in determining what steps the
claimant could reasonably have taken to prevent the
illegal use, since they may affect the claimant's
ability to control the use of the property, But those
differences do not justify a departure in this case
from the "all reasonable steps" standard suggested in
Calero-Toledo.
2. The Court should reject petitioner's argument
that she could not reasonably be expected to have
taken any steps to prevent Mr. Bennis's illegal use of
the car. That argument is based on her assertion

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29

that, "if one has no knowledge or reason to know of
a wrongful use, then one cannot be expected to take
affirmative steps to prevent that use." Pet. Br.28.
Even if an owner lacks reason to know that a trans-
feree will use property illegally (a circumstance that
petitioner has not demonstrated), the owner can rea-
sonably be expected in many cases to take precautions
against illegal use. For example, it is reasonable to
expect a landlord periodically to visit rental property
in a drug-infested neighborhood whether or not he
suspects any tenants of drug use. Cf. 141st Street
Corp., supra. It maybe reasonable to expect the own-
ers of boats and airplanes to check the backgrounds
and monitor the activities of lessors, especially in
drug-smuggling areas. See 1966 Beechcraft Aircraft,
777 F.2d at 951; United States v. One Blue Lobster
Vessel Named Tony, Jr., 639 F. Supp. 865, 872 (S.D.
Fla. 1986); United States v. One 1980 Stapleton
Pleasure Vessel Named Threesome, 575 F. Supp. 473,
478 (S.D. Fla. 1983). To cite a third example, financial
organizations may reasonably be expected to use
available computer technology to prevent money-
laundering, even in the absence of individualized
suspicion. See 52 Fed. Reg. 11,437-11,438 (1987).
It may be true in many cases that a spouse who
lacks reason to know that the other spouse will use
jointly owned property illegally cannot reasonably be
expected to take any precautions. But that is not
necessarily true in all cases.  We submit that
innocent owner claims are better resolved by the
flexible standard suggested in Calero-Toledo than by
categorical rules.  A categorical rule for spouses
would fail to take into account the many ways in
which spouses may hold property. And a categorical

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rule for joint owners would fail to take into account
the variety of contexts, in addition to marriage, in
which property may be joint] y owned. "[W]hat one
`reasonably could be expected [to do]' to prevent
criminal use of property is a standard that must be
tailored to individual circumstances." United States
v. One 1976 Lincoln Mark IV, 462 F. Supp. 1383, 1391
(W.D. Pa. 1979) (quoting Calero-Toledo, 416 U.S. at
689).  

CONCLUSION

The judgment of the Michigan Supreme Court
should be affirmed.
Respectfully submitted.

DREW S. DAYS, III
Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

MICHAEL R. DREEBEN
Deputy Solicitor General

RICHARD H. SEAMON
Assistant to the Solicitor General

J. DOUGLAS WILSON
Attorney

SEPTEMBER 1995

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