July 13, 1999

Denver Confiscation Law May Meet its Match

By Jerry Kopel

The ends justifies the means. Right?  Police found a plastic bag of cocaine inside an open bag of charcoal on Denver rental property owned by Douglas Bruce; the bag was adjacent to an apartment inhabited by a the apartment's  handyman's family. So is it justifiable for the Denver City Attorney to seize Douglas Bruce's property?

Mr. Bruce has long been considered an irritant by the Denver City Attorney's office. They have brought numerous lawsuits against him claiming his rental properties are run-down, neglected slums. And they have rarely won. In the current case, the city agrees that Bruce is not guilty of any drug crime. But here was their chance to seize and close a piece of Bruce property using the city's public nuisance law.

This city law is unlike any other in the state of Colorado. There are fewer rights for innocent citizens than even under the state's forfeiture law. This law claims the remedies, such as seizure of property, are "directed at the property involved without regard to ownership, title, or right of possession, and the culpability or innocence of those who hold these rights."  Newspapers with liberal and conservative editorial pages have all blasted this ordinance as an indiscriminate abuse of power.

First thing that comes to mind is the ancient trial by barbarians who, when a rock fell from a mountain and killed someone, would put the rock on trial.

All that's necessary to begin the process is mere suspicion (probable cause) that a crime has been committed, plus an affidavit containing "facts (that) need not be repeated at the hearing." Suspicion can be based on hearsay evidence, even though the same would not allowed in state courts, and "the court shall not consider whether any affirmative defenses may exist."

What's fascinating about this ordinance is that it reduces the sitting judge to the role of a robot. The court must issue a temporary restraining order if there is "probable cause" and the content of that order is determined by the city attorney.

Possibilities include seizing the apartment and its contents, and then closing it or having a receiver appointed to collect rents either under a temporary, or (following a trial) permanent restraining order. The receiver is not liable for paying the mortgage out of the money collected, but gets a nice chunk of money for services rendered. And the ousted owner remains liable for all costs and maintenance to the extent the rent received isn't enough to pay the expenses. 

When I read the ordinance, I immediately thought about Communist China, where the state, after executing someone, sends a bill to the deceased's relatives demanding the cost of the bullet used.

If the court order is to close the property for a specific time, the owner still never gets it back without signing a total release of the city, its employees and agents "for any liability for the seizure, closure and damages to the property." What that means is, "yes, we screwed up, and the roof fell in due to our extreme negligence, but you can't collect damages from us." The city demands immunity even for willful or wanton misconduct by its employees--such as if an employee maliciously destroyed property in his custody.

The ordinance was first supposed to expire after a trial period, but was renewed by Denver City Council on August 1, 1998--after a "sunset" review conducted April 28th, 1998, by the Denver Sunset Review Committee of which I had been chairman since its inception many years ago. When it became apparent to me that no change to the ordinance, except what the city attorney wished to add to make the ordinance even more unfair would be allowed by the committee successful, I resigned from the committee rather than participate in a charade.

Up until now, the city attorney's office has been shrewd in deciding which confiscation cases to take to court. But in trying to take down Bruce, the city attorneys may force an appeal to a higher court that they have thus far successfully avoided.

Douglas Bruce is not my favorite character. We have battled on opposite sides of his various constitutional proposals for years. In my opinion he is unbearably arrogant, egotistical, caustic, and not always accurate in his claims as to what constitutes the facts. But at the same time, I know he is both intelligent and tenacious, two characteristics needed to take this Denver ordinance to the Colorado Supreme Court and have it tossed as a violation of civil rights.  

Retired attorney Jerry Kopel served 22 years in the state legislature as a Democratic representative from Denver; he wrote this article for the Independence Institute, a civil liberties think tank in Golden, http://i2i.org. 

For more on the Denver ordinance, see Dave Kopel's Issue Backgrounder, Denver's Property Confiscation Ordinance. (Independence Institute Research Director Dave Kopel is the son of Jerry Kopel, the author of the above op-ed.)