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D.C. Councilmember Harold Brazil thinks he knows a good way to hit drug dealers: Sue ’em.
“Can you spare a quarter?” a woman asks. It’s a common scam: As you fumble for your wallet, an accomplice comes up next to you and pulls out a weapon. “Give me that,” he says to you, pointing to your wallet. You may think fleetingly of pulling a Donna Shalaladrop, roll, and yellbut the block is deserted. So you hand over your hard-earned dollars. If the police catch the suspects in this scam and they’re both drug addicts, they may end up serving a couple of months in jail and court-ordered drug treatment, if convicted. But the dealers who sold them the drugs they robbed you to buy will still be doing a brisk business on the corner. You can complain to your local patrol officer, but there is little else you can do.
Or is there?
At-Large D.C. Councilmember Harold Brazil thinks that you should be able to get back at the dealers. Last month, Brazil introduced the Drug Dealer Liability Act of 2000. The bill would allow the families of drug users, children born exposed to drugs, employers of drug users, drug-treatment providers, or anyone “injured as a result of willful, reckless, or negligent actions of an individual drug user” to sue people who “knowingly participate in an illegal drug market.” Those who brought suit under the bill wouldn’t necessarily have to prove a direct connection between the particular drug user and a particular dealer. They would merely have to show, according to the bill, that the user was within the “target community” of the dealer.
Plaintiffs would also have to demonstrate that the user had taken the same kind of drug the dealer sold and that the accused dealer had “participated in the illegal drug market at any time during the individual drug user’s period of illegal drug use.” Former users could sue their dealers as long as they’d been clean for six months before filing suit and had told police everything they know about the drug trade. Litigants could sue for monetary losses, as well as less tangible harms, such as emotional pain and suffering. On top of that, a jury could award punitive damages.
Attorneys point out that much of the litigation Brazil is proposing in the Drug Dealer Liability Act can already be pursued under current law. However, Brazil’s bill would remove some legal hurdles that now prevent people from doing so. For example, former users who sue their dealers under current law will probably lose, on the argument that they assumed certain risks when they began taking drugs. At best, the dealer will be held only partially liable.
Supporters of the bill believe that it would give users an incentive to get drug treatment and to cooperate with policeas well as making dealers think twice about hawking their wares. But opponents of the bill denounce it as an empty gesture that promises a remedy to victims of drug-related crime that it can’t deliver. Brazil’s office did not return calls seeking comment.
“Drug dealers on the corner are a ragtag lot. If they’re making the equivalent of a McDonald’s salary, I’d be surprised,” notes Capitol Hill resident Jim Myers, who has written about violence in his neighborhood for the Atlantic Monthly. Since 1992, his Capitol Hill community has been the scene of 32 murders, many of them drug-related. “They’re not well-heeled. They’re kids. Maybe they bought a TV for their mom once. It’s crazy to think anyone would recover anything of worth from them.”
At first glance, a law that would allow you to collect damages from a drug dealer seems like the natural creation of a plaintiff’s attorney, which Brazil happens to be. But it is actually the brainchild of Daniel Bent, a former U.S. attorney for Hawaii, who drafted the original in 1993. States began adopting it in earnest in the wake of the 1995 suicide of actor Hugh O’Connor, son of actor Carroll O’Connor, best known for his role as Archie Bunker. O’Connor publicly blamed his son’s death on a 16-year battle with drug addiction. He also pointed the finger at Harry Perzigian, his son’s dealer. Perzigian was convicted of selling cocaine and received a one-year sentence.
In 1996, O’Connor filed a wrongful-death suit against Perzigian, but a judge dismissed it because the statue of limitations had run out. O’Connor’s public crusade against Perzigian, however, boosted the popularity of drug-dealer-liability legislation. Today, 11 states have a form of the law on the books, including Maryland. Last month, the U.S. House of Representatives passed a federal version. The Senate has yet to approve it.
So far, the most successful verdict won under a drug-dealer-liability law was in Michigan, which has had a version of the law on the books since 1994. (Brazil’s bill closely follows Michigan’s.) In 1995, a jury in Detroit awarded $9 million in damages to the siblings of Felicia Brown, an infant who died when her mother, Earline Brown, bashed the baby’s head in with a shoe while high. Earline Brown was convicted of murder. David Richbow and Gwendolyn Clemens were convicted of selling a large enough quantity of drugs that under Michigan’s law, Wayne County Neighborhood Legal Services, which brought the suit against the dealers, were able to presume them responsible for selling drugs to Earline Brown. Since winning the judgment, however, lawyers for Felicia Brown’s estate have collected only about $11,000, according to Wayne County Sheriff’s Department attorney Jimmie Byrd.
Local defense attorneys contend that most drug dealers don’t have $9 million. In fact, they argue that most don’t have much in the way of assets and are basically judgment-proof.
“The high-living drug dealer one sees in Hollywood movies is not the common reality, at least here in the District. Most people charged with drug offenses in Superior Court are found indigent and eligible for court-appointed legal assistance,” said Laura Hankins of the Public Defender Service (PDS) at a recent roundtable discussion on the Drug Dealer Liability Act, which is currently before the D.C. Council’s Judiciary Committee.
And, even if a drug dealer had built up an illicit fortune, it would be hard to get hold of. What could be traced would fall into the government’s handsnot the dealer’s victims. Under civil forfeiture laws, authorities can seize property that is the proceeds of drug dealing or has been used to facilitate drug dealing, such as a car in which drugs have been stashed. Under Brazil’s proposal, plaintiffs could go after only assets that the government didn’t.
Bent, in a paper he wrote on the original law, has argued that many low-level dealers have assets they’ve acquired legally as well as legitimate jobs and wages that can be garnished. But going after a drug dealer’s remaining assets may lead to unforeseen consequences, argues defense attorney Andrew McGuire.
Because of civil forfeiture laws, McGuire says that innocent people whose relatives have faced drug-trafficking charges already have to fight off attempts by the government to take their property. He argues that if litigants can go after assets not linked to drug activity, more innocent people will be wrongly targeted. He says he recently represented an elderly woman who successfully fought off government seizure of her home after her adult children, unbeknownst to her, sold drugs from her house. “These kinds of bills or lawsuits are targeted toward black families in D.C. who own property, where the family may have nothing to do with drug dealing,” McGuire contends.
Even if families of drug users and former crack babies come flocking to their doors, many attorneys doubt that as a practical matter they would bring suits under Brazil’s proposed law, because of the difficulty of collecting a judgment. “My guess is the bill won’t stimulate a flurry of suits. They will be few and far between, because of the lack of finances on the part of some drug dealers,” notes Jack Olender, president of the D.C. Bar Association and one of the city’s leading plaintiff’s attorneys.
But other attorneys aren’t fazed by the challenge of finding defendants with assets. Wayne Cohen, managing partner of Cohen & Cohen and a law professor at George Washington University, points out that Brazil’s proposed law might also allow those harmed by the drug trade to go after business- or landowners (read: potential deep pockets) who knew drug activity was taking place on their property but did nothing about it. “Would I consider bringing a lawsuit under this law? Sure, if the right circumstances came around,” says plaintiff’s attorney Barry Nace of the law firm Paulson & Nace.
Maxine Oliver says she wishes a drug-dealer-liability law had been on the books seven years ago when her son, Michael Oliver, was shot and killed by a drug dealer. “We couldn’t even convict the man who killed him,” she notes. Oliver says that she, along with her son’s wife and two kids, could have used some money to pay for the funeral.
Brazil’s proposal, of course, comes too late for her. Even if it were the law today, Oliver couldn’t file a suit, because more than two years have passed since her son’s death.
Nace argues that suits against drug traffickers in civil court wouldn’t mark the first time that trial lawyers have marched in where politicians feared to tread. “The government wasn’t able to clean up the Dalkon Shield mess, or tobacco, or guns,” he says. “Nothing else seems to work on the drug trade. This may be a start.”
But defense attorneys and civil libertarians see no loftier purpose to Brazil’s bill than political grandstanding. They are particularly alarmed by how the bill would allow those injured by the drug trade to sue alleged dealers without having to prove that the accused was directly responsible for the harms suffered. And the bill also would allow lawsuits to be filed as soon as six months after a defendant has been convictedwhich defense attorneys decry as unfair, given how long the appeals process can take. Their fear is that someone could win a suit against a defendant who might later be acquitted of the original drug charges.
In a letter to Brazil, Mary Jane DeFrank, executive director of the local chapter of the American Civil Liberties Union, denounced the bill as “a piece of sham legislation” that “gives the false appearance of creating a remedy for people injured by the drug trade, while in fact it will accomplish nothing at all. In that respect, enacting this bill would be worse than doing nothing at all.”
“This bill makes it easier to go after people the criminal justice system goes after anyway,” notes the PDS’s Hankins. “If you ask the family of a drug user what they want, they won’t say they want to sue a drug dealer. They’ll say they want treatment for their loved one. Why can’t the city council talk about that?” CP