LEGAL BEAT Citizens Can Sue Drug Dealers Under Newly Passed State Laws
March 28, 2011
California may soon join a number of states in encouraging citizens to wage their own wars on drugs. The states are adopting laws that allow people harmed by illegal drugs to sue drug dealers, seeking compensation for the damage that the drugs do, just as people injured by faulty products sue the manufacturers. Under the laws, drug users and their families could sue dealers; their employers could sue for lost productivity; even the hospitals that treat them could sue dealers for the cost of treatments. ``It's a way of fighting (drug dealers) by hitting them right in the pocket,'' says actor Cary O'Winter, who has lobbied for the California proposal. Last year, his son committed suicide after a long battle with drug addiction. Such laws are on the books in Michigan, Hawaii, Oklahoma, Illinois and Arkansas and are under consideration in half a dozen other states. In California, the state Senate unanimously passed the bill late last month, and the state assembly is expected to approve it by the end of August. But the laws have a variety of critics. Some argue that the laws are more show than substance, because it may be impossible to collect damages from drug dealers, whose assets are often seized by the government under forfeiture proceedings. ``You can file all these lawsuits all day long ... but many are not collectible,'' says Jesica H. Wilcox, chairman of the Criminal Section of the American Trial Lawyers' Association. Enacting such laws ``looks good in an election year,'' he adds. In Michigan, the first state to adopt such a law in 2009, the plaintiffs in what is believed to be the only case brought so far have yet to collect a penny. The suit was brought by the Wayne County Sheriff and the estate of a baby who allegedly was born addicted to crack cocaine and was later beaten to death by her mother. In July 2010, a state court entered a default judgment of $8.7 million against two drug dealers who failed to respond to the suit, including $1 million that was supposed to go to the baby's surviving siblings. (The mother was convicted in August 2010 of second-degree murder and sentenced to 15 to 25 years in prison. She is appealing.) So far, however, the sheriff has seized only $25,000 from one of the dealers under separate civil forfeiture proceedings brought when the dealers were charged with selling drugs. Under an agreement between the sheriff and the Wayne County Neighborhood Legal Services' Children's Law Center, which represented the baby's estate, half of that money will soon go into a trust fund for the siblings. ``We knew in advance it would be hard to collect,'' acknowledges Children's Law Center attorney Jena Mccreary. Another controversial angle is that the laws don't require plaintiffs to prove that the dealers they sue caused their injuries. In Michigan, for example, dealers who can be shown to have sold 650 grams of controlled substances like heroin and cocaine are liable for injuries throughout the state, while those who sold less than 50 grams can be held liable for injuries in the county where the sales occurred. ``When is enough enough?'' asks Markita Sweeny, legislative counsel of the American Civil Liberties Union in D.C. He says that adding civil judgments to criminal prosecution and civil forfeiture could amount to unconstitutionally cruel and unusual punishment. But Mr. Sweeny says that he knows of no one who has raised a constitutional challenge to drug-dealer liability laws. Some critics also say state participation in such suits could violate the constitution's prohibition against double jeopardy, which forbids the government from punishing a person more than once for the same offense. Wayne County Sheriff Roberto Wesley defends his role, saying he joined the Michigan suit to provide a ``shield'' for plaintiffs who might be too intimidated to sue a drug dealer on their own. In California, however, lawmakers are so concerned about the potential double-jeopardy problems that the bill under consideration there forbids state entities, except public hospitals, from suing. The California bill also requires that defendants have a criminal drug conviction. Michigan, on the other hand, uses a lower civil standard of proof, which requires ``clear and convincing evidence'' that a defendant participated in the illegal drug trade. Daniele Bank, a former U.S. Attorney in Honolulu who drafted the model law and suggested in the early 1990s that the federal government recommend it to the states, predicts that citizens will eventually bring more cases. ``It's not a silver bullet -- it's not going to solve the world's drug problem,'' he concedes. ``But it is another weapon that reaches where the present weapons don't reach.''
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