U.S. v. Bearden, 328 F.3d 1011 (8th Cir. 2003)

"Standing" is one of the most often misused concepts by forfeiture prosecutors today.  By creating confusion, unscrupulous prosecutors often persuade judges to short-circuit the whole Due Process thing and just give the property to the government -- by holding the property owners lack "standing" to defend their property. 

Logically speaking, you cannot lack standing to defend your property.  All that is required for a claimant to have standing to defend a forfeiture case is a colorable ownership or possessory interest. If you say it's your property in your pleadings you have standing.  Later, at trial, the claimant will have to prove "ownership"  in order to get the property back.  There is quite a lot of difference between those two standards, and when courts use the terms "standing" and "ownership" interchangeably, they add to the problem. 

You don't have to prove you own the property before you have a right to a trial on the merits -- including the issue of whether you own the property. 

Too often courts help the government out by granting summary judgment for the government, saying the property owner lacks standing to defend the forfeiture case, when in truth they are making a finding of fact that the claimant doesn't "own" the property. 

Jody Neal Post and I have encountered this "standing" shell game in our consolidated cases U.S. v. Clymore (Clymore III) and U.S. v. Aguirre (Aguirre II).  Both cases are currently pending in the 10th Circuit -- the third time for Clymore, the second time for my clients.  In both cases, the government played a shell game on the standing issue, and the district court judge (the same judge in both cases) rubberstamped it, repeatedly, only to be reversed on appeal.

In Bearden, Chief Judge Loken of the 8th Circuit cuts through the confusion about the difference between "standing" (a preliminary issue) and "ownership" (an issue for the jury) and holds that the district judge erred by granting summary judgment for the government --  because  "ownership" is an issue for the jury.

Bravo!

The Bearden decision can be found on the FEAR website at this link:  http://www.fear.org/opinions/328f3d1011.html

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