DRUG RAID RESULTS IN SEIZURE OF FRATERNITY HOUSE

Timothy M. Burke, Manley & Burke

In the early morning hours of February 3, 1997, representatives of the Southeastern Counties of Ohio Narcotics Task Force assisted by the Athens, Ohio Police Department and law enforcement officers from Ohio University raided the Phi Gamma Delta Fraternity House. Seized in the raid were several pounds of marijuana, some hallucinogenic mushrooms, and several dozen pieces of drug paraphernalia, including digital and postal scales, and marijuana pipes. Several students living in the house were cited for misdemeanor violations. At least three members pled guilty to felony drug counts.

[Ohio law permits contraband, including property that may not be in and of itself unlawful but has been used in the furtherance of an unlawful activity, to be seized and sold.]

That, however, was only the beginning of the bad news. Within 72 hours of the raid, a notice of property seizure was served on the president and secretary of the Phi Gamma Delta Chapter. Ohio law (Ohio Revised Code Section 2933.42) permits contraband, including property that may not be in and of itself unlawful but has been used in the furtherance of an unlawful activity, to be seized and sold. The proceeds of the sale are kept by the agencies involved in the seizure to help fund future drug enforcement ac­ tivities. If the facts justify carrying a seizure to its ultimate conclusion, what it can mean is that the seized property, in this case the fraternity house, is lost to its rightful owner. Obviously, the financial consequences can be stunning.

As draconian as this result sounds, it would not be unprecedented. In 1991, drug enforcement officials of the United States government acting under a federal law quite similar to the state statute the Ohio officials are relying upon, seized three fraternity houses at the University of Virginia. Those houses actually had to be bought back from the federal government by the fraternities involved. See Fraternal Law, Number 37, September 1991 and No. 38, November 1991. Kevin Conners, the Columbus attorney defending the house corporation, was previously an Assistant United States Attorney who prosecuted forfeitures for the federal government. He reports that most, if not all, states now have similar forfeiture laws.

The law in Ohio does not result in the automatic forfeiture of the house following the issuance of a notice of seizure. The notice of seizure is simply the first step. The local county prosecutor must decide whether or not to proceed further, and should he make that decision, the chapter house corporation will have the ability to present an “innocent” owner defense to the loss of the house. Ohio law provides “no property shall be forfeited pursuant to this provision if the owner of the property establishes, by a preponderance of the evidence, that the owner neither knew, nor should have known after a reasonable inquiry, that the property was used or likely to be used in a crime.” While this provision appears to run contrary to the American tradition of innocent until proven guilty, it does afford an opportunity to the property owner to save the property.

Like many fraternity and sorority houses across the country, the Phi Gamma Delta house at Ohio University was owned by a separate house corporation. The house is on private land, close to but not on the Ohio University campus. The fact that the state law enforcement agent served the notice of seizure on chapter officers may be indicative of the fact that he failed to understand who the real owner of the house is. A careful analysis by the county prosecutor should convince him that the house corporation could not be expected to have knowledge of all wrongdoings in the house and that knowledge by a chapter officer is not knowledge by the house corporation.

The chapter house corporation will likely be aided in its defense by its ability to document steps that it has taken in an attempt to keep the house drug-free. David Slater, the president of the chapter house corporation, reports that the house corporation has insisted on signed contracts with each of its active members living in the house that included a drug-free provision and secured pledges from the chapter officers to enforce those provisions. In fact, the house corporation has a history that it can point to of having evicted individuals found to be violating these commitments in the past.

[National fraternities, house corporations, and chapter officers must be serious-minded about the obligation to ensure that their houses are drug-free.]

Whether the county prosecutor and the state law enforcement officials are determined to proceed with forfeiture, and if they do, if they can succeed, remains to be seen. Whether the forfeiture action goes forward or not, this case ought to stand as a bright light warning to fraternities and sororities that a chapter house is not a sanctuary immune from the enforcement of drug laws. National fraternities, house corporations, and chapter officers must be serious-minded about the obligation to ensure that their houses are drug-free.

Given the pervasiveness of drugs in our society, it is not realistic to assume that the record will be perfect in that regard. A fraternity house corporation which can point to a clear anti-drug policy and a record of enforcement behind it will best be able to defend itself against a forfeiture.

A clearly and consistently articulated anti-drug message ought to be a part of every fraternity’s risk management policy. Provisions ought to be made in housing contracts permitting a fraternity to discipline and evict a member from the house for violation of fraternity policy, particularly, those with regard to illegal possession, and especially, sale of drugs. If confronted with a violation, a fraternity must have a consistent policy of dealing with violators. Chapter officers cannot avoid known violations of the policies unless they wish to jeopardize not only the well-being of the chapter but ultimately the ownership of the Chapter House itself. The bottom line is that a national fraternity, chapter house corporation, chapter officers and chapter members themselves must understand and accept the obligation to obey drug laws.