THE CASE OF OSCAR'S II

The ruling by the Washington State Court of Appeals in the case of
Oscar's II restaurant sets an important limit on anti-drug laws.
Controlling drugs is important, but not if it means sweeping aside the
Constitution.

The case concerns a business in Seattle's Central Area where patrons
were dealing drugs. Owners Oscar and Barbara McCoy were not dealing
drugs. They had been working with two Seattle Police officers to chase
the drug dealers out. They had been following a drug-abatement plan
that included a lock on the restroom, removing a phone and refusing
entrance to known dealers.

In the mid-1990s, the police were reassigned. Instead of working with
the McCoys, the police sent in undercover agents to buy drugs. The
agents bought drugs several times, making no arrests. In November
1997, the city got a court order, under its drug-abatement law,
telling the McCoys to vacate their property for one year.

The court ruled this an unconstitutional taking of private property
and denial of due process of law under the 5th and 14th Amendments to
the U.S. Constitution. Simply put, the city had no right to shut down
the McCoys' restaurant for an entire year, depriving them of their
livelihoods, merely because some undercover agents had bought drugs
there.

To be sure, the McCoys had a responsibility to try to keep drug
dealing out. But the law, the court said, cannot expect a business to
guarantee its customers' behavior. A business cannot treat its
customers like inmates of the county jail.

And even jails, wrote Judge Marlin Appelwick, "cannot make such
guarantees even with strip searches, body cavity searches, drug
detection dogs, camera surveillance, and guards. It certainly cannot
be presumed possible that the owners of restaurants, bars, department
stores, office buildings, and civic arenas can guarantee that they
will detect every incident of illegal drug activity, let alone prevent
it."

This common-sense ruling is part of the larger issue of property
seizures in drug cases. Congress has just passed legislation narrowing
that authority after stories of outrageous abuse. The war against
drugs, or against any other illegal activity, should never become so
zealous that enforcers lose interest in whether penalties fall on the
actual wrongdoers.