Civil Asset Forfeiture

[Squatch347]

I was curious if anyone here was willing to take up the Civil Asset Forfeiture defense? AG Holder, to his credit, recently scaled back federal sharing programs that are largely responsible for this program continuing following some pointed questioning by Sen. Mike Lee.

First a quick primer. Forfeiture is when the government confiscates private property.

There are, generally, two types of forfeiture. Criminal and Civil. Often when you hear a defense of the latter, it is really a defense of the former, so the distinction is relevant.

Let’s say that you were to buy a small plot of land and on that land conduct a fraudulent raffle. From the raffle you win $1M. The police catch onto you, arrest you, charge you, you are convicted, and sentenced to say a month in jail. Now of course you don’t get to keep the $1M, that is confiscated (whether it should go to victims rather than police funds could be debated, but it is outside our scope). Usually, you can’t keep the land either, that is confiscated and sold off.

All well and good. Let’s contrast that to the civil practice.

You own a business. You generally get about $9000 in revenue a week from the business which you deposit at a small bank. This number is suspiciously close to the $10,000 amount that triggers reporting requirements (that are quite extensive and costly). The IRS notices the pattern and suspects that you are illegally depositing just under the limit to avoid reporting (a crime if that is the intent). They seize your bank account under that suspicion. In order to get the money back, you have to go to court, and you have to prove to the Court’s satisfaction (a burden above preponderance, but below reasonable doubt) that your actions weren’t illegal.

IE the law enforcement agency suspects you of something, never charges you with a crime, never convicts you, in fact never needs to show any actual probable cause and then, it is your burden to prove you are innocent to get you property back.

That seems at odds with our general judicial philosophy.

I used that example specifically because it happened. And the DA involved was our proposed new AG. http://www.foxnews.com/politics/2015...ag-pick-lynch/


Now of course there are some clear objections based on incentives. That police would seek out cases where this is likely and where contesting is low (a couple of famous examples of around a $1000 each being taken from motorists under drug trafficking suspicion, even when no drugs were found) when the result is an increase to their budget (and is often spent, as unobligated funds on station improvements) seems obvious.

That it fundamentally contradicts American legal tradition and harms people with no legal process is unquestioned.


So I’m curious, does anyone here actually support these laws?

[Sigfried]

I think there is a bit more to it, reading the actual agreement.

1. There was a federal warrant for the seizure of the bank account due to reasonable suspicion that the account was being used to commit a federal crime.

2. The agreement stipulates that one of the reasons the property is being returned is because no criminal suit was brought.

You can read the agreement here, page 2 has the bit about the warrant.
http://ij.org/images/pdf_folder/priv...01-20-2015.pdf

So it is not that the state can out of the blue take your property, it is that if they have a suspicion that property is part of a criminal act, and they can convince the courts that the suspicion is well founded enough for a warrant, they can then claim the property pending criminal prosecution.

If you didn't have such a rule and the state notified you of the criminal charges you could take all the assets and move them out of the reach of the government (or at least much harder for it to reach).

When we break into a drug house on warrant you don't have to convict them before you can confiscate evidence, it would be impractical and an imposition against justice. Mind you if you are found innocent then such property should be returned.

If you seize property in this way I think there should be something of a time limit before charges are brought or the property is returned. It seems to me in this case the state dragged its feet far too long in bringing charges though I don't have a full picture of the timeline.

[Ibelsd]

I think, Constitutionally, we are protected against unreasonable search and seizures. So, the question for the example is not whether evidence was taken, but rather whether taking such evidence was reasonable. I think Sig makes the correct argument that the government, in the example noted, is exercising its right to confiscate evidence. With that said, I'd hope the evidence required for a reasonable seizure (if not search) is much more than merely depositing $9000 a week. On that point we all may agree.

I do think this is a bit different than other government seizures where a crime is either tangential or non-existent. For example, land seizures for government projects where the public good amounts to giving someone's land to another private interest goes well beyond the government's scope IMO. Likewise, taking property used in a crime such as confiscating a car used in the commission of a prostitute seems like nothing more than a thinly veiled money grab. Again, I think these are examples where property seizure goes too far.

[Squatch347]

I know this is a bit long, and I don’t expect anyone to listen to this for the purposes of this debate, but I found the discussion incredibly interesting and informative about this process. I’ll also be referencing some of the points made, but listening shouldn’t be necessary for participation. http://www.cato.org/events/policing-...set-forfeiture



I would also like to make the distinction that I think both Sig and Ibelsd might have missed in my initial post. I’m not talking about simply seizing a property during the initial discovery of the crime. Seizing property in the hypothetical mentioned is part of criminal asset forfeiture law (or perhaps via evidence collection). IE a crime was committed, the property is held while charges are adjudicated and after a conviction the property is forfeited.

Civil asset forfeiture is different. In those examples, the property itself is the defendant, it is immediately forfeited based upon the reasonable suspicion of the officers (sometimes via a warrant, but not always) and that is the end of the legal requirement. The property now belongs to the state. You do have the option to sue the state for return, but without your action the case is over.

Imagine if we replace the situation slightly. Imagine a man is talking to a woman on a street corner, she is dressed provocatively, maybe he even has some money in his hand. Certainly there is reasonable evidence to suspect a crime is about to occur or is occurring. So the cop arrests the man and puts him in jail. /story. The cop never need file charges, present evidence to a judge, or do anything else, whats more he gets credit for an arrest on his performance report. Now the man could file a motion for release and then be required to prove (not just present a compelling explanation, but prove) that this was not what it looked like, but that is expensive, can take years, ruining his life in the process.

It isn’t that the officer can simply detain the man and woman while he investigates, he simply arrests the parties and is done with it.

I think there is a bit more to it, reading the actual agreement.

Well the program itself is far more expansive than this single case. I would point out that these assets were returned and charges dropped specifically because the attorney involved is now going through the confirmation process. More importantly, this money had been seized and held without a single charge being issued against the owners for two years. The case that led to the return was filed by the owners, rather than the state and, if it had every gone to a final trial, it would have been their burden to prove that no law was broken.

So it is not that the state can out of the blue take your property, it is that if they have a suspicion that property is part of a criminal act, and they can convince the courts that the suspicion is well founded enough for a warrant, they can then claim the property pending criminal prosecution.

This is slightly incorrect. No warrant is needed. In this specific case they obtained a warrant to ensure the bank complied, but that isn’t a requirement. The property can be seized as part of a routine traffic stop for example.

I think it is important to remember that in these cases the property itself is the defendant, not the owner. As odd as that sounds, it is why you see case names like “U.S. v $900,000” and “U.S. v Chevy Corvette.” In that case, many of the protections we normally assume don’t apply.

In the lawsuit titled United States of America v. 434 Main Street, Tewksbury, Massachusetts, the government is suing an inanimate object, the motel Caswell’s father built in 1955. The U.S. Department of Justice intends to seize it, sell it for perhaps $1.5 million and give up to 80 percent of that to the Tewksbury Police Department, whose budget is just $5.5 million. The Caswells have not been charged with, let alone convicted of, a crime.

http://www.washingtonpost.com/opinio...VZU_story.html

Why? Because a small number of patrons of the motel over the last 20 years were arrested for drug related crimes. Not that the owners knew about those crimes, or turned a blind eye, or even had a responsibility to know what was going on in the room. The hotel was used by a couple of drug dealers on a handful of occasions.

Or enroute from an ATM to a bail hearing from a bank:
http://www.huffingtonpost.com/2012/0...n_1522328.html


Or during a traffic stop where the officer noticed large amounts of money in a bag (something that would have been protected against unreasonable search, except the defendant is the money not the person), which had been collected by friends and family to help an immigrant start a new business:

The Eighth Circuit Court of Appeals has ruled that police may keep the $124,700 they seized from Emiliano Gonzolez, an immigrant who by all appearances was attempting to use the money to start a legitimate business.
This is an outrageous ruling. Consider:
• Gonzolez was never charged with any crime in relation to the money, much less convicted.
• Gonzolez has an explanation for the money that a lower court found both “plausible” and “consistent.” He brought several witnesses forward to corroborate his story (in the preposterous land of asset forfeiture, property can be guilty of a crime, and the burden is often on the person the police seized the property from to prove he obtained it legally).
• The government offered no evidence to counter Gonzolez’s explanation.
…
The opinion itself…
• While the claimants’ explanation for these circumstances may be “plausible,” we think it is unlikely. We therefore conclude that the government proved by a preponderance of the evidence that the defendant currency was substantially connected to a narcotics offense.”
My emphasis added on the last point. The absurdity of these cases never fails to amaze when you actually see them in print. The money, not Gonzolez, was found guilty of drug crimes.

http://www.cato.org/blog/another-ass...eiture-outrage

When we break into a drug house on warrant you don't have to convict them before you can confiscate evidence, it would be impractical and an imposition against justice. Mind you if you are found innocent then such property should be returned.

And what if you just never charged anyone with a crime?

It seems to me in this case the state dragged its feet far too long in bringing charges though I don't have a full picture of the timeline.

But the state has no incentive to change the timeline right? Nor is the ball in the state’s court, once seized, it is the burden of the owner to prove the property was not connected to a crime, not the state to prove otherwise.

Constitutionally, we are protected against unreasonable search and seizures.

That is correct, however under civil asset forfeiture these rights have limited application because the defendant is property rather than an individual.

Likewise, taking property used in a crime such as confiscating a car used in the commission of a prostitute seems like nothing more than a thinly veiled money grab.

This being one of the iconic examples. A husband uses his car for prostitution. The car is seized and the wife, clearly not part of the crime, objects saying that at least 50% of the car is hers. But it doesn’t matter, ownership is moot, the question is whether the property was used in the commission of a crime.

[evensaul]

So I’m curious, does anyone here actually support these laws?

As with most laws, overzealous and inappropriate application and enforcement can harm the innocent. But on the whole, these laws have probably done a lot more to put the hurt on criminals than good folks just going about their business.

A few thoughts:

The company intentionally structuring their cash deposits to avoid reporting was violating federal law. By doing so, they brought the problem on themselves. Eventually, they did get their assets back through a settlement. The publicity surrounding the case may convince other honest business owners to deposit cash as they get it, and "show it like it is", depositing more than 10k when that's what they have. Similarly, the IRS prosecutes and publicizes cases where people don't report large amounts of income (typically over 500k) and jails them (typically one year), so that others will report accurately. It serves an overall purpose. Although I haven't read the details, I'd guess the feds had more evidence of wrongdoing that just the structured deposit violation, and decided that pursuing the forfeiture would at least serve as a deterrent even if the case wasn't winnable. If there wasn't anything more than the deposits, then someone approving the seizure should have been fired.

The guy that had $100k+ cash confiscated along with his car probably was carrying drug money, from what I've been able to read about the case and the court's ruling.

The people that own the motel won their case, when the court ruled against the federal government, in what I think was a good ruling. The person who approved that seizure should have been fired.

Legislation is in the works to restrict the use of civil forfeiture laws to prevent abuse and miscarriages of justice. That's probably necessary and good. But I don't think I'd support eliminating them completely.

On a tangential subject: Many municipalities now have traffic cameras that snap photos of cars going through red lights. The owner of the vehicle has to pay a civil fine because the car violated a traffic law, regardless who was actually driving. Do you support such fines?

[Sigfried]

I think Evensaul summed it up fairly well for me. After reading more about these laws, they do concern me and I do think reform is in order. There seem to be some serious cases where they went too far. Apparently these laws have been around a while but use of them has been increasing a lot. Reigning them in while keeping the ability to seize drug money when its pretty clearly drug money makes sense. Trying to take a hotel because people dealt drugs from the rooms does not unless the owner was actively encouraging it.

[MindTrap028]

The laws in question are outrageous and ludicrous. The attempt of the state to accuse property of a crime is an attempt to bypas personal rights. If I have 100million dollars in my trunk, and show it off to a police officer during a traffic stop, it is MY property and protected by search and seizure rights. Acting as though they are accusing the money and leaving me out of it is unconst.
You may as well electrocute my body to a crisp and say you were accusing my body and not may soul of a crime. (or my brain and not my life) So you didn't violate my right to life or a trial.. because you didnt accuse me, you just accused a part of me.
It is an invalid distinction and shouldn't be made no matter how much more it "hurts" criminals more than law abiding citizens.

When the law turns me and my normal activity and beliefs into a criminal ones, I will begin to act like a criminal.


Suppose the state responded to gunshots down a street, so they confiscated all guns as suspects to the crime. Are your second amendment rights being violated? No of course not, your not accused of anything, your gun will be free as soon as it has proven it's innocence even though it doesn't have a court date.

[evensaul]

If I have 100million dollars in my trunk, and show it off to a police officer during a traffic stop, it is MY property and protected by search and seizure rights. Acting as though they are accusing the money and leaving me out of it is unconst.

The Fourth Amendment protects against "unreasonable" seizure. If the police have reason to think the money is proceeds from an illegal drug transaction, or is being transported to make an illegal purchase, the initial seizure of the money would not be considered unreasonable by a court.

When the law turns me and my normal activity and beliefs into...

Is it normal to carry $100M in your trunk? Or even $124,700 in a cooler on your back seat, as the police found in the case Squatch mentioned? Seriously, who carries that much cash other than drug dealers? And further, who carries that much cash and has so much trouble honestly answering simple questions related to the money and his travels? If you're carrying bundles of cash, whether $100M or 100k while traveling suspiciously, expect the money to be seized at least temporarily while you answer some more questions.

Suppose the state responded to gunshots down a street, so they confiscated all guns as suspects to the crime. Are your second amendment rights being violated? No of course not, your not accused of anything, your gun will be free as soon as it has proven it's innocence even though it doesn't have a court date.

That would be an unreasonable seizure because having guns is pretty normal. And because possession of firearms is a protected right, their seizure needs greater evidence of criminal use.

[MindTrap028]

The Fourth Amendment protects against "unreasonable" seizure. If the police have reason to think the money is proceeds from an illegal drug transaction, or is being transported to make an illegal purchase, the initial seizure of the money would not be considered unreasonable by a court.

The state accusing objects of crime and seizing it, is the definition of "unreasonable".
As it makes a ludicrous distinction and denies your rights.

Is it normal to carry $100M in your trunk? Or even $124,700 in a cooler on your back seat, as the police found in the case Squatch mentioned? Seriously, who carries that much cash other than drug dealers? And further, who carries that much cash and has so much trouble honestly answering simple questions related to the money and his travels? If you're carrying bundles of cash, whether $100M or 100k while traveling suspiciously, expect the money to be seized at least temporarily while you answer some more questions.

"normal" is irrelevant.
"legal" is relevant.

Is it legal to carry 100M in your trunk? If the answer is no, then there is no reasonable cause for suspicion.
Just as legal open carrying a gun is not valid justification for suspecting a crime or danger to others.

PS, if I had 100M I would certainly carry a large amount of cash with me.

That would be an unreasonable seizure because having guns is pretty normal. And because possession of firearms is a protected right, their seizure needs greater evidence of criminal use.

Not according to the precedent and logic of civil forfeiture. The guns are being accused of a crime, thus they are sized.
Your not being denied you right to arms by their logic, you are not the subject of the investigation.

[evensaul]

The state accusing objects of crime and seizing it, is the definition of "unreasonable".

That is a not what happens. There is no charge of a criminal act against the object or money. Here is the federal code on forfeitures and associated seizures:

21 U.S. Code § 881 - Forfeitures

(a) Subject property
The following shall be subject to forfeiture to the United States and no property right shall exist in them:
(1) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this subchapter.
(2) All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance or listed chemical in violation of this subchapter.
(3) All property which is used, or intended for use, as a container for property described in paragraph (1), (2), or (9).
(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1), (2), or (9).
(5) All books, records, and research, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this subchapter.
(6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance or listed chemical in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter.
(7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year’s imprisonment.
(8) All controlled substances which have been possessed in violation of this subchapter.
(9) All listed chemicals, all drug manufacturing equipment, all tableting machines, all encapsulating machines, and all gelatin capsules, which have been imported, exported, manufactured, possessed, distributed, dispensed, acquired, or intended to be distributed, dispensed, acquired, imported, or exported, in violation of this subchapter or subchapter II of this chapter.
(10) Any drug paraphernalia (as defined in section 863 of this title).
(11) Any firearm (as defined in section 921 of title 18) used or intended to be used to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1) or (2) and any proceeds traceable to such property.
(b) Seizure procedures
Any property subject to forfeiture to the United States under this section may be seized by the Attorney General in the manner set forth in section 981 (b) of title 18.
... http://www.law.cornell.edu/uscode/text/21/881

Section 981 - Seizures
(b)
(1) Except as provided in section 985, any property subject to forfeiture to the United States under subsection (a) may be seized by the Attorney General and, in the case of property involved in a violation investigated by the Secretary of the Treasury or the United States Postal Service, the property may also be seized by the Secretary of the Treasury or the Postal Service, respectively.
(2) Seizures pursuant to this section shall be made pursuant to a warrant obtained in the same manner as provided for a search warrant under the Federal Rules of Criminal Procedure, except that a seizure may be made without a warrant if—
(A) a complaint for forfeiture has been filed in the United States district court and the court issued an arrest warrant in rem pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims;
(B) there is probable cause to believe that the property is subject to forfeiture and—
(i) the seizure is made pursuant to a lawful arrest or search; or
(ii) another exception to the Fourth Amendment warrant requirement would apply; or
(C) the property was lawfully seized by a State or local law enforcement agency and transferred to a Federal agency.
(3) Notwithstanding the provisions of rule 41(a) of the Federal Rules of Criminal Procedure, a seizure warrant may be issued pursuant to this subsection by a judicial officer in any district in which a forfeiture action against the property may be filed under section 1355 (b) of title 28, and may be executed in any district in which the property is found, or transmitted to the central authority of any foreign state for service in accordance with any treaty or other international agreement. Any motion for the return of property seized under this section shall be filed in the district court in which the seizure warrant was issued or in the district court for the district in which the property was seized.
(4)
(A) If any person is arrested or charged in a foreign country in connection with an offense that would give rise to the forfeiture of property in the United States under this section or under the Controlled Substances Act, the Attorney General may apply to any Federal judge or magistrate judge in the district in which the property is located for an ex parte order restraining the property subject to forfeiture for not more than 30 days, except that the time may be extended for good cause shown at a hearing conducted in the manner provided in rule 43(e) of the Federal Rules of Civil Procedure.
(B) The application for the restraining order shall set forth the nature and circumstances of the foreign charges and the basis for belief that the person arrested or charged has property in the United States that would be subject to forfeiture, and shall contain a statement that the restraining order is needed to preserve the availability of property for such time as is necessary to receive evidence from the foreign country or elsewhere in support of probable cause for the seizure of the property under this subsection.
http://www.law.cornell.edu/uscode/text/18/981

Nowhere in forfeiture and seizure law will you find that objects or money are being charged with a crime. A civil suit, not a criminal charge is being brought against them. The code makes reference to offenses committed by people, not things. The assets seized are related to the criminal act, but are not accused of committing the act.

As it makes a ludicrous distinction and denies your rights.

Could it be that your unfamiliarity with the concept and proceedings only make them seem ludicrous? In reality, civil suits against objects are not a new phenomenon and have been used in this country for a couple hundred years. I make that apparent appeal to tradition not in support of "In rem jurisdiction" cases, but against the idea that they are deserving of ridicule. If our legal scholars and legal system have accepted the theory and allowed it in practice for such a lengthy period, then the idea is hardly ludicrous, no matter how strange you and I may find it. http://en.wikipedia.org/wiki/In_rem_jurisdiction

"normal" is irrelevant.
"legal" is relevant.

Well, you were the one arguing that your "normal activity" should not be considered criminal. Questioning whether your hypothetical was normal activity was a legitimate question. If you want to withdraw the argument, I'm okay with that. If you want to address only what is legal, then you need to explain why "In rem jurisdiction" proceedings should be eliminated.

Is it legal to carry 100M in your trunk? If the answer is no, then there is no reasonable cause for suspicion.

I think you mean "yes", and will continue with that assumption.

Just as legal open carrying a gun is not valid justification for suspecting a crime or danger to others.

Try carrying a couple of your rifles through the Aquarium of the Americas next time you're in New Orleans. Then come back here and tell me what reaction you got from the people around you, not to mention the NOPD. Do you have a legal right to carry openly? Yes. Will it look really suspicious to the other tourists and employees, and get you surrounded by a few police while you're questioned (at a minimum)? You bet it will. Why? Because carrying rifles around in urban public areas isn't normal, and will be viewed very suspiciously. Some kind of response by other people and the authorities should be expected when you do something that unusual.

PS, if I had 100M I would certainly carry a large amount of cash with me.

Maybe a few thousand, but I seriously doubt you'd carry 100k. And if you carried that much and then lied about an arrest record, couldn't name the person that rented your car for you, etc, etc, you would be thought a likely drug dealer. It wouldn't take Sherlock Holmes to figure out what you were up to.

Not according to the precedent and logic of civil forfeiture. The guns are being accused of a crime, thus they are sized.

Support the claim that objects are accused of crimes in normal forfeiture proceedings.

Your not being denied you right to arms by their logic, you are not the subject of the investigation.

Well, given that you created the hypothetical case, I guess you have a right to claim the details of that hypothetical. But your hypothetical details don't match the reality of normal seizure cases.

[MindTrap028]

Nowhere in forfeiture and seizure law will you find that objects or money are being charged with a crime. A civil suit, not a criminal charge is being brought against them. The code makes reference to offenses committed by people, not things. The assets seized are related to the criminal act, but are not accused of committing the act.

Well, none of that sounds like what is actually occurring.
So i guess what is actually occurring is illegal, or you have the wrong code that they are applying.

I do not know.
As to it being charged.. it is seized because it is suspected of being involved in a crime.
No one or thing gets an actual court of law charge. However it is still being "charged" as in blaimed.

Such is my understanding of it.

Could it be that your unfamiliarity with the concept and proceedings only make them seem ludicrous? In reality, civil suits against objects are not a new phenomenon and have been used in this country for a couple hundred years. I make that apparent appeal to tradition not in support of "In rem jurisdiction" cases, but against the idea that they are deserving of ridicule. If our legal scholars and legal system have accepted the theory and allowed it in practice for such a lengthy period, then the idea is hardly ludicrous, no matter how strange you and I may find it.

Crazy has been around for a long time

But it doesn't seem clear in the wiki that the objects are being charged with a crime? It seems more a reference thing.
Which I haven't argued against.

Well, you were the one arguing that your "normal activity" should not be considered criminal. Questioning whether your hypothetical was normal activity was a legitimate question. If you want to withdraw the argument, I'm okay with that. If you want to address only what is legal, then you need to explain why "In rem jurisdiction" proceedings should be eliminated.

The wiki actually makes my point..
from the wiki "This last style is awkward because in law, only a person may be a party to a judicial proceeding "

Soo.. i'm not sure why I would have to explain why it should be eliminated or in what way you think it contradicts my point.

I think you mean "yes", and will continue with that assumption.

Dislexia strikes again!

Try carrying a couple of your rifles through the Aquarium of the Americas next time you're in New Orleans. Then come back here and tell me what reaction you got from the people around you, not to mention the NOPD. Do you have a legal right to carry openly? Yes. Will it look really suspicious to the other tourists and employees, and get you surrounded by a few police while you're questioned (at a minimum)? You bet it will. Why? Because carrying rifles around in urban public areas isn't normal, and will be viewed very suspiciously. Some kind of response by other people and the authorities should be expected when you do something that unusual.

Really? How do the guns get to the gun store then?
Also, I'm pretty sure the Aqarium has a "no guns allowed" sign on it.
Yup http://www.aquariumrestaurants.com/d...ore-you-go.asp

Now, I'm not saying that a police officer will not talk to you, but the can't arrest you and would be liable for lawsuits if their only evidence was "he had a/several guns".

Maybe a few thousand, but I seriously doubt you'd carry 100k. And if you carried that much and then lied about an arrest record, couldn't name the person that rented your car for you, etc, etc, you would be thought a likely drug dealer. It wouldn't take Sherlock Holmes to figure out what you were up to.

From your above "all proceeds traceable to such an exchange, "
The money is accused of being invovled in an illegal exchange.
Basically they are saying "this money was used in an illegal activity" without naming any person or taking any person to court or charging any person with a crime ... specifically the owner of the money.

See above to the distinction of "charged".

Well, given that you created the hypothetical case, I guess you have a right to claim the details of that hypothetical. But your hypothetical details don't match the reality of normal seizure cases.

I would submit that the only acceptable "seizure case" is one where a person is charged with a crime or in the process of being charged.
In cases where no person is charged we should not consider that "normal" and to the extent that it is a regular occurrence is an instance we should hold as being unconst and violating the rights of the actual owners of the items sized.

[evensaul]

Such is my understanding of it.

Your understanding is colored by mis-characterizations. I've supported my understanding. You haven't.

The wiki actually makes my point..
from the wiki "This last style is awkward because in law, only a person may be a party to a judicial proceeding "

So the person who posted that in the wiki is as confused as you are. That doesn't support your position.

Soo.. i'm not sure why I would have to explain why it should be eliminated or in what way you think it contradicts my point.

Well, if you want to claim that the proceedings are "ludicrous" and should not be part of law, you do need to support why, and with more than "Such is my understanding".

Also, I'm pretty sure the Aqarium has a "no guns allowed" sign on it.
Yup http://www.aquariumrestaurants.com/d...ore-you-go.asp

Then walking down Bourbon Street or through Jackson Square, or some other touristy public place.

Now, I'm not saying that a police officer will not talk to you, but the can't arrest you and would be liable for lawsuits if their only evidence was "he had a/several guns".

You're backpedaling pretty fast there, MT. "Can't arrest you" is very different than your earlier claim "...legal open carrying a gun is not valid justification for suspecting a crime or danger to others." Now you seem to agree that it wouldn't be unusual for police to talk to you because you're doing something unusual and represent a possible danger to the public.

From your above "all proceeds traceable to such an exchange, "
The money is accused of being involved in an illegal exchange.
Basically they are saying "this money was used in an illegal activity" without naming any person or taking any person to court or charging any person with a crime ... specifically the owner of the money.

See above to the distinction of "charged".

Still, with all that, the money is not charged with a criminal offense. It may seem just an issue of semantics to you, but I don't think it is. In a civil case the plaintiff needs only "a preponderance of the evidence", much lower than "beyond a reasonable doubt".

I would submit that the only acceptable "seizure case" is one where a person is charged with a crime or in the process of being charged. In cases where no person is charged we should not consider that "normal" and to the extent that it is a regular occurrence is an instance we should hold as being unconst and violating the rights of the actual owners of the items sized.

Let's say you live in the city, instead of your swamp. A property with a house a couple blocks from yours is abandoned by the owner who has moved out of state, though he still pays the property taxes. The weeds grow up, windows get broken, and drug dealers move in. The property is a nuisance to you and other neighbors, and the activities there represent a threat to neighborhood children, including yours. Would you argue that the government cannot seize the property, despite abandonment and continuing criminal activities? If so, then what would you have the city do? Nothing? Keep in mind that if the city cannot do anything at all, the same situation may happen in more houses in your neighborhood and around town, hurting your property value, and possibly causing a continuing downward trend to your neighborhood.

[MindTrap028]

Your understanding is colored by mis-characterizations. I've supported my understanding. You haven't.

The order of events in the news stories offered in this thread and by the op are my support.
You are pointing to how it SHOULD work, not how it IS working in the example cases.

Further your link actually supported my position.. which you then dismiss without reason because it doesn't fit your argument anymore.
If it was valid when you thought it supported you, it is valid in support of mine until you prove otherwise....w ith more than your personal declaration of what does and does not support my position.

So the person who posted that in the wiki is as confused as you are. That doesn't support your position.

Well, as it is your supposed "support" that would be your problem.

Well, if you want to claim that the proceedings are "ludicrous" and should not be part of law, you do need to support why, and with more than "Such is my understanding".

Good thing I offered more than just that then.
I'll let you respond to my actual argument and points.

Then walking down Bourbon Street or through Jackson Square, or some other touristy public place.

And you can, and should be able to under our laws of freedom.

You're backpedaling pretty fast there, MT. "Can't arrest you" is very different than your earlier claim "...legal open carrying a gun is not valid justification for suspecting a crime or danger to others." Now you seem to agree that it wouldn't be unusual for police to talk to you because you're doing something unusual and represent a possible danger to the public.

No backpeddling here. We may be talking past each other.
The reason I say "arrested" is because that is what normally happens when you are suspected of crime and your stuff is confiscated in that process.
Police in neworleans used to confiscate guns just because you had them and that was ruled unconst.
Police talking to you is not the same as them taking your money or property. And it is the occurrence of the later that is being discussed and argued against by me.

An officer may have cause to investigate without having a "reasonable suspicion" he has every right to talk to you (not detain) as anyone else and for whatever reasons he likes.
However the line is when he actually searches or seizes your property. At that point he has to have reasonable suspicion.. and simple possession of lawful objects, or simple acting out of a personal right is not sufficient for confiscation.
If a trial is not given TO THE PERSON, then the objects seized during a search should be returned. To the extent that doesn't happen is or should be illegal.

Still, with all that, the money is not charged with a criminal offense. It may seem just an issue of semantics to you, but I don't think it is. In a civil case the plaintiff needs only "a preponderance of the evidence", much lower than "beyond a reasonable doubt".

no one is "charged" it is simply confiscated without due process or even a warrant.
So I'm not sure how what you are saying fits into that.

Let's say you live in the city, instead of your swamp. A property with a house a couple blocks from yours is abandoned by the owner who has moved out of state, though he still pays the property taxes. The weeds grow up, windows get broken, and drug dealers move in. The property is a nuisance to you and other neighbors, and the activities there represent a threat to neighborhood children, including yours. Would you argue that the government cannot seize the property, despite abandonment and continuing criminal activities? If so, then what would you have the city do? Nothing? Keep in mind that if the city cannot do anything at all, the same situation may happen in more houses in your neighborhood and around town, hurting your property value, and possibly causing a continuing downward trend to your neighborhood.

Here if the grass grows, the city cuts it and sends a bill to the owner.
When/if the owner doesn't pay the property is seized and sold to pay the debt.
Same thing occurs with property taxes.

My opinion is that the city should not seize the assets, but rather put a lien against it.. like every other person who is owed money would have to do.

Let's say you live in the city, instead of your swamp.

I take that as a joke. Because if it wasn't I'd have to get in my pirogue and paddle all the way to your house and give you a good talking too

[mican333]

Civil forfeiture can lead to suing the property itself.

In support:

"Under civil forfeiture, property owners do not have to be convicted of a crime, or even charged with one, to permanently lose their property. Instead, the government can forfeit a property if it’s found to “facilitate” a crime, no matter how tenuous the connection. So rather than sue the owner, in civil forfeiture proceedings, the government sues the property itself, leading to surreal case names like Commonwealth of Pennsylvania v. The Real Property and Improvements Known as 2544 N. Colorado St."

http://www.forbes.com/sites/institut...ction-lawsuit/


And:

In October 2009, police raided the house and charged her son, Andrew, then 24, with selling 8 packets of crack cocaine to an undercover informant. (Upon entering the house, police reported finding unused packets, though not drugs, in a rear bedroom.) Rochelle Bing was not present and was not accused of a crime. Yet she soon received a frightening letter from the Philadelphia district attorney’s office. Because Andrew had sold the drugs from inside his mother’s house, a task force of law enforcement officials moved to seize Bing’s house. They filed a court claim, quickly approved, that gave Bing just 30 days to dissuade a judge from granting “a decree of forfeiture” that would give the DA’s office title to the property. Bing was devastated.

On its face, Bing’s predicament might seem implausible if not unjust. How could someone who’s neither accused nor convicted of a crime be forced to give up her property because of another’s misdeeds? But stories like Bing’s are increasingly more common as Philadelphia and other jurisdictions have embraced the expansive power of forfeiture as a crime-fighting tool.

The idea behind forfeiture is simple enough: drug kingpins, embezzlers, racketeers and other offenders should not be able to keep the financial fruits of illegal acts. Prosecutors often ask a judge to seize the money, vehicles or real estate of a person convicted of a crime.

But authorities can also use civil law to seize assets before the criminal case is adjudicated or, as with Rochelle Bing, even when no charges are brought against the owner.

Doing so offers prosecutors considerable advantages. Unlike the “proof beyond a reasonable doubt” required in criminal law, prosecutors seeking civil forfeitures face a much lower standard. Usually, they need only prove that a “preponderance of evidence” connects the property — not its owner — to a crime. Technically, the property — not the owner — is named as the defendant.

Bing’s name, in fact, appears nowhere in the case involving her own home, listed in court filings as “Commonwealth of Pennsylvania v. The Real Property and Improvements Known as 2544 N. Colorado St.”

So Pennsylvania actually sued a piece of property.

http://www.propublica.org/article/la...le-their-homes




I can certainly understand the notion of people forfeiting their own property after they have been convicted of a crime. But it's completely and utterly unjust for people to permanently lose their property if they've not been convicted of a crime and it's just ridiculous to lose their property when they haven't even been charged with a crime.

Really, suing the property without the owner seems to be saying that the owner never owned the property in the first place. The property is its own entity and has no actual owner. If the property has no owner then property cannot be owned. Any property, really.

[evensaul]

I can certainly understand the notion of people forfeiting their own property after they have been convicted of a crime.

I think MindTrap and Squatch would agree with you. I'd like to better understand your position.

Tell me why conviction of a crime should result in forfeiture of property. Let's say police make a traffic stop of a Mercedes S550. They search the car after smelling marijuana and find a large amount hidden in the car. The driver is arrested for possession with intent to distribute. Why should his car be seized and forfeited if he is found guilty? Why shouldn't he be sentenced and or fined a dollar amount as though he was not in the Mercedes at the time of his arrest? Why should the vehicle be forfeited?

If someone owns a rural house on several thousand acres of land, and is found to be growing a few dozen marijuana plants on the property, why would you "certainly understand the notion" of him forfeiting his entire property and house?

[mican333]

I think MindTrap and Squatch would agree with you. I'd like to better understand your position.

Tell me why conviction of a crime should result in forfeiture of property.

I do not hold that conviction of a crime necessarily should result in forfeiture, only that forfeiture is definitely not acceptable until one has been convicted of a crime.

The principle behind civil forfeiture is that those who earn money through illegal activity are not entitled to keep the money they earned illegally nor the things that they purchased with that money. So regarding your car and house scenario, ONLY if the car and house were purchased with illegally-earned money are they subject to forfeiture. So just having weed in one's car is not a justification for seizing the car (beside the fact that I hold having weed shouldn't even be illegal).

And what is apparently happening is that people who aren't even accused, let alone convicted, of a crime are having their property seized which is clearly not acceptable and is basically theft.

[evensaul]

And what is apparently happening is that people who aren't even accused, let alone convicted, of a crime are having their property seized which is clearly not acceptable and is basically theft.

I put this in the same category of empty rhetoric as claims by tax protesters that income tax is theft. There is a legal procedure to get the money or other asset back. That some people in government abuse their authority and use the process improperly doesn't make it theft.

[mican333]

I put this in the same category of empty rhetoric as claims by tax protesters that income tax is theft.

Whether taxation is theft is entirely based on whether you agree that the government has the legal right to take some of your money without your consent in the form of taxation. As I hold that the government does have that right, I disagree that taxation is theft. But if I felt otherwise, I would consider taxation to the theft. So it's hardly empty rhetoric. It's a valid position assuming that one agree with the central premise behind the argument (and I don't agree with the premise).

There is a legal procedure to get the money or other asset back.

But it should not have been taken in the first place.

And many attempts to get the assets back fail. One example:

"In the middle of the night in March of 2012, NYPD officers burst into the Bronx home of Gerald Bryan, ransacking his belongings, tearing out light fixtures, punching through walls, and confiscating $4,800 in cash. Bryan, 42, was taken into custody on suspected felony drug distribution, as the police continued their warrantless search. Over a year later, Bryan's case was dropped. When he went to retrieve his $4,800, he was told it was too late: the money had been deposited into the NYPD's pension fund."

http://gothamist.com/2014/01/14/nypd...forfeiture.php

That some people in government abuse their authority and use the process improperly doesn't make it theft.

So what do you call taking something from someone that you have no right to take?

Maybe you don't call it theft when someone in government or law enforcement does it and that's up to you but it's hardly empty rhetoric to call it "theft".

[evensaul]

Mican, there are laws in place that the authorities appear to be following in the cases of seizure and forfeiture. That makes their actions legal. You may think them immoral or even unconstitutional, but neither of those would make them illegal, unless and until the seizure and forfeiture laws are repealed. You may even find a couple exceptions where the authorities didn't follow the law, but those exceptions don't somehow make the other legal seizures theft.

[MindTrap028]

Mican, there are laws in place that the authorities appear to be following in the cases of seizure and forfeiture. That makes their actions legal. You may think them immoral or even unconstitutional, but neither of those would make them illegal, unless and until the seizure and forfeiture laws are repealed. You may even find a couple exceptions where the authorities didn't follow the law, but those exceptions don't somehow make the other legal seizures theft.

I see this as a dismissal of ever growing trend of how law enforcement use the powers granted to them by the state. As law abiding citizens and as believers of freedom and the const, we should see this trend as a bad thing and act to curtail it. Not dismiss it. The problem of course is that this "legal" action is an abuse of power and aught not be legal. That is a very generous reading. A harsher reading is to say that what they are doing is in actuality illegal, but is not seen as illegal by the state. Which is the most dangerous kind of abuse of power by the state. It is the later that I hold to be the case.