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Stop-And-Seize Turns Police into Self-Funding Gangs

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Re: Stop-And-Seize Turns Police into Self-Funding Gangs

#201

Post by dragonwriter »

jbooth wrote: post #193
rayiner wrote: post #183

Earlier quoted context omitted.

It's the standard civil burden of proof. If I say I own Blackacre and you say you own it, I just have to present enough evidence to get over the 50% mark.

I think the point here is that a civil burden of proof is completely inappropriate when the plaintiff is the state and there's an allegation of criminality.

That's not necessarily a bad argument, but the theoretical basis of the criminal burden of proof is that the kind of consequences resulting from criminal conviction are different than mere property (which is routinely at issue in civil cases).

So, the principle on which the existing distinction is based really doesn't support it being applied to forfeiture actions.

And, while there might be a good argument for changing the principle underlying the distinction, I don't see a clear reason for applying specifically the beyond a reasonable doubt standard to forfeiture (or even a higher standard that would apply in any other civil claim.)

Re: Stop-And-Seize Turns Police into Self-Funding Gangs

#202

Post by wehadfun »

rayiner wrote: post #181
makomk wrote: post #180

Earlier quoted context omitted.

Of course, this styling isn't just used in cases where the property was illegally obtained. It's also used in cases where it's not in dispute that the property was legally obtained, and the government simply seeks to take it from the legitimate owner as a penalty for a crime they assert he committed, in order to avoid naming the owner as a defendant even though they know exactly who owned the property they seized.

Source?

https://en.wikipedia.org/wiki/In_rem_jurisdiction

Re: Stop-And-Seize Turns Police into Self-Funding Gangs

#203

Post by makomk »

rayiner wrote: post #181
makomk wrote: post #180

Earlier quoted context omitted.

Of course, this styling isn't just used in cases where the property was illegally obtained. It's also used in cases where it's not in dispute that the property was legally obtained, and the government simply seeks to take it from the legitimate owner as a penalty for a crime they assert he committed, in order to avoid naming the owner as a defendant even though they know exactly who owned the property they seized.

Source?

Take a look at United States v. One Ford Coupe Automobile for a start.

I'm not convinced you're entirely correct in saying that "the money isn't charged" either. So far as I can tell, the idea that the money is in fact being charged is an important part of the legal justification for asset forfeiture in the absence of an actual criminal conviction, or indeed actual culpability on the part of the owner. From Bennis v. Michigan (which you mentioned in another thread):

"On the Government's appeal from the Circuit Court's acquittal of the vessel, it was contended by the owner that the vessel could not be forfeited until he was convicted for the privateering. The Court rejected this contention, explaining: "The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing." Id., at 14. In another admiralty forfeiture decision 17 years later, Justice Story wrote for the Court that in in rem admiralty proceedings "the acts of the master and crew . . . bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs." Harmony v. United States, 2 How. 210, 234 (1844) (emphasis added)."

Re: Stop-And-Seize Turns Police into Self-Funding Gangs

#204

Post by dreamdu5t »

MCRed wrote: post #172
Fezzik wrote: post #106

Ugh, so much misinformation. Having lurked here for a while HN seems to think civil forfeiture is the boogie man. To clarify a few things, at least on the county level: 1) There are always drugs when property is seized this way. I review every single civil forfeiture in a rather large county, and the affidavits officers submit read something like: "I stopped Bob after an informant purchased a large amount of heroin f…

> There are always drugs when property is seized this way. Nope. Several years ago the FBI stole $6M in Platinum, Gold and Silver. Some of the theft was of protected political speech-- literally copper & silver pieces with Ron Paul's picture and a campaign slogan on them. No allegations of drugs was involved, and the criminality claim -- that using gold and silver as barter threatened to undermine the US dollar -- wa…

I came here to mention this example as well.

Re: Stop-And-Seize Turns Police into Self-Funding Gangs

#205

Post by unethical_ban »

Fezzik wrote: post #143
gherkin0 wrote: post #121

Earlier quoted context omitted.

> To clarify a few things, at least on the county level: > I review every single civil forfeiture in a rather large county Which county is that, and is your county representative of all counties in the US? > the affidavits officers submit read something like: "I stopped Bob after an informant purchased a large amount of heroin from Bob, Bob had syringes, heroin, weed, a scale for weighing drugs etc... on his person,…

> Which county is that, and is your county representative of all counties in the US? Multnomah County, Oregon (I cited to our state statute though... most that I have seen are very similar). Seizure law is either State or Federal. > If that's usually the case, why wasn't Bob arrested? In your scenario, he had illegal drugs in his possession, so an arrest seems more appropriate than a simple seizure. Bob usually is ar…

I believe I have read stories of people in Tennessee on known drug routes, and a member of the Libertarian party at an airport, being detained for hours being questioned about their possession of large amounts of cash. The man in TN didn't get it back. The man from the LP did, eventually.

I simply don't believe, based on what I've read in the past, that the presence of drugs is a prerequisite for peoples' money to be stolen by police.

Re: Stop-And-Seize Turns Police into Self-Funding Gangs

#206

Post by tptacek »

jbooth wrote: post #191
tptacek wrote: post #81

Earlier quoted context omitted.

Unfortunately for this argument, the word "reasonable" means pretty much the same thing now as it did in 1787, and is clearly meant to delegate most of the answer to this question to the people (in the form of the legislature), and not the philosopher-kings of the court. You will of course come up with many arguments, virtually all of which I'll agree with, that asset forfeiture is "unreasonable". The problem is that…

I'm not a lawyer but this strongly disagrees with everything I learned in high school civics class about judicial review, and with many many high profile court cases overturning popularly enacted laws, from Marbury v Madison through to the current day gay marriage ban reversals. It seems pretty cut and dried to me that the 4th amendment supersedes any law passed in direct opposition, just like the 1st or 2nd would. T…

SCOTUS can of course overturn any statute for any reason, valid or not, subject to very few practical restrictions. So when we're talking about where they'll intervene, we're always doing that with the proviso that we're predicting their behavior based on their charter and their history.

Having said that, the history of 4A law suggests that the word "reasonable" in 4A connotes a mandate for unusual deference to the legislature --- and SCOTUS already tends strongly towards deference.

Re: Stop-And-Seize Turns Police into Self-Funding Gangs

#207

Post by btilly »

dragonwriter wrote: post #189
btilly wrote: post #184

Earlier quoted context omitted.

Many, many forfeiture cases demonstrate that the reasonable presumption is not actually made by our system. For example many look like, "Person tries to board a plane. TSA finds money on person, seizes it, sues the money with no case made against the person."

> Many, many forfeiture cases demonstrate that the reasonable presumption is not actually made by our system. For example many look like, "Person tries to board a plane. TSA finds money on person, seizes it, sues the money with no case made against the person." The structure of asset forfeiture laws requires that the action be formally against the property. They also require both specific notice of people with specif…

Yes, yes. I know the legal fiction. You can find it well-described at https://www.law.cornell.edu/wex/forfeiture.

But my description of how it actually happens is still valid. See https://www.washingtonpost.com/news/wonk/wp/2015/06/30/why-t... for a recent case where exactly this happened. And it links to 3 other cases where money was seized from travelers, with no criminal charge ever being filed against anyone. In all 4 of these cases a person tried to board a plane, TSA finds money, seizes it, sues the money, and no case is made against the person. In none of the cases did the person get said money back. (The main conflict over where it goes in most cases is that a couple of dozen different government agencies argue about how to divide it up.)

The most unusual trait connecting these cases is that there was publicity about it. It happens so often that reporters usually don't bother to write about them.

The problem is that legal standard is that the government merely has to establish "reasonable suspicion that there was a crime", while the person has to establish "a preponderance of evidence that there was not". This reverses "innocent until proven guilty." How do you establish a preponderance of evidence that no crime happened when no specific crime was ever alleged? It is effectively impossible.

This story from a year ago on the front page establishes the shift in standards quite well: http://www.economist.com/blogs/democracyinamerica/2014/02/ci.... A quick summary is that a couple was indicted of a crime and successfully defended themselves. In the process the government seized a home through civil forfeiture, and the forfeiture stood because the couple was unable to prove that the crime did not happen.

(Unlike the cases that I'm describing above, in this case a specific crime was alleged. Normally the TSA just claims something like, "there was a smell of marijuana" and you have no way to prove that there wasn't.)

Re: Stop-And-Seize Turns Police into Self-Funding Gangs

#208

Post by rayiner »

makomk wrote: post #203
rayiner wrote: post #181

Earlier quoted context omitted.

Source?

Take a look at United States v. One Ford Coupe Automobile for a start. I'm not convinced you're entirely correct in saying that "the money isn't charged" either. So far as I can tell, the idea that the money is in fact being charged is an important part of the legal justification for asset forfeiture in the absence of an actual criminal conviction, or indeed actual culpability on the part of the owner. From Bennis v.…

That quote from Justice Story is precisely why such proceedings are not a "penalty for a crime [the Government] assert[s] [someone] committed." The purpose of such proceedings is to confiscate property used for illegal purposes (so it cannot continue to be used for illegal purposes), not to punish the owners of the property. Hence why in that case they confiscated the ship "whether [the owner] be innocent or guilty."

Re: Stop-And-Seize Turns Police into Self-Funding Gangs

#209

Post by commentzorro »

popeshoe wrote: post #115
commentzorro wrote: post #24

This is the Republican Dream. Shifting taxes to states then to localities and finally to each group within the locality. As the nation moves farther and farther to the right expect the to happen in every state and local agency out there.

You reminded me of this article: http://www.newyorker.com/humor/daily-shouts/l-p-d-libertaria...

This is great. Best line is, "Home Depot™ Presents the Police!®."

Re: Stop-And-Seize Turns Police into Self-Funding Gangs

#210

Post by bionsuba »

Pxtl wrote: post #145
bionsuba wrote: post #123

Earlier quoted context omitted.

Tons (if not all) of gun laws exist in the US that are unconstitutional. You many not know this as a UK citizen but the gun industry in the US is very regulated, e.g. creating a gun from scratch by yourself and selling it to someone else is illegal.

.... it would seem to be a fairly extreme interpretation of the 2nd amendment to support the creation of uncontrolled, unsafe, unlicensed, untracked firearms. The 2nd amendment just says you have to be able to own and carry weapons, with a rough implication that they should be fit for military purpose. The idea that registration or quality or safety requirements are somehow unconstitutional is and has always been abs…

> it would seem to be a fairly extreme interpretation of the 2nd amendment to support the creation of uncontrolled, unsafe, unlicensed, untracked firearms

You're right, the laws are unconstitutional because of the tenth amendment.

Before the normal arguments about the constitution pop up, please know that I'm not a rightist and I don't support it, I just don't like it when people twist words and laws to suit their political agenda.

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