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U.S. Supreme Court to hear civil forfeiture case

nytimes.com

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Re: U.S. Supreme Court to hear civil forfeiture case

#81

Post by rocqua »

jdmichal wrote: post #43
mijoharas wrote: post #33

Earlier quoted context omitted.

Sorry, could you explain what the 10th amendment is? (The Wikipedia page has some assumed knowledge that I do not have as I'm not American.)

The basic reading would be, that unless the Constitution defines a power of the federal government, that power resides with the states and citizens. As mentioned in the Wikipedia article, its addition was basically CYA, as it was and is true regardless of its enshrining within the Constitution. As such, its existence does not really mean anything beyond what the Constitution already meant. It just provides a handy sh…

> federal laws ... use funding carrots rather than criminal-punishment sticks

There are limits to this, some of which are set out in South Dakota v. Dole, 483 U.S. 203 (1987). These limits (quoting wikipedia) are:

* The spending must promote "the general welfare."

* The condition must be unambiguous.

* The condition should relate "to the federal interest in particular national projects or programs."

* The condition imposed on the states must not, in itself, be unconstitutional.

* The condition must not be coercive.

Especially the last condition is relevant. It means the withdrawal of funding cannot be so harsh as to be clearly funding. I believe the actual wording used is that the threat of withdrawal cannot be a 'gun to the head' of the states.

Re: U.S. Supreme Court to hear civil forfeiture case

#82

Post by gamblor956 »

ricree wrote: post #47
SlowRobotAhead wrote: post #41

Earlier quoted context omitted.

It means that anything not expressly prohibited in the constitution is up to the states to decide. What most people don't get (even in the USA) is that the constitution doesn't grant powers to people. It only restricts the government from acting on the people. People were born with the right to speak freely and defend themselves as they see fit - the government can't change that for example. So the 10th says if it is…

>Commerce clause means that if something moves from state to state, that sure does seem like a Federal matter To clarify (as you no doubt know, but other readers might not), this has been taken by courts to mean that any type of good that is traded between states is fair game for federal involvement, even if the actual product in question never has and never will travel outside of the state, or be bought or sold what…

This isn't true...the interstate commerce clause may only regulate wholly intrastate commerce if the law regulates interstate commerce and the targeted intrastate transactions would affect the interstate commerce subject to regulation. See Gonzalez v. Raich (permitting the criminalization of marijuana farming of marijuana that could only legally be sold in-state because marijuana as a good could be sold across state borders).

There aren't any cases governing wholly-intrastate physical goods no such goods exist, and generally when attempting to regulate otherwise purely local commerce (i.e., restaurants and civil rights), it is generally not a case of federal powers but rather of civil rights.

Re: U.S. Supreme Court to hear civil forfeiture case

#83

Post by harryh »

docker_up wrote: post #6

The fact that this monstrosity of justice has continued, even under presidents such as Obama, make me so angry and upset. It's exactly what happens when you let the police do whatever they want, without someone to curtail their behavior. Unfettered power equals unfettered corruption, and the fact this keeps occurring in 2018 is astounding and upsetting.

Civil forfeiture cases are argued before the judiciary branch. The power is not unfettered.

Re: U.S. Supreme Court to hear civil forfeiture case

#85

Post by [deleted] »

forapurpose wrote: post #57
SlowRobotAhead wrote: post #41

Earlier quoted context omitted.

It means that anything not expressly prohibited in the constitution is up to the states to decide. What most people don't get (even in the USA) is that the constitution doesn't grant powers to people. It only restricts the government from acting on the people. People were born with the right to speak freely and defend themselves as they see fit - the government can't change that for example. So the 10th says if it is…

On what is this analysis based? No offense to the parent, but I've learned that analyses of law by non-attorneys, while they can be valuable in regard to principles, are about as accurate as an attorney's analysis of a software project.

[deleted]

Re: U.S. Supreme Court to hear civil forfeiture case

#86

Post by jaredklewis »

apo wrote: post #73

It boggles the mind to think that forfeiture is alive and well today, some police departments even brag about the state-sponsored hooliganism they're committing, and the practice has never been seriously challenged in the Supreme Court. This looks to be the defense: The Indiana Supreme Court ruled against Mr. Timbs, on interesting grounds. It said the Eighth Amendment’s prohibition of excessive fines did not apply to…

To start, I am totally horrified by civil forfeiture, so please no one construe this as defending it.

But our personal opinions aside, I don't think the Indiana Supreme court decision is really very surprising from a legal perspective. The eight amendment is selectively incorporated and the excessive fines clause is not incorporated. The 14th amendment gave the courts the justification they needed to incorporate parts of the bill of rights, but for better or worse, not everything in the bill of rights has been incorporated yet, and there is nothing the Indiana supreme court can do about that.

It would certainly exceed their legal jurisdiction for a state court to decide that a federal constitution amendment is incorporated.

And while I hope this case prompts SCOTUS to fully incorporate the 8th amendment, we should also be demanding more of our state governments. Federalism gives states the power. The power to do bad, but also the power to do good. Why is that we so often have to depend on federal courts to protect our rights?

Why don't the legislators of Indiana provide protections against excessive fines in their own constitution, and why do their citizens not demand it? We all want the SC to swoop in and save the day, but we should also face these questions and figure out what we need to do as a society to change this.

Re: U.S. Supreme Court to hear civil forfeiture case

#87

Post by SlowRobotAhead »

LyndsySimon wrote: post #76
amarkov wrote: post #70

Earlier quoted context omitted.

How would Heller vs. DC have incorporated anything? DC is a federal district; there were no states involved in that case.

As I recall, Heller v. DC established the precedent that the RKBA is an individual right, while McDonald v. Chicago established that the Second Amendment was incorporated through the Fourteenth Amendemnt’s “Due Process” clause.

>Heller v. DC established the precedent that the RKBA is an individual right

Yes. Well, it always an individual right 250 years of clear examples in texts, but a lot of people tried "the militia argument" which was funny because "a well regulated militia" was immediately followed by "the right of the people to keep and bear arms shall not be infringed". The idea was that antigun people claimed the militia was an official organization like the modern national guard and not the reality of militias which includes any able bodied person able to fight for defense of state and self. Like you and me.

Heller was "the case" the ended the "collective rights" nonsense argument. The SCOTUS case that means the federal government has no power to keep people from bearing arms. All McDonald wanted to do was keep a gun on him outside of his house and IL/Chicago refused to issue permits - the easy way to see the difference is Heller was the people's right, McDonald just clarified it means outside of your home.

Re: U.S. Supreme Court to hear civil forfeiture case

#88

Post by gamblor956 »

SlowRobotAhead wrote: post #80
throwaway76543 wrote: post #55

Earlier quoted context omitted.

"Your own link makes note that selective incorporation doesn't apply to the bill of rights." No, it doesn't. In fact, it clearly states the opposite noting that the 3rd, 7th, 9th and 10th amendments in the Bill of Rights have not been incorporated. On that page you can even find a table noting when each amendment in the Bill of Rights was incorporated. It quite clearly tells you that the 2nd amendment was incorporate…

Oh I agree, the table on your site says that. It's extremely wrong. Would have been much less obvious if they had selected the more important SCOTUS case just 2 years earlier. By pushing the agenda you implied with "2A against the states" you showed your cards to not care about the facts.

The table is correct. 100% correct. It's maintained by a law school, and is verified by a professor of Constitutional Law at least annually.

As a lawyer, I trust the Cornell Legal Information Institute. I have used it in my practice.

Re: U.S. Supreme Court to hear civil forfeiture case

#89

Post by SlowRobotAhead »

gamblor956 wrote: post #82
ricree wrote: post #47

Earlier quoted context omitted.

>Commerce clause means that if something moves from state to state, that sure does seem like a Federal matter To clarify (as you no doubt know, but other readers might not), this has been taken by courts to mean that any type of good that is traded between states is fair game for federal involvement, even if the actual product in question never has and never will travel outside of the state, or be bought or sold what…

This isn't true...the interstate commerce clause may only regulate wholly intrastate commerce if the law regulates interstate commerce and the targeted intrastate transactions would affect the interstate commerce subject to regulation. See Gonzalez v. Raich (permitting the criminalization of marijuana farming of marijuana that could only legally be sold in-state because marijuana as a good could be sold across state…

>if the law regulates interstate commerce and the targeted intrastate transactions would affect the interstate commerce subject to regulation

Right, but the issue is that's so laughably wide that it's meaningless. Esp as the internet has made things easier, you can be certain it's legally arguable to "prove" that even a small time seller of some good is measurably impacting big company X.

Re: U.S. Supreme Court to hear civil forfeiture case

#90

Post by gamblor956 »

docker_up wrote: post #50
smsm42 wrote: post #18

Earlier quoted context omitted.

Obama never showed any desire to curtail executive powers. In fact, he was championing exactly the opposite approach - that executive has the power to produce new regulatory legislation and ignore existing legislation they don't like, as soon as they perceive Congress does not do what they want it to do. No wonder Obama did nothing for civil forfeiture reform - that would be the exact opposite of his policy of infini…

You would think a professor in Constitutional Law would be eager to plug a whole that the police were taking advantage of, namely suing the money instead of suing the person. Yet all there was was deafening silence. So disappointing when people don't see things like this.

Obama eventually did plug the hole...

It wasn't that big of an issue until after the recession (i.e., during his second term), so it simply wasn't on his radar while he dealt with more pressing issues.

Moreover, civil forfeiture is allowed under federal law under very broad terms. It took quite a bit of time after it became an issue to draft a policy that would allow it to continue but end the excesses. Obama couldn't simply stop enforcing the law because the GOP and various state/local law enforcement agencies were prepared to sue in court to keep the gravy train going, and such a lawsuit would have kept the practice fully legal until long after his second term ended.

Indeed, Congress could have ended civil forfeiture immediately but simply eliminating the law allowing for it. But GOP members of Congress blocked every such attempt.

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