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FAIR Act to Reform Asset Seizure Laws


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Slate usually has about as much use for libertarians as Joe does but they sometimes cite them.

 

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After his father died, Timbs used roughly $42,000 of his father’s life insurance proceeds to buy a 2012 Land Rover. To support his heroin addiction, Timbs drove the Land Rover across Indiana to buy, transport, and sell drugs. Undercover police officers caught him in May 2013, and he was sentenced to one year of home detention, five years of probation, and roughly $1,200 in fines and court fees.

But that was not the end of the case. Under Indiana law, the state may seize any vehicle used in drug trafficking. So Indiana initiated a forfeiture action against Timbs’ Land Rover. The vehicle is itself a party to the case, leading to one of the more entertaining case titles in recent memory: Tyson Timbs and a 2012 Land Rover LR2 v. Indiana. While the name is unusual, forfeiture actions of this sort are quite common; by one count, states generated more than $250 million through forfeiture actions in 2012 alone.

 

Dastardly! The bolded link goes straight to tobacco lobbyists who want to trash children. Or something.

Anyway, they at least usually have informed and interesting reasons like these:

 

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This should be the perfect case for a libertarian originalist like Neil Gorsuch. But it turns out there is an antecedent constitutional question in the case, and the historical evidence on that front points strongly in Indiana’s favor. That question is whether what Indiana has done—seize a vehicle used to traffic drugs through civil proceedings—can be said to constitute a fine.

There is ample evidence that the original meaning of the term “fine,” as it was used when the Eighth and 14th Amendments were ratified, did not extend to these kinds of civil forfeitures. After all, the federal government had a tradition of routinely seizing private property in ways that seem excessively harsh to the modern ear.

Consider the 1818 case of the Little Charles, a ship that the federal government seized after it sailed to Antigua in violation of an American embargo. In an opinion written by none other than Chief Justice John Marshall, the court reasoned that the ship could be subject to forfeiture even if it violated the embargo “without the authority, and against the will of the owner.”

Or take the Louisa Barbara case. Under an 1819 federal law, a ship could only carry a certain number of passengers based on its weight. The Louisa Barbara violated the limit by carrying 178 passengers—one more than it was authorized to carry. Yet the federal government proceeded to seize the entire ship. Federal courts were unmoved by the owner’s defense that many of the 178 passengers were children.

Stories of similarly harsh civil forfeitures fill Indiana’s brief in this case.

 

Bolding is mine. That's the tradition that continues.

 

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This history is what makes this case so hard for someone like Neil Gorsuch. If he follows the history and tradition of the Eighth Amendment to its logical extreme, the excessive fines clause would have nothing to say about an excessively harsh civil forfeiture. So, according to this thinking, Indiana could have seized Timbs’ vehicle due to its involvement in small scale drug trafficking even if it was the tawdriest of Ferraris. At the same time, there is the trouble of the aforementioned case called, Austin v. United States, in which the Supreme Court held in 1993 that the excessive fines clause does in fact cover civil forfeitures, at least when initiated by federal authorities. Yet Gorsuch has shown little reluctance to overrule settled precedent in his time on the bench so far. Finally, there is some evidence that the term “fine” was historically used interchangeably with “forfeiture,” which means that an ordinary member of the public in 1791 or 1868 may well have thought the latter encompassed by the former.

The court should acknowledge that both understandings of “fine” are plausible—one that includes forfeitures and one that does not. At that point, it seems wiser to decide which is the correct understanding of the Eighth Amendment by looking to the broader principles undergirding the Constitution, precedent, and the dire consequences of a rule authorizing limitless civil forfeitures for petty crimes. Each of those considerations weighs in Timbs’ favor. Or more precisely, they weigh in favor of a certain 2012 Land Rover and its odds of being reunited with its owner.

 

And in favor of the Institute for Justice winning the case that we would not be discussing without them.

MSN isn't as informative about the law but interviewed Mr. Timbs.

https://www.msn.com/en-us/news/crime/supreme-court-to-decide-whether-taking-drug-dealers-land-rover-is-excessive/ar-BBQbvwe

He started out joking about going to SCOTUS, then the joke became real, thanks to meddlesome libertarians.

Other realities:

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Timbs’ Land Rover remains in the state’s possession, which has created complications. Timbs and his aunt share her vehicle, and because of this, she has to take the city bus to kidney dialysis appointments three days a week.“I have to rely on people occasionally.

For me, a lot of times, it’s been more of a self-esteem thing,” Timbs said. “That’s a thing that bothers me the most, that it’s not always the people that have made the mistake that have to pay. It’s the people around them that are put out too.”

Mr. Timbs has been sober for a while, has a normal job and a normal life. And might get his Land Rover back soon if those evil bastards at IJ get their way.

For further reading:

http://www.scotusblog.com/2018/11/argument-analysis-court-appears-ready-to-rule-that-constitutions-bar-on-excessive-fines-applies-to-the-states/

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How the shakedown works in Michigan   Seizing cars that leave dispensaries isn't cutting off any illicit proceeds. It is, in my view, generating them for Wayne County.

Not this one.

Sure - after you're convicted in a court of law and the magistrate/judge applies a penalty they consider appropriate. Not just some law official confiscating stuff and forcing you to court to get it b

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That last link explains why it will still be a while before Timbs gets his Land Rover back, which it seems likely he will.
 

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At one point during Fisher’s time at the lectern, Kagan noted that, when the Supreme Court decides that a provision of the Bill of Rights applies to the states, “there are always going to be questions about the scope of the right” that applies. But when the justices “have decided whether to flip the switch” and decide whether a right applies, it hasn’t decided those questions, instead leaving them “for another day,” she explained.

Given the near consensus on the Supreme Court that the excessive fines clause applies to the states, the justices are likely to say so, but without much more. That could still be good news for Timbs, because two lower courts agreed with him that the forfeiture of the Land Rover was excessive; the Indiana Supreme Court ruled only that the excessive fines clause does not apply to the states at all.

 

About all they will say is "reversed and remanded."

That means, "no, think about it some more and return a different result."

Getting consensus for more will run up against this brick wall:
 

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There seemed to be significantly less agreement among the justices on the scope of the right – that is, whether fines like the forfeiture of Timbs’ car do indeed violate the excessive fines clause. Chief Justice John Roberts was unsympathetic, telling attorney Wesley Hottot, who represented Timbs, that Timbs’ Land Rover “was an instrumentality of the crime. This is how he got to the deal place and how he carried the drugs.” If a defendant was carrying the drugs in his car, Roberts stressed, “I think it’s pretty well-established” that the car can be forfeited.

Roberts and Justice Samuel Alito also expressed concern about how courts would decide whether a fine was excessive. Alito asked Hottot whether a forfeiture would be excessive if, instead of a Land Rover, Timbs had been driving a 15-year-old Kia or a $250,000 Bugatti. Roberts chimed in, asking Hottot whether it would matter if a defendant were very wealthy or very poor, so that the same fine would affect him differently.

 

The bolded part is where things get blurry in this case, because Mr. Timbs was himself the drug dealer. But the exact same reasoning was used to seize the boats noted above in daze of yore and to seize the infamous yacht Monkey Business more recently. Monkey Business was seized because a crew member had some stems and seeds. The boat carried contraband. It was guilty. The guilt of the owner or the crew member was not an issue in the seizure.

A friend's dad had his yacht seized a long time ago for the same reason. He gave a Bahamian (who he sort of knew for a long time) a ride from Bimini to Miami. Upon arrival, the guy jumped ashore and ran like hell. Friend's dad was NOT happy about this, but that didn't matter. Everyone agreed that his boat committed the crime of carrying that guy. Guilty property. Seized.

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39 minutes ago, Steam Flyer said:

I see the problem as more that the people who find it compelling, rather than appealing, are inflexible authoritarian types whose sense of authoritarianism makes them really really hate to follow anybody else's instructions. That's why the emotional need to overturn established, functioning policies; and the inflexible and ultimately impractical attempt to make a vague philosophical guideline into some kind of strict commandment.

and

36 minutes ago, kent_island_sailor said:

Libertarians aren't any different than hippies in a commune. Their approach works only among a group vastly more benign than the average. The real world countries lacking central government authority are shitholes, not Ayn Rand paradise.

 

John Rogers > Quotes >

“There are two novels that can change a bookish fourteen-year old’s life: The Lord of the Rings and Atlas Shrugged. One is a childish fantasy that often engenders a lifelong obsession with its unbelievable heroes, leading to an emotionally stunted, socially crippled adulthood, unable to deal with the real world. The other, of course, involves orcs."

[Kung Fu Monkey -- Ephemera, blog post, March 19, 2009]”

I think these critiques are worth discussing here, in a thread in which there are numerous examples of that emotional need to overturn established, functioning policies, the latest involving Mr. Timbs and his Land Rover.

So I'd guess that you guys think the long-established system of seizing guilty property shouldn't be overturned by these meddlesome libertarians, right? Odd, I never figured either of you for big John Roberts fans, but he seems to agree with you above.

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3 hours ago, kent_island_sailor said:

Tom

Libertarians are not always wrong.  Asset seizure reform is one area I support 100%

That's nice, thanks.

Maybe I should take it to the Kelo thread?

Or how about the recent one on marijuana and gay marriage?

The objections seem to boil down to "they like Ayn Rand," who is a controversial objectivist, not a libertarian and certainly not loved by all libertarians.

I'm trying to figure out how that objection translates into the policies we support. So which would be a good thread?

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Gorsuch said something interesting during oral arguments in the Timbs case
 

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...Now here is where things start to get interesting. "We all agree that the Excessive Fines Clause is incorporated against the states," Gorsuch said during the Timbs oral arguments. But he then acknowledged that not everyone on the Court agrees on exactly how it should be done. "Whether you want to do it through the Due Process Clause and look at history and tradition," he continued, "or whether one wants to look at privileges and immunities, you might come to the same conclusion."

Gorsuch was likely thinking about McDonald v. Chicago, the 2010 case in which the Court confronted these questions: Does the Second Amendment right to keep and bear arms apply against the states via the 14th Amendment, and if it does apply, is that because the right to keep and bear arms is a privilege or immunity of U.S. citizenship, or because it is one of the liberties protected by the Due Process Clause?

The Court ultimately ruled 5-4 in favor of Second Amendment incorporation. But only four justices (Roberts, Scalia, Kennedy, Alito) embraced the Due Process Clause. In a lone concurrence, Justice Clarence Thomas argued that fidelity to the original meaning of the 14th Amendment required incorporation via the Privileges or Immunities Clause instead.

What explains this split among the Court's right-leaning justices? The short answer is the fear of "judicial activism." Some conservatives worry that if the Supreme Court embraces the Privileges or Immunities Clause, that clause will then be used to justify greater judicial meddling in future cases. Thomas, by contrast, waved away those concerns in his McDonald concurrence. "The mere fact that the [Privileges or Immunities] Clause does not expressly list the rights it protects," he wrote, "does not render it incapable of principled judicial application."

 

Trying to go down that road in the McDonald case at oral arguments did not go well for Alan Gura.

This is how Scalia told him to shut up and sit down and let the guy from the NRA argue due process:

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JUSTICE SCALIA: Mr. Gura, do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due?

MR. GURA: It's -­

JUSTICE SCALIA: Is it easier to do it under privileges and immunities than it is under substantive due process?

MR. GURA: It is easier in terms, perhaps, of -- of the text and history of the original public understanding of -­

JUSTICE SCALIA: No, no. I'm not talking about whether -- whether the Slaughter-House Cases were right or wrong. I'm saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?

MR. GURA: Justice Scalia, I suppose the answer to that would be no, because -­

JUSTICE SCALIA: Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when -- when you can reach your result under substantive due -- I mean, you know, unless you are bucking for a -- a place on some law school faculty -­

(Laughter.)

MR. GURA: No. No. I have left law school some time ago and this is not an attempt to -- to return.

JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it's wrong, I have -- even I have acquiesced in it?

 

Ouch. As I've noted elsewhere, when a Justice makes the room laugh at you, you haven't much of a shot.

But now Scalia is gone and Thomas may have an ally in thinking those words in the 14th amendment may have a practical meaning after all.

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13 hours ago, hasher said:

He's really only mildly corrupt compared to many, as noted toward the end of the article.
 

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Top prosecutor Paul Howard’s solution was to conjure up his own federal bailout — with money that is primarily intended to fight crime and drugs.

Along the way, Howard dipped into these same federal funds to buy $8,200 worth of security equipment for his home; a trip for him and his top lieutenants to a civil rights celebration in Alabama; and attendance at a celebrity basketball showcase featuring his NBA star nephew Dwight Howard and entertainers such as Atlanta music icon Cee Lo Green.

Thousands more went to food, gala tickets and office bashes, even as the county slashed the office’s budget, an Atlanta Journal-Constitution examination found.

 

The home security cameras were probably the least defensible aspect. My mother faced some threats as a prosecutor. A fence appeared in front of our house. Paid for by? Us.
 

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Other reports of controversial spending also raise serious concerns about the potential for abuses, as seizures in the billion-dollar Justice Department program have tripled in the past decade.

Police in Bal Harbour, Fla. paid more than $700,000 in salaries and benefits not allowed by federal rules. They also bought a $100,000 boat and $225,000 surveillance truck. A 2012 audit found no record of arrests related to the seizures.

And in 2011, a Kentucky sheriff pleaded guilty to theft-related charges after prosecutors said he used funds “like a personal checking account.”

In Georgia’s Troup County, a sheriff who lost a primary election used federal forfeiture funds for a $2 million spending spree during the final months of his term, a county audit found.

 

But 8k for a security system makes this guy a piker in the drug war loot world.

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On 12/6/2018 at 5:06 AM, dogballs Tom said:

Ouch. As I've noted elsewhere, when a Justice makes the room laugh at you, you haven't much of a shot.

SEE THE LIBERTARIAN NORMALIZE THE CORRUPTION, read SAILING ANARCHY 

Hmmm, Scalia walked Gura, like a poodle on a leash, in front of God, the Supreme Court, and even the transcriber..  NIce

Thanks for the evidence of the SC Justice who openly acted as an advocate to spin the Second Amendment.

Thanks, dummy.

 

 

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On 12/5/2018 at 11:21 AM, kent_island_sailor said:

Tom

Libertarians are not always wrong.  Asset seizure reform is one area I support 100%

*1.

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On 7/21/2018 at 7:05 AM, dogballs Tom said:

How the shakedown works in Michigan
 

Seizing cars that leave dispensaries isn't cutting off any illicit proceeds. It is, in my view, generating them for Wayne County.

And Wayne County Gets Sued Again
 

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A Detroit woman is suing Wayne County, Michigan, after police seized her car for possession of $10 worth of marijuana under the state's civil asset forfeiture laws.

Crystal Sisson alleges in a federal civil rights lawsuit filed Wednesday that she was pulled over by Wayne County Sheriff's deputies this July after they surveilled her going into a Detroit medical marijuana dispensary, where she had bought a small amount of marijuana for $10. After discovering the marijuana, which is decriminalized in Detroit, the sheriff's deputies cited her for "illegally occupying a place where controlled substances are sold" and seized her 2015 Kia Soul.

Under civil asset forfeiture laws, police can seize property—cash, cars, and even houses—suspected of being connected to criminal activity. Law enforcement groups say it is a vital tool for disrupting organized drug trafficking and other crimes, but civil liberties groups say it has too few protections for innocent property owners and far too many perverse profit incentives for police and prosecutors.

To get her car back, Sisson had to pay the Wayne County Prosecutor's Office $1,200 to settle the forfeiture case, a typical practice in the county. Sisson's lawsuit, however, argues that the seizure and settlement was unconstitutionally excessive.

 

The same argument as the Timbs case, so what happens to him will happen to her.

They are distinct because Timbs was actually dealing heroin at the time and Sisson was apparently "being in a bad place."

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On 12/5/2018 at 2:29 PM, A guy in the Chesapeake said:
On 12/5/2018 at 2:21 PM, kent_island_sailor said:

Tom

Libertarians are not always wrong.  Asset seizure reform is one area I support 100%

Too bad we can combine the best of each perspective into something that actually works for the people, eh? 

and

22 hours ago, jocal505 said:
On 12/5/2018 at 2:21 PM, kent_island_sailor said:

Tom

Libertarians are not always wrong.  Asset seizure reform is one area I support 100%

*1.

Agreement is broad indeed.

Last month, I posted about how the House unanimously approved some reforms, which the Senate then ignored.

By any chance does this 100% support include writing to any Senators about why they ignored the issue?

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On 12/8/2018 at 6:21 AM, dogballs Tom said:

and

Agreement is broad indeed.

Last month, I posted about how the House unanimously approved some reforms, which the Senate then ignored.

By any chance does this 100% support include writing to any Senators about why they ignored the issue?

Yup. 

 

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2018 Was A Bad Year For Looters

Philly and Albuquerque will have to look to taxpayers instead of stealing property to meet their budgets and the Supreme Court is having a look at the issue in the Timbs case.

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Until recently, a major roadblock to all these reforms was Jeff Sessions. The former U.S. attorney general rolled back Obama-era restrictions and emboldened state and local law enforcement to ramp up seizures—and bypass stricter state laws—by partnering with federal authorities. How much longer that loophole remains open depends on Congress.

Specifically, on the FAIR Act, since there's no hope a replacement AG will reverse this policy.

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14 hours ago, Olsonist said:

There's profit in throwing people in prison for drugs as well.


Nah, the lawyers and prisons are expensive.

The real profit from the drug war comes from looting property from people who are never convicted of a crime.

But that's a Duopoly program and only libertarians are going to say bad things about it.

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  • 4 weeks later...

Entertaining myself this morning by searching the oral arguments in the Timbs case for the word "laughter."

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/17-1091_1bn2.pdf

A couple of times it was just because Justice Breyer is funny and self-deprecating.

A couple of other times it was because he made the room laugh at the government's position. Sotomayor did too, with this rather blunt question:
 

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JUSTICE SOTOMAYOR:  Because that's the only way that you can win with a straight face?  

MR. FISHER:  No, I don't -­

(Laughter.) 

 

Ouch.

Gorsuch got in on the fun too.

Justice Ginsburg asked Timbs' lawyer an interesting question about the defunct "privileges and immunities" part of the 14th amendment.
 

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MR. HOTTOT:  Yes, Your Honor.  And we also have an alternative argument under Section 1's Privileges Or Immunities Clause. And -­

JUSTICE GINSBURG:  That would leave out non-citizens?  

MR. HOTTOT:  Yes, textually, Justice Ginsburg, that would leave out non-citizens, but, of course, Petitioner is a citizen, and that could be a decision for another day. It's also true that the fundamental and deeply rooted rights that are currently incorporated under the Due Process Clause apply to non-citizens and they would continue to do so  regardless of the Court's reasoning in this case.


 

If the court ever does reach into the dustbin of history and grab that one, it's true that it would apply only to citizens, at least at first.

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9 minutes ago, Mid said:
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He surrounded himself with border agents, victims of horrible crimes, a display of methamphetamine and heroin, an AK-47 and an AR-15 rifle, and a trash bag stuffed with $362,062 in cash that had been confiscated by law enforcement officials.

In his view, it all added up to a single word, “crisis,” with a lone solution, building a wall — a point he emphasized in a discussion with the crime victims, law enforcement officers and McAllen residents.

“That says it all,” Mr. Trump said of the contraband. “They didn’t have to go very far. This is all very recent.”

But there was another reality. The display of drugs, weapons and cash was mainly the product of law enforcement actions stopping criminals at international bridges, where most drugs are smuggled, and conventional ports of entry.

In a place where a wall is already in place, law enforcement officials boasted of apprehending criminals who had built a tunnel. The money was taken from a suspect who had overstayed a visa.

 

https://www.nytimes.com/2019/01/10/us/politics/trump-mcallen-border-crisis.html

I was hoping the article had more details on that subject.

Hundreds of thousands sounds like kind of a steep penalty for overstaying a visa, possibly worse than taking Mr. Timbs' Land Rover.

But it's probably not a penalty at all. The cash is likely charged with being improperly acquired and it is presumed guilty of that crime unless the suspect can prove the cash innocent.

If he can't, JACKPOT! Equitable sharing of the loot can begin!

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12 hours ago, Fah Kiew Tu said:

I don't bother discussing *this topic* with him because I basically agree with his position. What's the point of posting stuff like 'Yeah me too'......

Now on other topics I think he's an obsessive fuckwit.

FKT

BS.

You don't discuss issues where we disagree either. For example:

On 11/13/2018 at 4:59 AM, Fah Kiew Tu said:

We don't have asset seizure laws like you do - even our politicians weren't quite *that* venal/greedy/stupid.

So the question is moot.

FKT

I disagree with this. Your laws seem similar to me in the most important way: you also seize "guilty" property from owners who are known to be innocent.

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58 minutes ago, dogballs Tom said:

BS.

You don't discuss issues where we disagree either. For example:

I disagree with this. Your laws seem similar to me in the most important way: you also seize "guilty" property from owners who are known to be innocent.

As I said, obsessive fuckwit.

FKT

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On 9/2/2016 at 6:17 AM, dogballs Tom said:

Trump wants to use asset forfeiture to fund the stupid wall

 

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The plan would uniquely incentivize both nations to ramp up efforts to degrade and destroy the illegal drug trafficking market.

 

 

Because bureaucracies everywhere just love to cut off their funding sources.

 

The incentives will be the same as always: to seize more property regardless of the guilt or innocence of the owners.

I wonder what happened to this grand plan from 2016?

The Mexicans didn't buy us a wall and drug warriors don't seem to have looted the populace enough to avoid shutting down a bit of the government.

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  • 2 weeks later...
41 minutes ago, HuronBouy said:

I am against seizures 

We are talking epilepsy here right?
 

No, but if you're against that kind of seizure, there's a stupid government policy for you to oppose in that area as well.

On 6/27/2018 at 5:41 AM, Contumacious Tom said:

 

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2 hours ago, Steam Flyer said:

If they're "fighting" cops then they are no longer innocent.

By definition

-DSK

Got to disagree with you on that one. If a cop is acting in an illegal manner you're quite entitled to fight them.

Of course the wisdom of doing so is another matter - but that says nothing WRT innocence/guilt.

FKT

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43 minutes ago, Fah Kiew Tu said:
2 hours ago, Steam Flyer said:

If they're "fighting" cops then they are no longer innocent.

By definition

Got to disagree with you on that one. If a cop is acting in an illegal manner you're quite entitled to fight them.

Of course the wisdom of doing so is another matter - but that says nothing WRT innocence/guilt.

You gotta win the court case defining their behavior as illegal, first.

But yes, in principle I agree.

OTOH lying to cops and obstructing investigations and witness tampering etc etc doesn't fall under that category.

-DSK

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23 minutes ago, Steam Flyer said:

You gotta win the court case defining their behavior as illegal, first.

But yes, in principle I agree.

OTOH lying to cops and obstructing investigations and witness tampering etc etc doesn't fall under that category.

-DSK

Not sure lying to cops is an offence here in Australia. Might be; I've never needed to know.

Obstructing is an interesting one. Doing nothing can be obstruction. This is the old 'sins of omission' versus 'sins of commission' thing. I've a hard time with obstruction as a criminal matter if it's doing nothing. Too damn close to the Orwellian type societies for my liking.

Witness tampering is pretty clear-cut though.

FKT

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7 hours ago, Steam Flyer said:

You gotta win the court case defining their behavior as illegal, first.

You mean like this?

Not the only case of a no knock raid that ended with a cop shot and a homeowner not charged because he did nothing wrong.

But my post was more in reference to your original post than to actual physical confrontations.

On 1/28/2019 at 4:24 PM, Steam Flyer said:

I was really surprised at President Trump (as President he is of course the head of federal law enforcement) talking about "fighting back" against the various agencies and Mueller.

Who "fights back" against cops? Criminals. Pretty much by definition

Who fights against agencies? The Institute for Justice, on behalf of property owners whose stuff has been looted by drug warriors. Among other non-criminals.

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S Carolina Looting Update
 

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South Carolina police seized more than $17 million over a three-year period according to a comprehensive joint investigation by the The Greenville News and Anderson Independent Mail.

The news outlets scoured roughly 3,200 civil asset forfeiture cases across South Carolina. The results, the reporters say, "yielded a clear picture of what is happening: Police are systematically seizing cash and property—many times from people who aren't guilty of a crime—netting millions of dollars each year."

Nearly a fifth of the 4,000 people who had their property seized by South Carolina police between 2014 and 2016 were never arrested nor even charged with a related crime. Under typical civil asset forfeiture laws, police can seize cash, cars, houses, and other property suspected of being connected to criminal activity even if the owner is never convicted of a crime.

 

Hitting those evil drug kingpins where it hurts, in their yachts and penthouses, just like the drug warriors say. Or something.

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  • 2 weeks later...

Anticipating Timbs
 

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SCOTUS watchers highly expect that the Court will incorporate the Eighth Amendment, extending the U.S. Constitution's protections against excessive fines and fees to state laws and giving plaintiffs like Timbs a new line of attack against asset forfeiture, which has traditionally been fought on due process grounds.

At least one lawsuit has already been filed in anticipation of the forthcoming ruling. In December, Detroit resident Crystal Sisson filed a federal class-action civil rights lawsuit challenging the aggressive asset forfeiture program in Wayne County, Michigan.

Sheriff's deputies pulled over Sisson after they surveilled her entering a Detroit medical marijuana dispensary. After allegedly finding her with $10 worth of pot and discovering that she did not have a medical marijuana card, the deputies issued her a criminal citation and seized her 2015 Kia Soul.

 

Counting a whole class full of chickens before they hatch.

I understand wanting her car back. It shouldn't have been seized for her non-crime. But I think waiting might have been smarter. They're making arguments based on guesses of what the SCOTUS will do. I'm guessing they'll incorporate the 8th amendment but the way they do it and the language used might make a big difference in whether her arguments will work or not.

A class action makes it more complex. Who composes the class?

A good can of worms to open later IMO. But good luck to them.

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15 hours ago, Nailing Malarkey Too said:

I''m not a Cruz fan but I give him props for this one. 

“The U.S. Government is currently seeking the criminal forfeiture of more than $14 billion in drug proceeds and illicit profits from El Chapo, the former leader of the Sinaloa drug cartel who was recently extradited to the U.S. to face criminal prosecution for numerous alleged drug-related crimes, including conspiracy to commit murder and money laundering,” Cruz added.

Wisconsin Rep. Jim Sensenbrenner proposed similar legislation in the U.S. House of Representatives, which would use money seized from drug cartels to fund a border wall.

“This is a way to fulfill the president’s desire to have Mexico pay for the wall,” Sensenbrenner, a member of the Judiciary Committee, told the Washington Examiner. “Having the money seized from Mexican drug cartels would mean that the bad Mexicans would end up paying for the wall, and the bad Mexicans have been terrorizing the good Mexicans with crime and kidnappings and murders within Mexico itself.”…

By "money seized from drug cartels" what drug warriors actually mean, by and large, is property looted from Americans who were never charged with a crime.

Bravo, drug warriors, roll in the loot!

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Will loot from the stupid drug war fund the stupid wall?
 

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Among other sources, the Trump administration reportedly plans to use $600 million from the Treasury Department's Asset Forfeiture Fund, which holds revenues from asset seizures by the Internal Revenue Service (IRS) and agencies under the Department of Homeland Security, such as Customs and Border Protection (CBP) and Immigrations and Customs Enforcement (ICE).

Since 2014, ICE and CBP have seized more than $4 billion worth of property that was allegedly used in crimes, according to government records obtained by Splinter. Among the seized assets were human remains. The Treasury Department's forfeiture fund had a balance of $2.2 billion as of fiscal year 2017.

But it's unclear how many of those cases were criminal forfeitures, in which the property was forfeited after the federal government obtained a criminal conviction against a defendant; and how many were civil forfeitures, wherein the government seized property on the mere suspicion that it was connected to criminal activity.

Unlike the Justice Department, which makes its asset forfeiture database available to the public, the Treasury Department has stonewalled public records requests for its database. In 2016, the Institute for Justice, a libertarian-leaning public interest law firm, filed a Freedom of Information Act lawsuit against the Treasury Department and CBP to obtain their forfeiture databases.

 

Well, whadaya know? It's a question of interest to those annoying libertarians at the Institute for Justice.

I think they might be importunate. Thanks for the word, milliken.

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Timbs v Indiana Decided

Quote

Earlier today, the Supreme Court issued its ruling in Timbs v. Indiana. The decision is potentially a major victory for property rights and civil liberties. The key questions before the Court are whether the Excessive Fines Clause of the Eighth Amendment is "incorporated" against state governments and, if so, whether at least some state civil asset forfeitures violate the Clause. The justices answered both questions with a unanimous and emphatic "yes." 

And that's what happens soon after multiple Justices get the whole room to laugh at your argument.

Glad to see another successful assault on the American Way by those pesky libertarians at IJ.

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I wonder if dogballs is winning?

 

You've chosen to ignore content by Contumacious Tom. Options

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SCOTUSBlog coverage of Timbs decision
 

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Timbs asked the Supreme Court to weigh in, and today the justices held that the Eighth Amendment’s ban on excessive fines does indeed apply to the states. In an opinion by Justice Ruth Bader Ginsburg, the court seemed to regard the basic question before it as an easy one. The justices explained that the “historical and logical case for concluding that” the ban on excessive fines applies to the states through the 14th Amendment – which bars states from depriving anyone “of life, liberty, or property, without due process of law” – is “overwhelming.”

Even Indiana, the court noted, did not seriously challenge whether the ban on excessive fines applies to the states. Instead, it argued that the ban applies only to payments imposed as punishment and does not apply to this case, which involves the forfeiture of property used to violate the law, a procedure that was not traditionally regarded as a fine. But because the state did not make that argument in the Indiana Supreme Court, the U.S. Supreme Court emphasized today, the court would not consider it. And it doesn’t matter whether the ban on excessive forfeitures of property was traditionally regarded as fundamental, the court explained; what matters is that the broader right to be protected from excessive fines has been regarded that way.

Justice Clarence Thomas agreed that the ban on excessive fines applies to the states, but he would have reached that result in a different way. Instead of relying on the due process clause of the 14th Amendment, Thomas would hold that the ban on excessive fines is “one of the ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment.” Justice Neil Gorsuch echoed that thought in a separate opinion, but (unlike Thomas) he joined the court’s opinion, stressing that “nothing in the case turns on that question, and, regardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment.”


 

Oh dear. Now that Scalia is dead, Thomas seems to feel it's safe to wander into the P&I swamp.

He's right that those words should mean something instead of nothing. But if they did? Scalia is probably right that the resulting mess would take decades to sort out and the sorted result would be... where we land with the due process analysis anyway.

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People were wondering in philly's thread who had help from staff in drafting their opinions.

My guess: Ginsburg, because nobody that old could write that much, and Thomas, because of the research required.

But probably not Gorsuch, at least not much. He joined Ginsburg's opinion and wrote separately to concur as well. It's not that often they say something in only one paragraph. Here it is:

Quote

 

JUSTICE GORSUCH, concurring.

The majority faithfully applies our precedent and, based on a wealth of historical evidence, concludes that the Fourteenth Amendment incorporates the Eighth Amendment’s Excessive Fines Clause against the States.  I agree with that conclusion.  As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges orImmunities Clause, rather than, as this Court has long assumed, the Due Process Clause.  See, e.g., post, at 1–3 (THOMAS, J., concurring in judgment); McDonald v. Chicago, 561 U. S. 742, 805–858 (2010) (THOMAS, J., concurring in part and concurring in judgment) (documenting evidence that the “privileges or immunities of citizens of the United States” include, at minimum, the individual rights enumerated in the Bill of Rights); Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understand-ing of the Fourteenth Amendment in 1866–67, 68 Ohio St.L. J. 1509 (2007); A. Amar, The Bill of Rights: Creation and Reconstruction 163–214 (1998); M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill ofRights (1986).  But nothing in this case turns on that question, and, regardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment.

 

Hah!

That's a very wordy way of saying, "Justice Thomas is right but there's no way I'm joining his opinion to say so, so I'll just reference it."

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1 hour ago, Bent Sailor said:
11 hours ago, phillysailor said:

First off, this is a debate forum, and Toms posts are often much better researched than the average in that they contain links to relevant court precedents.

I don't disagree (entirely). However, being "better researched than average" is not mutually exclusive with "being disingenuous, dishonest, trolling, and/or off-topic".


4 pages of material here that's mostly on topic and no one has pointed to any dishonesty.

Philly is able to detect the lack of substance in allegations like yours because, well, no one has pointed to any dishonesty.

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19 minutes ago, phillysailor said:

all well and good, but what does "Contumacious" mean?

contumacious: (adjective) <ARCHAIC•LAW> (especially of a defendant's behaviour) stubbornly or wilfully disobedient to authority.

Another definition worth noting is the following.

Sealioning: (verb) a type of trolling or harassment which consists of pursuing people with persistent requests for evidence or repeated questions, while maintaining a pretence of civility.

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7 hours ago, phillysailor said:

all well and good, but what does "Contumacious" mean?

It won't matter for long because milliken gave me a much better name.

As for Bent's continued allegations, I'm glad you're susceptible to evidence and so don't believe them.

Have I really been "persistent" in requesting that someone, anyone, show me a lie in this thread? I thought this only the second request. Not all that Importunate.

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17 hours ago, SloopJonB said:
21 hours ago, phillysailor said:

Hmmm. Not so fast.

First off, this is a debate forum, and Toms posts are often much better researched than the average in that they contain links to relevant court precedents.

Secondly, a sign of intelligence and creative thinking is the ability to hold two contradictory thoughts in one’s mind at the same time. I’m often at odds with myself, and occasionally use this forum to try out opinions, and modify them based on debate. 

(Sidenote, right now I’m wondering where I’m gonna end up on the issue of repatriating US ISIS followers)

I’m frequently annoyed by Tom’s incessant yammering on 2nd Amendment rights and such, but he isn’t toxic about supplying contradictory arguments, merely annoyingly steadfast and observant to niggling flaws in arguments.

Call him the fucking rock in the middle of the channel, if you will. He’s part of the landscape & not going anywhere, and he’s not boring or puerile. No memes for him, he’d rather fight you with court opinion.

Please lay off the anti-Tom rhetoric, for at times, are we not all Contimacious? (what the heck does that mean, anyways?)

You don't post 6, 8, 10 posts in a row on the same thread with no response.

dogballs, NG, J28 and a couple of others are the only ones.

It smacks of arguing with oneself.


It smacks that way to non-readers like yourself, who would have no way of knowing that the posts were about the topic, not arguments with myself.

I can't help it if others are not interested in the political topics that interest me, nor can I help it that they're only interested in gossip.

But keep proudly displaying your ignorance and whatever you do, don't read any of those posts to learn anything about the political issue.
 

Gossip is MUCH more important.

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1 hour ago, Contumacious Tom said:

As for Bent's continued allegations, I'm glad you're susceptible to evidence and so don't believe them.

Yet. Takes you a couple of months to get bored with mostly reasonable conversation before you piss off everyone else that gives you a chance. I'm comfortable philly will get there too. He's not stupid and you don't change your spots. 

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Just now, Bent Sailor said:

Yet. Takes you a couple of months to get bored with the reasonable discussion before you pissed off everyone else that gave you a chance too. I'm comfortable philly will work it out. He's not stupid and you don't change your spots. 

Evidence of a lie from me in this thread would help your case, if one could be found. But I don't change my spots so none can be found.

 

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30 minutes ago, Contumacious Tom said:

Evidence of a lie from me in this thread would help your case, if one could be found. But I don't change my spots so none can be found.

Imagine my experience of you was drawn solely from this thread.

Though you seem to misunderstand what I'm doing. I'm not trying to win "my case". I am merely warning philly by explaining to him why people react to you the way they do. When it comes to proving what I say, I'll be leaving that to your actions. You won't be able to help yourself.

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28 minutes ago, Contumacious Tom said:

WARNING PHILLY:
A five year old thread has undetected lies that you haven't noticed in your nine years here! :lol:

54 minutes ago, Bent Sailor said:

Imagine my experience of you was drawn solely from this thread.

See, you're proving disingenuous already. Keep it up and, at this rate, you'll be done before the week is out. :lol: 

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Slate Cheers The Result

Without ever crediting the libertarians who made it happen.

Quote

“In short,” Ginsburg wrote, surveying this evidence, “the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming.” She also swatted down Indiana’s fallback argument that the clause does not apply to proceedings over an individual’s property, holding that these forfeitures still qualify as “fines” that trigger constitutional scrutiny.

That's the argument I referenced in the other thread. It would not be necessary to swat back that argument if Olsonist's understanding of the issue were accurate. It would never be made because a speeding fine and a civil asset forfeiture are fundamentally different.

10 hours ago, Olsonist said:

No, in neither case do you have to commit a crime. You've only legally committed a crime when a court has determined that. Until then you have the presumption of innocence. However, the point of a civil asset forfeiture is that it essentially diminishes that presumption of innocence. That's the same with a speed trap. These are the same.

No, they're really not.

Quote

In one sense, Ginsburg’s opinion is sweeping—it finally opens the federal courthouse door to victims of civil asset forfeiture, like Timbs, who believe they’ve been wronged. But Wednesday’s decision leaves some questions unanswered. The court has already ruled that when the federal government seizes money or property, the fine must not be “grossly disproportional to the gravity of [the] offense.” Presumably, this same standard now applies to the states. But when is a forfeiture grossly disproportionate? Does Indiana’s seizure of Timbs’ Land Rover meet this standard? Ginsburg didn’t say, instead directing the Indiana Supreme Court to evaluate the question. Prepare for a flood of litigation urging federal courts to determine when civil asset forfeiture crosses this constitutional line.

Probably not a yuge flood. The Institute for Justice only has so many lawyers and I expect interest in this issue will revert back to near zero very shortly.

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20 hours ago, Bent Sailor said:

See, you're proving disingenuous already. Keep it up and, at this rate, you'll be done before the week is out. :lol: 

So many opportunities to identify a single lie on any issue and you pass them all up every day and instead just attack with no substance.

It's almost like you got nothing.

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17 minutes ago, Contumacious Tom said:

So many opportunities to identify a single lie on any issue and you pass them all up every day and instead just attack with no substance.

It's almost like you got nothing.

So many chances to prove you aren't a disingenuous prick and you pass on them all every day and prove my point both honest & substantial.

It's almost like you just want attention, any attention, as long as someone is arguing with you.

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Just now, Bent Sailor said:

So many chances to prove you aren't a disingenuous prick and you pass on them all every day and prove my point both honest & substantial.

This thread is a pile of proof, until you can identify a disingenuous post.

Just identifying me as the poster will work on gossips who don't care about evidence. But there are people who are susceptible to evidence and have seen none, so...

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33 minutes ago, Contumacious Tom said:

This thread is a pile of proof, until you can identify a disingenuous post.

20 hours ago, Bent Sailor said:
21 hours ago, Bent Sailor said:

Imagine my experience of you was drawn solely from this thread.

See, you're proving disingenuous already. Keep it up and, at this rate, you'll be done before the week is out. :lol: 

I did so. I quoted what I said about it above as you seemed to miss it. Thanks though, your doubling down trying to play dumb is doing a great job convincing those who might otherwise be fooled for a little longer by your waffle. Appreciate the help.

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The Institute For Justice On Their Win In Timbs' Case

Summarizes issues already discussed (though misses important points about how terrible I am personally) but I found this picture interesting.

Timbs-Feature-Oct-300x188.jpg

It looks a lot like another iconic picture from one of their cases, also featuring the color pink.

susette%20kelo.jpg

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The Remaining Question: What's Excessive?
 

Quote

 

The Court did leave one crucial issue for future consideration by lower courts: the question of what exactly counts as "excessive" in the civil forfeiture context. That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today's decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal. But, hopefully, that will not prove to be the case.

In my view, the Timbs case itself should be fairly easy to decide on remand. In United States v. Bajakijian, a criminal forfeiture case, the Court ruled that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." The same approach could potentially be applied to civil forfeitures. It is hardly a precise standard, and it may often be hard to tell whether a forfeiture is "grossly disproportionate" or not. But Timbs seems clearly on the "gross" side of the line. The state of Indiana seized the defendant's brand new Land Rover LR2, a vehicle worth about $42,000, even though the maximum fine for his actual offense was only $10,000 - a very large disparity. But there are likely to be cases where things are much less clear.

 

I mentioned early on that Timbs was an unfortunate plaintiff because everyone agreed he was guilty of a crime.

That distinguishes him from a LOT of asset forfeiture victims, who are never accused of any crime. It's hard to use the maximum fine for the offense when there's no offense to reference.

Quote

NOTE: Timbs was represented by the Institute for Justice, a prominent public interest law firm, with which I have longstanding connections, and for which I have done pro bono work on other property rights cases. I did not, however, have any involvement in this case.

So the author is another Koch-$pon$ored propagandist and should be viewed as just another Trump cheerleader, as has happened on this forum, much to my amusement.

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That article also touched on the obsolete privileges and immunities clause:
 

Quote

 

Ginsburg's majority opinion was joined by a total of eight justices. In separate concurring opinions, Justices Clarence Thomas and Neil Gorsuch argue that "incorporation" should proceed under the Privileges or Immunities Clause of the Fourteenth Amendment, rather than under the Due Process Clause (the vehicle used by the Court for the last century or more). Thomas' opinion reprises many of the arguments he made for this theory in his insightful concurring opinion in McDonald v. City of Chicago (2010), the case that incorporated the Second Amendment against the states.

The idea of reviving the largely moribund Privileges or Immunities Clause enjoys widespread (though not universal) support from legal scholars across the political spectrum. Supreme Court justices have been much more wary. It is notable that Thomas' quest to bring it back now has a supporter in Gorsuch, whereas previously he was largely alone. But, as he is still three votes short, it seems unlikely that Thomas will succeed in his effort anytime soon.

In the meantime, it is clear that both Thomas and Gorsuch (like the other justices) agree that the Excessive Fines Clause should apply to the states, and that the Clause constrains civil asset forfeitures. Thomas is in fact a longtime advocate of stronger judicial review of forfeiture cases.

 

And following that last link leads to some interesting comments from Thomas on a denial of cert in another case.
 

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These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. Id., at 53–54; Sallah, O’Harrow, & Rich, Stop and Seize, Washington Post, Sept. 7, 2014, pp. A1, A10. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards,which may be less susceptible to forfeiture. And they aremore likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.

 

III

The Court has justified its unique constitutional treatment of civil forfeiture largely by reference to a discrete historical practice that existed at the time of the founding.See, e.g., Bennis v. Michigan, 516 U. S. 442, 446–448 (1996). “‘English Law provided for statutory forfeitures of offending objects used in violation of the customs and revenue laws.’Austin, supra, at 612 (quoting Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 682 (1974)). This practice “took hold in the United States,” where the “First Congress passed laws subjecting ships and cargos involved in customs offenses to forfeiture.” 509 U. S., at 613. Other early statutes also provided for the forfeiture of pirate ships. United States v. Parcel of Rumson, N. J., Land, 507 U. S. 111, 119 (1993) (plurality opinion). These early statutes permitted the government to proceed in rem under the fiction that the thing itself, rather than the owner, was guilty of the crime. See Calero-Toledo, supra, at 684–685; Act of Aug. 4, 1790, §67, 1 Stat. 176–177. And, because these suits were in rem rather than in personam, they typically proceeded civilly rather than criminally. See United States v. La Venge-ance, 3 Dall. 297, 301 (1796).

In the absence of this historical practice, the Constitution presumably would require the Court to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation. See Bennis, supra, at 454 (THOMAS, J., concurring) (“One unaware of the history of forfeiture laws and 200 years of this Court’s precedent regarding such laws might well assume that such a scheme is lawless—a violation of due process”). I am skeptical that this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice, for two reasons.

 

The justification for holding ships was pretty straightforward: they might leave.

 

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23 hours ago, Contumacious Tom said:

The justification for holding ships was pretty straightforward: they might leave.

And their owners might already be elsewhere. More from Thomas:

Quote

First, historical forfeiture laws were narrower in most respects than modern ones. Cf. James Daniel Good, 510 U. S., at 85 (THOMAS, J., concurring in part and dissenting in part) (noting that “ambitious modern statutes and prosecutorial practices have all but detached themselves from the ancient notion of civil forfeiture”). Most obviously,they were limited to a few specific subject matters, such as customs and piracy. Proceeding in rem in those cases was often justified by necessity, because the party responsible for the crime was frequently located overseas and thus beyond the personal jurisdiction of United States courts. See Herpel, Toward a Constitutional Kleptocracy:Civil Forfeiture in America, 96 Mich. L. Rev. 1910, 1918– 1920 (1998); see also id., at 1925–1926 (arguing that founding-era precedents do not support the use of forfeiture against purely domestic offenses where the owner is plainly within the personal jurisdiction of both state and federal courts). These laws were also narrower with respect to the type of property they encompassed. For example, they typically covered only the instrumentalities of the crime (such as the vessel used to transport the goods), not the derivative proceeds of the crime (such as property purchased with money from the sale of the illegal goods).

In addition to being a narrow practice in the past, there was this:

Quote

Indeed, as relevant in this case, there is some evidence that the government was historically re-quired to prove its case beyond a reasonable doubt. See United States v. Brig Burdett, 9 Pet. 682, 690 (1835) (“The object of the prosecution against the Burdett is to enforce a forfeiture of the vessel, and all that pertains to it, for a violation of a revenue law. This prosecution then is a highly penal one, and the penalty should not be inflicted, unless the infractions of the law shall be established beyond reasonable doubt”).

Oh my, what a curious notion. A conviction before a punishment?

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Brett Kavanaugh Flunks His First Test as an Originalist
 

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...

The Supreme Court agreed with that assessment and ruled unanimously in favor of Tyson Timbs, holding that the Excessive Fines Clause does indeed apply against the states.

But the Court was not unanimous in its reasoning. The majority opinion, written by Justice Ruth Bader Ginsburg and joined by Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh, held that the Excessive Fines Clause is "incorporated by the Due Process Clause of the Fourteenth Amendment."

Writing separately, Justice Clarence Thomas explained that while he agreed that the ban on excessive fines should be applied against the states, he "cannot agree," as a matter of originalism, "with the route the Court takes to reach this conclusion. Instead of reading the Fourteenth Amendment's Due Process Clause to encompass a substantive right that has nothing to do with 'process," Thomas wrote, "I would hold that the right to be free from excessive fines is one of the 'privileges or immunities of citizens of the United States' protected by the Fourteenth Amendment."

This is not a new position from Thomas. In the 2010 case of McDonald v. Chicago, which asked whether the Second Amendment applied against the states, Thomas spelled out his originalist interpretation of the Privileges or Immunities Clause in a lengthy concurring opinion. "I believe the original meaning of the Fourteenth Amendment offers a superior alternative," Thomas wrote, "and that a return to that meaning would allow this Court to enforce the rights that the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed." It is no surprise that Thomas re-upped that interpretation in Timbs.

One key difference from 2010 is that Thomas now has a bit of company on the bench. "As an original matter," Justice Neil Gorsuch wrote last week in his own solo Timbs concurrence, "I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment's Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause." But, because "nothing in this case turns on that question," Gorsuch continued, he said he was willing to go along with the majority's non-originalist holding this time around.

Thomas and Gorsuch are both self-avowed originalists, so it is fitting that they would either explain (Thomas) or at least acknowledge (Gorsuch) their heterodox views in a major constitutional case such as Timbs. For an originalist judge, it is often an uphill battle, and one of the best ways to gain ground in the war of ideas is by writing a persuasive opinion, typically penned in concurrence or dissent. How else are you going to change minds and set the foundation for winning future cases?

Which brings us back to Brett Kavanaugh. Where, you may be wondering, was the Court's newest self-described originalist in last week's Timbs legal wrangling? Did Kavanaugh also explain where he stands on the crucial debate over the original meaning of the 14th Amendment? Did he say whether or not he agrees with Thomas? Did he perhaps lay out a different originalist take of his own? Alas, Kavanaugh did none of those things. He did not bother to weigh in at all.

If Brett Kavanaugh is a committed originalist, you would never know it based on his complacent behavior in Timbs v. Indiana.

 

Kavanaugh seemed a lot more controversial at nomination time but Gorsuch is the real subversive.

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Michigan Considering Reform
 

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The Michigan Senate passed a civil asset forfeiture reform bill last week that would require police to obtain a criminal conviction to seize assets valued under $50,000, or consent from the owner to relinquish the property. The bill is now being considered by the state house.

Jarrett Skorup, a researcher at the Mackinac Center for Public Policy, a free-market think tank, used a public records request to get the underlying data the state used to prepare its annual reports. Skorup's data showed that in 2017, the latest year for which information is available, Michigan police seized $13 million in cash and property—everything ranging from guns to TVs to Playstation 4s to grow lights for marijuana. Bowling balls, jumper cables, power tools, and Beats headphones also made the list.

Those spreadsheets also showed that police, particularly in Wayne County, Michigan, seized thousands of cars in 2017 under the auspices of marijuana enforcement. Of the more than 2,500 vehicles seized, 473 were not accompanied by a criminal conviction, and in 438 of those cases, no one was even charged with a crime, according to Skorup's data. In 10 cases, the cars were seized under suspicion of a drug violation, even though the records say police didn't find any drugs.

"The vehicles are worth very little, typically around $1,000 or $2,000," Skorup says. "These are very likely low-income people, people that can't afford to sit around without a vehicle for three weeks or afford an attorney to go challenge it."

 

What actually happens doesn't look anything like the "we're going to take drug dealers' mansions and jets" rhetoric that is used to sell these policies to the public.

It looks a lot more like shaking down poor people to get more money for police departments without raising taxes.

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From the wall thread:

14 hours ago, Sol Rosenberg said:

Womp womp.

https://www.politico.com/story/2019/02/28/lamar-alexander-trump-national-emergency-1196748?fbclid=IwAR0R_lUw3EfDP86mPhxhArjeM6OYCA-TwKUifeBBO5oSb_FVYGiRgnKd0jE

Key GOP senator offers ultimatum to Trump on border emergency

Sen. Lamar Alexander urged the president to withdraw his national emergency declaration or face a Republican revolt.


Hmm...

Quote

“He’s got sufficient funding without a national emergency, he can build a wall and avoid a dangerous precedent,” Alexander told reporters afterward, referring to billions from a drug forfeiture fund and anti-drug smuggling money at the Defense Department. “That would change the voting situation if he we were to agree to do that.”

Drug warriors don't consider the drug war looting to be any kind of dangerous precedent. It's a revenue precedent from their perspective, so what if some possibly-guilty people lost their stuff?

And if the drug war loot also becomes wall-building loot, I guess it will be that much harder to convince TeamR drug warriors to get their grabby hands out of the pot.

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Drug War Looting Updates
 

Quote

 

The district attorney in Lancaster County, Pennsylvania used asset forfeiture revenues intended for drug enforcement to lease a 2016 Toyota Highlander, local newspaper LNP reports

...

The report is yet another instance of local prosecutors, drug task forces, and law enforcement using asset forfeiture revenue as a slush fund. Under civil forfeiture laws, police can seize cash and property suspected of being connected to criminal activity, even if the owner is never convicted or even charged with a crime.

In Macomb County, Michigan, county officials have launched an audit of the local prosecutor's office after a successful public records lawsuit revealed more than $100,000 in questionable expenditures from the asset forfeiture fund, including using the funds for office furniture, birthdays, and retirement parties.

In Illinois, former La Salle County state's attorney Brian Towne is facing criminal charges for misconduct and misappropriating public funds after he allegedly spent asset forfeiture funds on an SUV, WiFi for his home, and local youth sports programs. Town created his own highway interdiction unit and asset forfeiture fund for his office, an unusual move that the Illinois Supreme Court later ruled was illegal.

A 2016 Department of Justice Inspector General audit found that an Illinois police department spent more than $20,000 in equitable sharing funds on accessories for two lightly used motorcycles, including after-market exhaust pipes, decorative chrome, and heated handgrips.

And who could forget the Georgia sheriff who purchased a $90,000 Dodge Viper with forfeiture funds for the department's DARE program? Or the other Georgia sheriff who bought a $70,000 Dodge Charger Hellcat (707 horsepower and tinted windows) with forfeiture funds?

 

Who says you can't win a stupid war?

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8th Circuit Correction

  • Quote

    Feds: $579k cash seized at roadside stop is drug money. Trucking company: It's not drug money. We want it back. Eighth Circuit (last year): No can do. This circuit's precedent says you have to explain in detail how you came by the money when you file initial paperwork to challenge a civil forfeiture—or the money is automatically forfeited. Eighth Circuit (en banc): Our precedent was wrong. It's enough just to assert ownership. Producing documentation comes later.

     

That's nice.

From the en banc decision:

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This case arises from a traffic stop conducted by the Arkansas State Police inSeptember 2014. A state police corporal found two boxes containing $579,475.00 in the cab of a tractor trailer. The government sought to forfeit the money in the district court on the ground that it was“ (1) money intended to be furnished in exchange for a controlled substance; (2) proceeds traceable to such an exchange; and (3) money used and intended to be used to facilitate a violation of the Controlled Substances Act.”

Even nicer would be requiring the government to PROVE a couple of those three things.

Once the funds are PROVEN to be traced to drug activity, any other explanation is moot.

"That's a lotta cash. Must be drug cash." <-- (not proof, if you're wondering)

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The Next Salvo
 

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If properly applied, the concept of salvo contenemento should offer major protection for Americans’ homes and cars, and against heavy fines, especially for the poor. Yet before the Timbs case, only once in its 229-year history had the Supreme Court rejected a fine or forfeiture for violating the excessive-fines clause: United States v. Bajakajian, in 1998, which saw Justice Clarence Thomas side with the Court’s liberal wing against a ludicrously high criminal forfeiture brought by the Clinton administration.

Hosep Bajakajian, an Armenian immigrant who owned several gas stations in Hollywood, was headed to Cyprus with his family in 1994 to pay back a debt. But while they were waiting for their flight at LAX, customs investigators, who used dogs specially trained to sniff out cash, found more than $230,000 in the family’s checked luggage. (They would later find another $127,000 in the Bajakajians’ carry-on bags.)

Agents told Bajakajian that under federal law he was required to report if he were transporting more than $10,000 in cash out of the country. Bajakajian had said that he was only carrying $8,000 and that his wife had $7,000. Ironically, Bajakajian later said he failed to report because he was afraid that government agents in Cyprus might take the cash. A federal judge would later note that Bajakajian had developed a “distrust of the government” from growing up as an Armenian in Syria.

Bajakajian was arrested and pleaded guilty to one charge of failing to report, which at the time carried a maximum $5,000 fine. But the federal government wanted to claim all of the cash he was carrying in his checked and carry-on luggage—$357,144 in total—even though none of his cash was linked to any criminal activity.

Ultimately, his case made it to the U.S. Supreme Court. Writing for the majority, Justice Thomas noted that the Court “has never actually applied the Excessive Fines Clause” and that the text of the clause and its history shed little light on “just how proportional to a criminal offense a crime must be.” So the justices had to create a new standard, which they centered around “the principle of proportionality.”

“The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish,” Thomas wrote.

 

The article also goes into the forfeiture of a woman's home and car because her son sold some weed.

The home and car were worth less than the $80k maximum fine, causing courts to initially uphold the seizure.

The counter argument, based on salvo contenement suo, was basically, "But she needs her home and car!" A practical argument and it won.

Had she been a whole bunch richer, and that was just a vacation home and a spare car, presumably the level of constitutional protection would have been different.

This part of the article doesn't make sense:

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Louis Rulli, a law professor at the University of Pennsylvania, has sharply criticized courts and prosecutors that “want to reduce the excessive-fines clause to a mathematical comparison between” the maximum legal amount for a criminal fine and the market value of the personal property. As Rulli pointed out in a 2017 law-review article, accepting this framework would mean that “the Eighth Amendment’s protection will turn mostly on the [property’s] market value.” That would leave lower-income Americans far more vulnerable to abuses of the state. It would also lead to some perverse results, since under that model, “the very same underlying criminal conduct results in constitutional protection for wealthy families with expensive homes while denying similar protection to families of modest means.”

Huh? Seems to me that considering how much a person needs the assets would provide more protection for poor people, as in the example above when it's your main home vs your vacation home.

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Way To Go, Arkansas!
 

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The bill, S.B. 308, passed the Arkansas Senate by a unanimous vote last month. On Wednesday, the bill similarly sailed through the Arkansas House by a vote of 93-0. If the bill is signed into law by Gov. Asa Hutchinson, Arkansas will join four three states—North Carolina, New Mexico and Nebraska—that have severely curtailed or abolished asset forfeiture.

The new law would require prosecutors to obtain a criminal conviction to forfeit property. There are a list of exceptions, however, including if the property owner is deceased, deported, flees the jurisdiction or fails to challenge the forfeiture, or if the property is abandoned.

 

Wow. Unanimous in both houses. The drug war's cash cow is taking a serious beating lately.

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Way to go, Minnesota Supreme Court!

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This week, the Minnesota Supreme Court ruled that property owners who assert their innocence are entitled to a prompt hearing after their property is seized. Police seized Helen Olson's car after a traffic stop, and prosecutors kept it for 18 months without giving Helen (who wasn't in the car when it was taken) an opportunity to seek judicial review of the seizure. Not good enough! Said the court: "Due process is not satisfied by a rule that allows a person's property right to turn on the whim of a prosecutor." IJ filed an amicus brief urging the court to take this course of action. Says IJ attorney Jaimie Cavanaugh: "This decision is a victory for the rights of Minnesotans who have done nothing wrong but still see law enforcement seize and hold their cars, cash or other property for months or years. It only makes sense that innocent owners should be granted a hearing within days of law enforcement seizing their property. Because of this result, there will now be additional scrutiny on law enforcement practices that amount to policing for profit."

Policing for profit seems to be on the ropes these days. That's a good time to hit faster and harder.

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  • 2 weeks later...
14 minutes ago, bowman81 said:

He paid a bribe I mean ummm fine for his release. 

 

"After reviewing all of the facts and circumstances of the case, including Mr Smollett's volunteer service in the community and agreement to forfeit his [US$10,000] bond to the City of Chicago, we believe this outcome is a just disposition and appropriate resolution to this case."

https://mobile.abc.net.au/news/2019-03-27/empire-actor-jussie-smollett-has-charges-dropped/10943232

 


Hmm...

Forfeiture of assets without any conviction.

I sure as heck wouldn't agree if I were innocent.

Perhaps someone should give Mr. Smollett the Institute for Justice's phone number.

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7 minutes ago, hasher said:

In Georgia some prosecutors used private firms on forfeiture cases and the lawyers took a percentage.  Indiana too.  https://reason.com/archives/2010/08/16/the-governments-license-to-ste

Apparently outlawed.  https://www.bernardbrody.com/court-of-appeals-bans-contingency-fees-to-special-prosecutors-in-asset-forfeiture-cases/


Interesting. Unlike eminent domain cases, asset forfeiture cases often involve amounts of money way too small to interest a lawyer who does not work for the Institute for Justice.

The Reagan administration said we were going to get all the yachts and jets from those rich drug dealers, but what we really get is a few thousand bucks from a landscaper or some such.

After losing his few thousand bucks, he can pay a lawyer by selling his equipment maybe.

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A New Version
 

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On Wednesday, Reps. Tim Walberg (R-MI), Jamie Raskin (D-MD), Thomas Massie (R-KY), Tony Cardenas (D-CA), Tom McClintock (R-CA), and Bobby Rush (D-IL) reintroduced the Fifth Amendment Integrity Restoration Act (FAIR Act), which would enact a sweeping overhaul of federal civil forfeiture laws. Under civil forfeiture, the government can permanently confiscate property without charging anyone with—let alone convicting them of—a crime. Worse, federal law even encourages law enforcement to forfeit property by letting the seizing agencies keep up to 100 percent of forfeiture proceeds.

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The FAIR Act would enact the following changes to federal civil forfeiture:

  • Ban the U.S. Department of Justice from retaining forfeiture proceeds and instead re-directs all forfeiture proceeds to the General Fund of the Treasury. In 1986, the DOJ’s Assets Forfeiture Fund took in $93.7 million in forfeiture revenue, but by 2018, annual deposits had topped $1.3 billion;
  • Abolish the “equitable sharing” program, which violates federalism principles and allows local and state law enforcement to collaborate with federal agencies and collect up to 80 percent of the proceeds, even if that would circumvent state restrictions. From 2001 to 2013, the DOJ distributed more than $4.7 billion in equitable-sharing money, according to a report by the Institute for Justice;
  • Shift the burden of proof from the property owner onto the government, restoring the presumption of innocence;
  • Raise the standard of proof in civil forfeiture proceedings from “preponderance of the evidence” (i.e. more likely than not) to “clear and convincing”;
  • Provide legal representation for those who cannot afford it in civil forfeiture proceedings;
  • Limit forfeiture for currency “structuring” only when funds in question are derived from an illegal source or used to conceal illegal activity, codifying a 2014 IRS policy change in response to documented abuses; and
  • Allow individuals and small business owners to request a prompt hearing to contest the seizure of their funds for alleged structuring violations.

Reforming civil forfeiture is the rare political issue that transcends party lines.

 

 

I'd say it briefly transcends party lines in rhetoric, as when Tyson Timbs got a brief flurry of attention, but the age of this thread and the fact that the proposals are just about the same as before shows the bipartisan sentiment about actually killing the drug war's cash cow.

This one is as likely to pass as previous ones for the same reason.

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