FAIR Act to Reform Asset Seizure Laws

[RedTuna]

Looks like the DC police department includes asset forfeiture in its future budgets.

https://www.techdirt.com/articles/20141116/11094529165/dc-police-department-budgets-its-asset-forfeiture-proceeds-years-advance.shtml

 

[Saorsa]

Looks like the DC police department includes asset forfeiture in its future budgets.

https://www.techdirt.com/articles/20141116/11094529165/dc-police-department-budgets-its-asset-forfeiture-proceeds-years-advance.shtml

Sounds like armed robbery or a mugging.

Half of the more than $5.5 million in cash seizures were for $141 or less, with more than a thousand for less than $20.

 

[Bumpy Water Bill]

I"m the furthest thing imaginable, from a libertarian, but on this issue, I am in agreement with Rand Paul... civil forfeitures without due process ought to be considered unconstitutional.

Of course it is unconstitutional! Explicitly and obviously so. However, in the absence of any existing legislation to the contrary, you, or the government, can do any sort of unconstitutional stuff you want to until the Supremes say you can't.

Here's the 4th amendment, from WIKI

The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[2]

I have never understood how this situation ever even came about in the first place, or how it has avoided scrutiny by the Supremes.

Has the "War on Drugs" or Homeland Security Act or some such managed to circumvent constitutional law without any pushback at all? Did Nixon, way back in 1971, issue some Executive Finding concerning the word "unreasonable"?

I have obviously missed something on this issue.

 

[Pertinacious Tom]

It goes back much further. The Brits are responsible. Here's a helpful word: deodand.

 

[Bumpy Water Bill]

Really? I just can't see how a house caused someone's death by having a kid living in it be in possession of $40 worth of smack.

 

[Pertinacious Tom]

The short answer is that the Royal Navy might not always have been able to catch the perpetrator of a crime, but they were pretty good at catching his ship. Being used in a crime, it was "guilty" property, so a case was brought against the ship. The owner had every opportunity to show up and try to prove his property innocent, but I guess few did, so the Royal Navy got a ship.

It's not that different today. Cop sees your money, surmises a crime has taken place, takes the money, and it goes to the seizing agency unless you prove there was no crime.

For a more complete picture, search: asset forfeiture deodand

 

[Bumpy Water Bill]

And then there are the 5th

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

and 14th (excerpt mine)

nor shall any State deprive any person of life, liberty, or property, without due process of law

amendments, with their Due Process clauses.

 

[Bumpy Water Bill]

The short answer is that the Royal Navy might not always have been able to catch the perpetrator of a crime, but they were pretty good at catching his ship. Being used in a crime, it was "guilty" property, so a case was brought against the ship. The owner had every opportunity to show up and try to prove his property innocent, but I guess few did, so the Royal Navy got a ship.

It's not that different today. Cop sees your money, surmises a crime has taken place, takes the money, and it goes to the seizing agency unless you prove there was no crime.

For a more complete picture, search: asset forfeiture deodand

Oh, I see. That does apply pretty closely.

So how is that implicitly or explicitly included in the US constitutional system?

 

[Pertinacious Tom]

Civil asset forfeiture, like criminal asset forfeiture, is a due process of law. Has been since before there was a USA.

 

[Bumpy Water Bill]

And besides, if you want to use Britlaw as a basis for asset seizure, what about the Magna Carta?

It says right here, in Section 39,

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

 

[Bumpy Water Bill]

Civil asset forfeiture, like criminal asset forfeiture, is a due process of law. Has been since before there was a USA.

Due process here refers, or is supposed to refer, to a hearing of some kind in which a judge says it's OK, thereby implicitly opening an avenue for appeal of the judge's ruling. Not to the seizure itself.

And besides, John Hancock and them said "Fuck the British, anyway!"

sort of... actually, they weren't really big on generalities. They listed out the "He Hases" against ol' Georgie without really offering much of a plan past "Let's whup 'em and toss 'em out!"

paraphrases mine.

 

[Bumpy Water Bill]

And besides, if you want to use Britlaw as a basis for asset seizure, what about the Magna Carta?

It says right here, in Section 39,

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

And then the Const. establishes some Law of the Land against seizure without due process. You can't argue that the seizure or forfeiture itself is the due process.

 

[Pertinacious Tom]

And besides, if you want to use Britlaw as a basis for asset seizure, what about the Magna Carta?

It says right here, in Section 39,

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

And then the Const. establishes some Law of the Land against seizure without due process. You can't argue that the seizure or forfeiture itself is the due process.

Actually, I can, but I'm not so inclined because I disagree.

But others can and have made that argument and they have won.

Hence the need for this thread and the reform that is being proposed.

 

[Bumpy Water Bill]

Sorry, I didn't mean "you" TR, I should have said "one". Also, I know that one can argue any side of any argument. I was being rhetorical, kind of like the "how can you say that!?!" falacy.

I think we're all in the same choir here, at least thus far.

Please elucidate about who has made that argument, that the seizure or forfeiture is itself the required due process? And how in the heck they are winning so far, legally?

Dhat make no sense!

 

[Bumpy Water Bill]

And has anyone actually argued deo dandum in the US, or is it kind of an implied common law principle? Besides, the deodand was actually forfeited to the church, not he crown, originally. Then came HenryVIII and all that.

And more besides, Deo Dandum was abolished in 1632. I looked it up. How late was the Royal Navy still using the principle? (-edit- Wiki says 1846. Big difference in modern relevance there!)

 

[Bumpy Water Bill]

From Cornell's legal site:

Courts have come to recognize that two aspects of due process exist: procedural due process and substantive due process. Procedural due process aims to ensure fundamental fairness by guaranteeing a party the right to be heard, ensuring that the parties receive proper notification throughout the litigation, and ensures that the adjudicating court has the appropriate jurisdiction to render a judgment. Meanwhile, substantive due process has developed during the 20th century as protecting those right so fundamental as to be "implicit in the concept of ordered liberty."

I guess if the hearing is before the same guy who authorized the seizure theft of your stuff, ie a district attorney, then you are basically screwed.

 

[Pertinacious Tom]

Sorry, I didn't mean "you" TR, I should have said "one". Also, I know that one can argue any side of any argument. I was being rhetorical, kind of like the "how can you say that!?!" falacy.

I think we're all in the same choir here, at least thus far.

Please elucidate about who has made that argument, that the seizure or forfeiture is itself the required due process? And how in the heck they are winning so far, legally?

Dhat make no sense!

I know, I was being silly.

The cases have funny names, like US vs $17,439.17.

The dollar amount is made up, but there are lots of those. In the (due?) process of such a case, the govt has to establish some probable cause to believe that the property is guilty of the crime it is being charged with. If the owner wants it back, he must prove in court that the property (not any person) is not guilty.

As an example, friends once offered a Bahamian a ride across to the US. They had known him for some time. When they arrived and checked in, Customs and Immigration wanted to send people over because of the foreigner aboard (you usually just called from a designated check-in dock at that time). The Bahamian dude heard this and ran! He disappeared into Miami.

The govt seized the boat. Everyone agreed that the boat had committed the crime of bringing in a guy who entered illegally. Proving that did not happen would be quite a trick, since everyone agreed it did happen.

No person was ever charged with anything. I know there was no intent to smuggle in an alien, but that is what happened and how could the govt know my friend's intent.

He tried for a while to get it back, to no avail. Finally, he quit trying to use lawyers and contacted a news program. 60 Minutes, I think. The resulting report would have looked very bad for the govt, so they gave him his boat back.

That was a long time ago, but it still pisses me off thinking about it. This guy's pic is in the dictionary next to "upstanding citizen" and our government stole his boat because he tried to help a friend and the friend betrayed him.

 

[Bumpy Water Bill]

I don't see how he ever got his boat back at all under current law and rulings. The boat's guilt was not disputed. Fear of embarrasment? That never stopped them before!

 

[Bumpy Water Bill]

Brandeis keeps popping up in these conversations on the 1st, 4th, and 5th around here. As far as property seizure goes, all I remember is about it's use as evidence, Weeks and Olmstead, for instance. I couldn't find anything much from Brandeis about the seizure itself, or how to get it back. Besides, the legal bar for use as evidence is a lot higher than the bar just to legally steal someone's stuff.

So, Brandeis. You got anything?

 

[Pertinacious Tom]

I don't see how he ever got his boat back at all under current law and rulings. The boat's guilt was not disputed. Fear of embarrasment? That never stopped them before!

That was it.

I recall that at about the same time they were doing a story about an air charter owner. He did not ask what was in his customers' briefcases. Because that's nosy behavior not tolerated by people who charter private planes. Cocaine was in there. His plane transported it. They took the plane. Public opinion was not on their side in that one, since no one believed that the pilot had any knowledge of the drugs. My friend's boat would have been a similar PR fiasco. Better to just give the occasional one that gets attention back and keep the gravy train rolling than to try to defend a politically indefensible gravy train.