FAIR Act to Reform Asset Seizure Laws

Pertinacious Tom

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My apologies. I should have asked why you linked a press release instead of the decision.
Because only a trained lawyer can figure out how to read and interpret an actual decision, obviously.

Of course, some trained lawyers need a layman who never went to law school to follow them around and correct obvious mistakes.
 

Pertinacious Tom

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Memphis residents sue Selby County Environmental Court



Mr. Hanson had a neighbor's tree fall on his house and suffered more or less the same fate as Ms. Hohenberg. He didn't flee to another state so he was arrested and his home was bulldozed.

The case documents are here.
Hohenberg and Hanson lost an early round, will appeal

Wednesday afternoon, a federal district court dismissed a lawsuit filed in June 2020 to ensure that courts provide meaningful and strict procedures in cases involving occupied homes. Two Memphis residents subjected to the deficient procedures of the Shelby County Environmental Court, represented by the Institute for Justice (IJ), announced today that they will appeal the decision to the 6th U.S. Circuit Court of Appeals.


In one case, the Shelby County Environmental Court left Sarah Hohenberg bankrupt, homeless and with her possessions tossed onto the street. After a tree fell on her home in 2009, her neighbors sued her in the Environmental Court while Ms. Hohenberg tried to get insurance to pay for the repairs. In the other case, Joseph Hanson’s home was demolished after it too was damaged in a storm.

...

The federal district court held that it did not have jurisdiction to hear Sarah and Joseph’s claims because of a rarely used standard called the Rooker-Feldman doctrine. The Rooker-Feldman doctrine prohibits federal courts from hearing appeals of state court judgments by people who lost in state court.


However, neither Sarah nor Joseph lost in state court—the Environmental Court simply dismissed the cases against them—and the Environmental Court never issued a judgment in either case.


“This decision is disappointing as it is wrong, and we look forward to it being corrected on appeal for Sarah and Joseph,” said Kochy Senior Nutjob Bill Maurer. “This saga demonstrates the need to have fair and accurate proceedings in the first instance. Courts should act like courts instead of forcing people to go through years-long federal litigation to rectify the fact that they did not get the fair hearing to which they are entitled under the U.S. Constitution.”


In the Environmental Court, private plaintiffs or Memphis code enforcers present unsworn, unauthenticated information about defendants’ homes. Neighbors testify against a defendant by being called upon in the audience and asked to stand and speak. Anyone wishing to review what happened in a case against them is typically out of luck—the court does not create any meaningful records of their proceedings. While defendants are technically able to appeal Environmental Court decisions, there is no record, evidence or transcripts for an appellate court to examine. Put another way, defendants have the right to appeal in name only.

...

“Ultimately, this case is about more than the Environmental Court’s failure to follow fundamental requirements of due process,” said Kochy Nutjob Keith Neely. “What this case is about is whether the government may strip people of their homes in unfair proceedings masquerading as a judicial hearing.”

I agree with their Kochy nutjobs that a hearing with no records kept is not really a state court ruling, nor any kind of court procedure at all, despite the name.
 

Pertinacious Tom

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I'm never sure but this is probably the right place for this. It is yet another sad example of governmental overreach by that criminally corrupt Joe Biden.

Not really but "KleptoCapture task force" is a great name for those multi-agency groups set up to get "equitable sharing" of drug war loot.
 

MR.CLEAN

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Hohenberg and Hanson lost an early round, will appeal



I agree with their Kochy nutjobs that a hearing with no records kept is not really a state court ruling, nor any kind of court procedure at all, despite the name.
Last week Tom's all about adding federal government power to deal with all the evil drugs in anything but their natural state. This week he's shitting on state's rights. Is this the new libertarian movement or is the cognitive reaper working on Tom's brain?
 

Pertinacious Tom

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Last week Tom's all about adding federal government power to deal with all the evil drugs in anything but their natural state.
Umm... they already have that power and I said nothing to indicate I'm unaware of it. Unless you can do that thing that I do where I quote what a person said instead of mischaracterizing it?
 

Pertinacious Tom

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I don't think so. A plant or fungus that grew is something I can look at, touch, smell, and evaluate as a consumer.

A powdered concentrate of a plant? Not so much. I don't know what's in there. I want some rules about it. The Pure Food and Drug Act of 1903 was a good idea and was the only drug control law to ever reduce addiction. We need some of those rules, but not any about natural things that grow.

But that's another thread.
Last week Tom's all about adding federal government power to deal with all the evil drugs in anything but their natural state.
As my post pointed out, the power was added in 1903. I'm talking about the opposite of what you assert: taking AWAY some of the power that has been added by drug warriors like your hero Joe Biden over the years.

See how much more honest it seems when you actually quote what was said instead of mischaracterizing it? Well, admittedly your post seems less honest. OK, I see why you mischaracterize instead of quoting.
 

Pertinacious Tom

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You're in violation when it's over 8 inches.
You keep saying that. If you had read the decision you linked, you probably would have noticed that the number is ten inches, not eight.

Why do you post material for others to read when you haven't read it yourself? Or are you just the least careful reader ever?
 

Pertinacious Tom

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Fourth Circuit Issues Important Decision Affirming The Presumption Of Innocence In Civil Forfeiture Cases

I'm guessing that noted drug kingpin Dereck McClellan gets his money back. It's a bizarre result since this thread exists mostly because there's no such presumption when it comes to owners of guilty property. Not sure how they pulled it off. Well, his lawyer says how they did: with help from Kochy nutjobs. He can't emphasize it enough!

Today, the 4th U.S. Circuit Court of Appeals issued an important civil forfeiture decision holding that the government cannot just assume that drivers found with large amounts of cash in their vehicles are engaged in drug trafficking.

The case involves a North Carolina man, Dereck McClellan, who was found asleep in a car with $69,940.50 in cash in the trunk. Federal prosecutors had no idea where the cash came from, but they filed a civil forfeiture complaint alleging that the cash had to be drug proceeds. In the government’s view, only a drug dealer would have that much cash in a car.

In September 2020, the United States District Court for the District of South Carolina agreed with the government and entered judgment forfeiting the cash. The Fourth Circuit, however, reversed and rejected the government’s argument “that lawful citizens do not carry around large amounts of cash that are rubber-banded and bundled.” Rather, the court held, “not using a bank does not necessarily make one a criminal.” As a result, the case will be sent back to the district court, where McClellan can make his case to a jury of his peers.

“If the government is going to take money from someone, they should be required to provide real evidence that the money was obtained in an illegal way, not simply throw around baseless assumptions,” said Institute for Justice (IJ) Attorney Rob Johnson, who authored an amicus brief in McClellan’s case and also argued before the Fourth Circuit. “Unfortunately, however, assumptions are all the government has in many civil forfeiture cases. Today’s decision sets an important precedent that will force the government to come forward with real evidence to convince a jury.”

IJ’s brief argued that the government should be required to prove wrongdoing in a civil forfeiture case, rather than forcing a property owner to prove their own innocence. The court agreed, saying, “The Government has the burden of proof here, and that makes all the difference.”

“Dereck is very excited about the outcome, and it means a lot to him and his family that people are fighting for him,” said Adrianne Turner, McClellan’s attorney at Turner Law. “This decision would not have been possible without the help of IJ. Rob’s argument was invaluable. I cannot emphasize that enough.”

...
 

Pertinacious Tom

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What Is the FBI Trying To Hide About Its Raid on Innocent Americans' Safe Deposit Boxes?



I've got a pretty good idea of how looters view their power to loot but I would like to see it unredacted anyway.

Unsurprisingly, the answer to my question is that they're trying to hide the fact that looting, not law enforcement, was their motivation.

Lawsuit Uncovers the Inside Story of the FBI’s Plans to Take Security Deposit Boxes without Charging Owners with Crimes

When the FBI asked a federal magistrate judge for a warrant to seize the property of US Private Vaults, it concealed critical details about its plan for the hundreds of individually rented security deposit boxes at the Beverly Hills business. Evidence brought to light in a federal class action lawsuit filed by the Institute for Justice (IJ) reveals the previously hidden history of the federal government’s raid, which deliberately violated the constitutional rights of hundreds of people throughout Southern California.


“The government has a duty to be honest with the court when it applies for a warrant under the Fourth Amendment,” said IJ Senior Nutjob Robert Frommer. “But the FBI lied about its intentions in claiming to only be interested in the property of the business, and not the box holders. Ultimately, the lure of civil forfeiture turned these federal cops into robbers.”


For almost five years the government investigated individual customers of US Private Vaults, using the business as (in the words of one agent) a “honey pot” to target customers. However, the government shifted its focus to the company after deciding its initial approach was not “effective.”


As part of that shift in focus, in summer 2020 the government started planning to apply for search and seizure warrants against US Private Vaults and its owners. One of those warrants was to seize US Private Vaults’ business property, including the “nest,” a relatively worthless superstructure that held renters’ safe-deposit boxes. When the FBI applied for that seizure warrant in March 2021, its affidavit did not allege that the customers had done anything wrong, and both the FBI and the United States Attorney’s Office swore that agents would merely “inventory” box renters’ property. They promised the warrant would “authorize the seizure of the nests of the boxes themselves, not their contents,” and that agents would pry “no further than necessary to determine ownership.”


But the FBI and the United States Attorney’s Office failed to tell the judge that, months before, they and other government agencies had already formulated plans to use civil forfeiture against customers’ property. In fact, before the federal magistrate had even seen the warrant application, FBI officials had concluded they would use civil forfeiture against every asset in every customer’s box that was worth over $5,000.


Why $5,000? Because $5,000 is the FBI’s minimum monetary threshold for forfeitures. In other words, the government testified that it planned to seize and administratively forfeit every box renter’s property so long as it thought it would make money on the deal. It planned this despite not knowing who those renters were, what was in their boxes or if they had committed any crimes.
So the looting was planned well in advance and they lied to get the warrant.

At least they had the good sense to avoid loot that was not worth taking and would be a money-loser in the end. The thing is, the looting should stop. All of it. The Kochy nutjobs are not the problem here, the government is.
 

jocal505

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Hi Dogballs. I heard that these Kochy nutjobs have flooded the American political system with dark money. I know this guy who is as dumb as a rock, and he says this smells bad, even to dumbasses.

Asset seizure reform, fine. But dark money, and gunz everywhere, under other flags? GTFO.
Bye, Dogballs. :coffee:
 

Pertinacious Tom

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Asset seizure reform, fine. But dark money, and gunz everywhere, under other flags? GTFO.
Glad you're OK with the thread topic, but I really don't need your approval. I'll continue opposing the Reagan/Biden drug war looting program whether or not you approve.

Try to keep up. TeamD leads in dark $peech these days, which is why it's not bad around here any more.

Of course, when considering drug war looting, as with every other issue, it's vital to recognize that I sometimes say bad things about TeamD gun bans and confiscation programs, so thanks for injecting that into the discussion again.
 

Pertinacious Tom

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FBI Misled Judge in Obtaining Warrant To Seize Hundreds of Safe Deposit Boxes

The warrant explicitly forbade looting, so "supplemental instructions" were needed.

...
The newly unredacted documents suggest the FBI never intended to abide by that limitation. In a deposition, Special Agent Lynne Zellhart said she drew up "supplemental instructions" for the agents who would be conducting the raid of U.S. Private Vaults. They were instructed to be on the lookout for cash stored inside the safe deposit boxes and to note "anything which suggests the cash may be criminal proceeds." Agents arranged to have drug-sniffing dogs present for the supposed inventory of the contents of the safe deposit boxes—which doesn't do anything to help inventory items, of course, but makes more sense if the actual goal is to initiate forfeiture proceedings.

"The government misled the court about its forfeiture plans when applying for the seizure warrant, intentionally disregarded the warrant's substantive limitations, and conducted a pretextual sham 'inventory' while searching for evidence of criminality," wrote Robert Frommer and Robert Johnson, Kochy nutjobs with the Institute for Justice, which is representing some of the victims of the U.S. Private Vaults raid.

...

"The 'inventory' was a sham," argue Frommer and Johnson in court documents. "Indeed, the whole idea of inventorying the vault was unreasonable on its face, as the best way to serve the purposes of an inventory would have been to leave the property safely locked away and appoint a receiver to wind down USPV's business without an invasion of privacy."

...
Lots of things can make cash seem like criminal proceeds, especially if your agency then gets some of the cash. Lots of cash smells like drugs, so the dogs make sense in the context of looting, if not in the context of inventorying.
 

Pertinacious Tom

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Anyone else search for his name to see if there's any media coverage of this notable circuit court decision?

I don't subscribe to Bloomberg Law but it looks to me like they're emphasizing how frustrating it is when drug warriors can't loot.

BloomLawLooting.jpg


The only other coverage I saw was in Forbes and emphasized the looting aspect.

If The Government Cannot Say What You Did Wrong, It Shouldn’t Take Your Stuff

But, as you might expect from such a headline, that one was actually written by a Kochy nutjob from the same group that brought the case. As Clean has noted, they can't be trusted.
Turns out IJ was founded entirely with Koch money and continues to have a majority of its operating expenses paid for by Koch. Because IJ's funding is material to their motivation, it has a strong impact on their credibility or what constitutes 'justice' to them.
 

Pertinacious Tom

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The decision hints that the government should have called McClellan a terrorist because his cocaine-laden cash also contained something called RDX.

Perhaps the Government has information that would explain how these scans tell us
something more. Maybe it can distinguish the positive scan here from the trace amounts
that may appear on ordinary bills. But, at this stage, using the positive ion scan alone to
connect this cash to drug trafficking is speculative at best. See, e.g., United States v. Ten
Thousand Seven Hundred Dollars & No Cents ($10,700.00) in U.S. Currency, 258 F.3d
215, 231 (3d Cir. 2001) (noting the failure of the Government to produce evidence why ion
test results were “scientifically significant . . . when compared to ‘the norm’”).8

This conclusion is bolstered by the Government’s treatment of the RDX revealed
on the scans. As noted, the ion scans of this cash also revealed RDX, which is an explosive.
But the Government does not rely on the presence of explosive particles to suggest that
McClellan trafficked in explosives—an activity that we would expect to get the
Government’s attention and may also permit forfeiture. See 18 U.S.C. §§ 981, 842. One
inference might be that cash may indeed carry residual contamination—whether explosives
or cocaine—that is detected by ion scans. So given our obligation to construe inferences
in favor of the Claimants, the ion scans cannot connect this cash with drug trafficking.9
 

Pertinacious Tom

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Looks to me like it does the opposite - using the implications of the RDX evidence to cast doubt on the credibility of the drug ion scan results.
Heh. I get the need to find an error to correct as I've repeatedly done to you in this thread, but that was a joke. His cash wasn't "cocaine laden" either. Want to correct that one?

I was joking about this part:

But the Government does not rely on the presence of explosive particles to suggest that
McClellan trafficked in explosives—an activity that we would expect to get the
Government’s attention and may also permit forfeiture.

Which is obviously not a hint that they should take that route. Glad you were able to actually read at least the quoted part of a decision and figure out what it meant. If you were to apply those skills over in the Stun Gun thread, that would be interesting to me too.
 

Pertinacious Tom

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The dissenting judge had good things to say about what Sessions and Biden did to forfeiture reform back in 2000, preserving at least most of the ability to loot.

Congress had good reasons to take this approach. While the seizure of property
always implicates individual liberty, it is also true that civil forfeiture remains a tool of
great importance for law enforcement in depriving drug dealers and other criminals of their
ill-gotten gains. The need is to strike a balance between those competing concerns and the
amended statute plainly reflects Congress’s desire to preserve the tool of civil forfeiture
without compromising the rights of innocent property-owners.

Over the last year, drug overdoses killed 108,000 Americans, the highest number in
our nation’s history. Noah Weiland & Margot Sanger-Katz, Overdose Deaths Continue
Rising, With Fentanyl and Meth Key Culprits, N.Y. Times (May 11, 2022). Those
Americans most harmed are so often those least advantaged. This crisis, driven in particular
by the introduction of synthetic opioids such as fentanyl, see id., hollows out towns and
communities, inflicting acute suffering on both drug users and those around them. There is
nothing sadder than the sight of an addict always needing the next “fix.” This is a crisis for
which neither our political branches nor our society at large has found an adequate answer.
Yet the solution is not to become so numbed by the persistence of a problem that we
weaken the implements that Congress has passed to attack it. Civil forfeiture is one of those
tools, a mechanism “to attack the financial structure of drug trafficking” that deprives drug
dealers of hundreds of millions of dollars in profits every year. U.S. Drug Enforcement
Admin., DEA Asset Forfeiture, https://www.dea.gov/operations/asset-forfeiture

I would not undermine one of the essential laws that Congress has chosen to address
our country’s drug problem. The majority decision, in my view, does not comport with the
preponderance-of-the-evidence standard chosen by Congress nor does it align with our
long-held principles governing summary judgment. Instead, it subjects civil forfeiture
proceedings to a level of divide-and-conquer scrutiny that we do not impose on other civil
cases and which finds no justification in the statute. Free from this impermissible approach,
what we have is this: an intoxicated driver, with a history of both drug trafficking and asset
forfeiture, crashing into a gas station early on a weekend morning with tens of thousands
of dollars in rubber-banded bills in a duffel bag in the trunk of his car, with no plausible
explanation as to what he was doing with the cash or how he came into possession of that
amount of money.
I couldn't disagree more. Ending the stupid drug war is an adequate answer and at least a few of us out here in society at large have found it. Drug war looting is a tool that makes it worse, not better.

But the dissent joins Clean's skepticism about Kochy nutjobs:

This intuitive analysis makes clear how anomalous the majority opinion is. For
instance, the amicus here cites several civil forfeiture cases where circuit courts have
reversed grants of summary judgment or orders of forfeiture. See Institute for Justice
Amicus Br. at 11–13. But those holdings are sounder and more persuasive than the one in
the case at bar. In one, the government seized jewelry that happened to be in “close
proximity” to drugs, even though the government could not establish that the claimant’s
income was insufficient to account for the jewelry. United States v. Assorted Jewelry
Approximately Valued of $44,328.00, 833 F.3d 13, 16–17 (1st Cir. 2016). In another, the
government sought to seize the entirety of the claimant’s bank account after seizing drugs
at the claimant’s home, even though there was no way to distinguish between drug proceeds
and legitimate savings deposited in the account. United States v. Sum of $185,336.07 U.S.
Currency, 731 F.3d 189, 197–98 (2d Cir. 2013). And in the third case, the government
seized approximately $30,000 in cash, even though the claimant accurately identified the
sum of money and stated he intended to purchase a car with it, and even though the police
had no basis for disputing this account. See United States v. Ten Thousand Seven Hundred
Dollars & No Cents ($10,700.00) in United States Currency, 258 F.3d 215, 232–33 (3d
Cir. 2001).

In each instance, the claimants could adduce some minimally plausible explanation
for what they were doing with the seized assets and how they came to possess those assets.
For instance, it is entirely commonplace to keep physical valuables such as jewelry in one’s
residence or to keep savings in a bank account. The above cases reflect understandable
reservations about the overreach of civil forfeiture, but the case before us is anything but
the demonstration model that one would choose to advance the cause. Here, despite a litany
of facts indicating that the subject money was tied to drug trafficking, McClellan could not
provide any reasonable explanation as to what he was doing with that immense amount of
rubber-banded cash in his trunk or how he came into possession of it.

None of this is to say that the burden of proof in a civil forfeiture action may shift
from the government to the claimant. It is simply to note that, as in any summary judgment
case, “the nonmoving party must present ‘specific facts showing that there is a genuine
issue for trial.’” Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d
532, 540 (4th Cir. 2015) (quoting Blair v. Defender Servs., Inc., 386 F.3d 623, 625 (4th
Cir. 2004)). It is not enough to provide “conclusory allegations, mere speculation, the
building of one inference upon another, or the mere existence of a scintilla of evidence.”
Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). So where the government makes
out a strong case that the claimant’s assets may be forfeited, the claimant is not absolved
of the need to rebut that case simply because the government possesses the burden of proof.
Where, as here, any reasonable jury would be forced to conclude that the assets at issue are
more likely than not subject to forfeiture, the government has discharged its burden on
summary judgment.
 
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