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Thread: The law of robbery.

  1. #21
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    An Unlevel Playing Field for Property Owners

    The profit motive in civil asset forfeiture laws provides a critical incentive for abuse. By contrast, property owners’ ability to reclaim seized property is a check on forfeiture power. The better legal procedures protect this ability, the more difficult it is for law enforcement to forfeit property. This report examines two key factors that determine how easily property owners can defend their interests in civil asset forfeiture proceedings: the standard of proof required to demonstrate that the property should be forfeited and the strength of an “innocent owner” defense.[52]

    Standard of Proof


    The “standard of proof” means how much evidence the government must present at trial and how compelling that evidence must be in order to successfully claim property through civil asset forfeiture. The higher the standard of proof set by state law, the harder forfeiture is for the government and the more protection afforded property owners.

    The highest standard is “beyond a reasonable doubt,” commonly associated with convictions on criminal charges. As shown in Table 2, only four states require such a high standard for civil forfeiture proceedings, and one of those, California, only uses it when certain property is at issue. (Most commonly, in states with two forfeiture standards, the higher one is for the forfeiture of real property such as land and homesteads.) In another of those states, North Carolina, all forfeitures are criminal actions; civil asset forfeiture essentially does not exist in North Carolina. Only Nebraska and Wisconsin require beyond a reasonable doubt for all civil forfeiture.

    “Probable cause” is the lowest standard used for forfeiture, and it is the standard for some property in 14 states. Probable cause is the same standard used to justify search warrants and the arrest of suspected law violators and means merely that the government has a reasonable belief that a person has committed a crime. It is also the standard law enforcement must meet in most states for a seizure of property—the first step in the forfeiture process.

    As Table 2 shows, 27 states employ a “preponderance of the evidence” standard for forfeiture of some property, and so does the federal government, making it the most common standard. It is considered higher than mere probable cause and generally equates to the idea that it is more likely than not that the property is related to criminal conduct and thus subject to forfeiture. Finally, 13 states use a “clear and convincing” standard for some property. It poses a greater challenge for government to prove its case than probable cause or preponderance, but less than reasonable doubt.

    In short, in the vast majority of states and at the federal level, the standard of proof required to forfeit an individual’s property is lower than the standard required to prove that the individual was guilty of the criminal activity that supposedly justified the forfeiture in the first place. Given this situation, it is not surprising that upwards of 80 percent of forfeitures occur absent a prosecution.[53]

    Burden on Innocent Owners
    Not only are most civil forfeitures subject to a standard of proof lower than that required for criminal guilt, but in most states, property owners are effectively guilty until proven innocent.

    In 1996, the U.S. Supreme Court held in Bennis v. Michigan[54] that property owners do not have a constitutional right to an “innocent owner” defense in civil forfeiture actions. In Bennis, a wife’s car was used without her knowledge by her husband to secure the services of a prostitute. The husband was arrested and the car seized. Under Michigan law, vehicles used for such purposes were subject to seizure and forfeiture. Furthermore, Michigan law did not provide for a defense based on an owner’s lack of knowledge about the use of the vehicle for illegal purposes—in other words, that the owner is innocent, and therefore the property should not be forfeited. The wife appealed the forfeiture of the vehicle, and the U.S. Supreme Court ruled against her.

    The critical public and political reaction to this ruling, as well as media reports of questionable forfeiture activities, led to the inclusion of an innocent owner defense in the 2000 Civil Asset Forfeiture Reform Act (CAFRA) that now applies to all federal forfeiture actions. In addition, all remaining states that previously did not have an innocent owner defense, including Michigan, eventually passed legislation barring the forfeiture of property belonging to an innocent owner.

    However, in most states and at the federal level, the burden is on the owner to establish her innocence, which would then exempt the property from forfeiture. This is the exact opposite of the dictum “innocent until proven guilty” that applies in criminal cases.

    As Table 3 shows, only in six states does the government bear the burden of establishing that an owner is not innocent for forfeiture of all kinds of property. In another six states, the burden depends on the property in question. Typically, in these states, the burden is on the government for real property, especially primary residences, while it is on the owner for other property such as cash. In 38 states, the burden is on the owner to establish his innocence.


    https://www.ij.org/part-i-policing-for-profit-2

    Stunning. This is the Land of the Fee and Home of the Slave. Without legitimate property rights, we may as well wave the flag upside down.

    Don't think I can in good conscience stand for the pledge of allegiance, let alone the national anthem anymore.
    "For we wrestle not against flesh and blood, but against principalities, against powers, against the rulers of the darkness of this world, against spiritual wickedness in high places."

    Ephesians 6:12

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    Chris (07-25-2014)

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    Quote Originally Posted by Cthulhu View Post
    Killed him for marijuana that was never found. Warped stuff man.
    I've always figured they expected to be able to seize his entire farm.

    I'm always amused, in a sick sort of way, that people reference how the LAPD investigated the shooting, and cleared the officers. It's amusing because one of the officers who killed Scott was part of the investigation into the shooting.

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    CAFRA

    Basically, the monstrous hybrid amalgam of all forfeiture. If they can't get you for whatever criminal forfeiture laws already listed in the thread, they will use this satanic combination of ink and parchment.

    Sections of note are pages 114 STAT. 203 through 114 STAT. 207. But you had better be cleaner than a preacher's sheets if you think the "innocent owner" option will work, and you had better be sure the property wasn't used in any nefarious way either.

    @Alyosha

    Some nuggets of note -

    ‘‘(c) BURDEN OF PROOF.—In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property— ‘‘(1) the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture;

    ‘‘(2) the Government may use evidence gathered after the filing of a complaint for forfeiture to establish, by a preponder- ance of the evidence, that property is subject to forfeiture; and
    ‘‘(3) if the Government’s theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense. ‘‘
    (d) INNOCENT OWNER DEFENSE.—
    ‘‘(1) An innocent owner’s interest in property shall not be forfeited under any civil forfeiture statute. The claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence.
    ‘‘(2)(A) With respect to a property interest in existence at the time the illegal conduct giving rise to forfeiture took place, the term ‘innocent owner’ means an owner who—
    ‘‘(i) did not know of the conduct giving rise to forfeiture; or
    ‘‘(ii) upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property. ‘‘(B)
    (i) For the purposes of this paragraph, ways in which a person may show that such person did all that reasonably could be expected may include demonstrating that such person, to the extent permitted by law—
    ‘‘(I) gave timely notice to an appropriate law enforce- ment agency of information that led the person to know the conduct giving rise to a forfeiture would occur or has occurred; and
    ‘‘(II) in a timely fashion revoked or made a good faith attempt to revoke permission for those engaging in such conduct to use the property or took reasonable actions in consultation with a law enforcement agency to discour- age or prevent the illegal use of the property.
    ‘‘(ii) A person is not required by this subparagraph to take steps that the person reasonably believes would be likely to subject any person (other than the person whose conduct gave rise to the forfeiture) to physical danger.
    ‘‘(3)(A) With respect to a property interest acquired after the conduct giving rise to the forfeiture has taken place, the term ‘innocent owner’ means a person who, at the time that person acquired the interest in the property—
    ‘‘(i) was a bona fide purchaser or seller for value (including a purchaser or seller of goods or services for value); and
    ‘‘(ii) did not know and was reasonably without cause to believe that the property was subject to forfeiture.
    ‘‘(B) An otherwise valid claim under subparagraph (A) shall not be denied on the ground that the claimant gave nothing of value in exchange for the property if—
    ‘‘(i) the property is the primary residence of the claim- ant;
    ‘‘(ii) depriving the claimant of the property would deprive the claimant of the means to maintain reasonable shelter in the community for the claimant and all depend- ents residing with the claimant;
    ‘‘(iii) the property is not, and is not traceable to, the proceeds of any criminal offense; and
    ‘‘(iv) the claimant acquired his or her interest in the property through marriage, divorce, or legal separation, or the claimant was the spouse or legal dependent of a person whose death resulted in the transfer of the property to the claimant through inheritance or probate, except that the court shall limit the value of any real property interest for which innocent ownership is recognized under this subparagraph to the value necessary to maintain reasonable shelter in the community for such claimant and all dependents residing with the claimant.
    My government is evil.
    Last edited by Cthulhu; 07-25-2014 at 07:19 PM.
    "For we wrestle not against flesh and blood, but against principalities, against powers, against the rulers of the darkness of this world, against spiritual wickedness in high places."

    Ephesians 6:12

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