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Cthulhu
07-23-2014, 04:16 PM
From Slate (http://www.slate.com/articles/news_and_politics/jurisprudence/2010/02/take_the_money_and_run.html)-



Last month, the Supreme Court tossed out the case Alvarez v. Smith (http://reason.com/archives/2009/09/08/hold-on-to-your-assets), a challenge to a portion of the asset forfeiture in Illinois that allows the government to keep seized property for up to six months before giving its owner a day in court. The Court declined to rule on the case after determining it to be moot—all of the parties had settled with the government by the time the case made it to Washington.

Which is in direct conflict with...



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 offense 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.

Take that 5th amendment, who needs ya! Seriously. What the hell is going on here?

Back to Slate-



Civil asset forfeiture, an outgrowith of the drug war, rests on the legal theory that property can be guilty (http://openjurist.org/14/f3d/465/united-states-v-one-mercedes-benz-sd-vin-wdbcb20c6fa177831) of a crime.

At first I thought they were kidding until I went to the link within.



14 F.3d 465
UNITED STATES of America, Plaintiff-Appellee,
v.
ONE 1985 MERCEDES-BENZ, 300 SD, VIN WDBCB20C6FA177831, Defendant,
and
Sadrudin Kabani, Claimant-Appellant.

No. 91-35883.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Nov. 4, 1993.
Decided Jan. 14, 1994.

This is too retarded. Can't convict the man? So accuse his property of evil. You can't make this crap up.

I wonder if they will put the car in prison, or even execute it? Say it accidentally runs into someone because it's parking brake wasn't set - assuming you couldn't find the owner/driver and accuse him of negligence.

If it has talking Onstar do you have to read it Miranda rights?

Peter1469
07-23-2014, 05:31 PM
SCOTUS does not do advisory opinions. So when all the plaintiff / appellants settled with the state, the case was dismissed as moot.

SCOTUS didn't have to get to the 5th Amendment. But one would have to assume that those that accepted a settlement (1) thought the compensation was just; and (2) knew that SCOTUS would dismiss their case.

Chris
07-23-2014, 05:39 PM
Well, this law will eventually be tested, and it does violate the fifth.

That "property can be guilty" is just one of the absurdities of posited law. --Slash its tires!

Peter1469
07-23-2014, 05:46 PM
I believe that the federal asset seizure laws have been upheld by SCOTUS.

Chris
07-23-2014, 05:55 PM
OK, seems so, here's a brief history: Civil Forfeiture Laws And The Continued Assault On Private Property (http://www.forbes.com/2011/06/08/property-civil-forfeiture.html).

Chris
07-23-2014, 06:39 PM
Civil asset forfeiture differs from criminal asset forfeiture.

Policing for Profit: The Abuse of Civil Asset Forfeiture (http://www.ij.org/policing-for-profit-the-abuse-of-civil-asset-forfeiture-4)


Civil forfeiture laws represent one of the most serious assaults on private property rights in the nation today. Under civil forfeiture, police and prosecutors can seize your car or other property, sell it and use the proceeds to fund agency budgets—all without so much as charging you with a crime. Unlike criminal forfeiture, where property is taken after its owner has been found guilty in a court of law, with civil forfeiture, owners need not be charged with or convicted of a crime to lose homes, cars, cash or other property.

Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head. With civil forfeiture, your property is guilty until you prove it innocent.

Policing for Profit: The Abuse of Civil Asset Forfeiture chronicles how state and federal laws leave innocent property owners vulnerable to forfeiture abuse and encourage law enforcement to take property to boost their budgets. The report finds that by giving law enforcement a direct financial stake in forfeiture efforts, most state and federal laws encourage policing for profit, not justice.

...Federal laws encourage even more civil forfeiture abuse through a loophole called “equitable sharing” that allows law enforcement to circumvent even the limited protections of state laws. With equitable sharing, law enforcement agencies can and do profit from forfeitures they wouldn’t be able to under state law.

Read more in Policing for Profit: The Abuse of Civil Asset Forfeiture (http://www.ij.org/images/pdf_folder/other_pubs/assetforfeituretoemail.pdf) (PDF).


For a humorous view, see Daily Show Highway-Robbing Highway Patrolmen (http://thedailyshow.cc.com/videos/pjxlrn/highway-robbing-highway-patrolmen)

Cthulhu
07-24-2014, 10:00 AM
I believe that the federal asset seizure laws have been upheld by SCOTUS.

Yes it has, but in theory it is only supposed to take place after criminal conviction of the man guilty of the crime, and only if the asset was used to facilitate or enable the crime to occur.

Peter1469
07-24-2014, 10:04 AM
Yes it has, but in theory it is only supposed to take place after criminal conviction of the man guilty of the crime, and only if the asset was used to facilitate or enable the crime to occur.

I don't know much about it. A US Attorney would. Or a criminal defense attorney. Ali probably knows more about it than me. I know the feds often try to seize attorney's fees, claiming the defendant used tainted money (ill gotten gains).

Cthulhu
07-24-2014, 10:07 AM
I don't know much about it. A US Attorney would. Or a criminal defense attorney. Ali probably knows more about it than me. I know the feds often try to seize attorney's fees, claiming the defendant used tainted money (ill gotten gains).

She's the one that tasked me to research it. Evil stuff I have found so far. There is a 2014 case law that SCOTUS recently made I am trying to dig up. Openjurist has a lot of good info as well.

Worst part is in some cases there is no jury trial for asset forfeiture. This is all jacked up.

Peter1469
07-24-2014, 10:12 AM
Ali put you to work! Awesome.

I knew about the no jury thing for some asset forfeiture. Worse, the agency gets to keep a lot of the money to use in their operations. That is asking for corruption.


She's the one that tasked me to research it. Evil stuff I have found so far. There is a 2014 case law that SCOTUS recently made I am trying to dig up. Openjurist has a lot of good info as well.

Worst part is in some cases there is no jury trial for asset forfeiture. This is all jacked up.

Cthulhu
07-24-2014, 10:28 AM
Criminal forfeiture is an action brought as a part of the criminal prosecution of a defendant. It is an in personam (against the person) action and requires that the government indict (charge) the property used or derived from the crime along with the defendant. If the jury finds the property forfeitable, the court issues an order of forfeiture.
For forfeitures pursuant to the Controlled Substances Act (CSA), Racketeer Influenced and Corrupt Organizations (RICO), as well as money laundering and obscenity statutes, there is an ancillary hearing for third parties to assert their interest in the property. Once the interests of third parties are addressed, the court issues a final forfeiture order.

Okay, commit a crime, lose your stuff, especially if that stuff is related to committing the crime. That is all gravy. The problem is that the proceeds from the sale do not go to the victims, they go to the government. Not really groovy. And creates a system rife with corruption.



Civil judicial forfeiture is an in rem (against the property) action brought in court against the property. The property is the defendant and no criminal charge against the owner is necessary.

This makes no logical sense. Objects can't commit crimes. But that is the *magic* of the legal system for you.



Administrative forfeiture is an in rem action that permits the federal seizing agency to forfeit the property without judicial involvement. The authority for a seizing agency to start an administrative forfeiture action is found in the Tariff Act of 1930, 19 U.S.C. § 1607. Property that can be administratively forfeited is: merchandise the importation of which is prohibited; a conveyance used to import, transport, or store a controlled substance; a monetary instrument; or other property that does not exceed $500,000 in value.
Source: A Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies, U.S. Department of Justice, March 1994.

Again, 5th amendment violation. That whole due process of law. But thankfully it is limited in scope as to what they can swipe from you. And the value of it. But still, the difference is essentially whether your anal rapist used lubrication or not.

This is modern day plundering against the citizen.

Peter1469
07-24-2014, 10:34 AM
Right. A good analogy is fines against airlines for keeping passengers on a plane too long waiting to take off. It is a large fine, but goes to the government. Make money go to the passengers. Like $100 each. It would be less of a fine for the airlines, but it would also make the passengers happy.


Okay, commit a crime, lose your stuff, especially if that stuff is related to committing the crime. That is all gravy. The problem is that the proceeds from the sale do not go to the victims, they go to the government. Not really groovy. And creates a system rife with corruption.

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This makes no logical sense. Objects can't commit crimes. But that is the *magic* of the legal system for you.



Again, 5th amendment violation. That whole due process of law. But thankfully it is limited in scope as to what they can swipe from you. And the value of it. But still, the difference is essentially whether your anal rapist used lubrication or not.

This is modern day plundering against the citizen.

Cthulhu
07-24-2014, 02:07 PM
http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18a-node35-title7-rule32.2&num=0&edition=prelim

The bowels of the beast concerning forfeiture.

Update:

More stuff in the bowels of the beast here-

http://uscode.house.gov/view.xhtml?path=/prelim@title18/part1/chapter46&edition=prelim

But for civil forfeiture.

Cthulhu
07-24-2014, 02:34 PM
So using my clumsy understanding of the law I have put together a scenario-

A prostitute, doing business as usual, has a fight with a client, hits him with a tire iron. For whatever reason gets caught by an officer.

The prostitute's car that she had sex in, can be seized via criminal asset forfeiture. Because a true crime has been committed - she hit somebody with a tire iron after having sex in a car. But they would probably take the car on grounds that she was getting her dungeon plundered in it vs. the tire iron strike, but both would be perfectly acceptable to my understanding.

Peter1469
07-24-2014, 02:54 PM
Did you cross check all of the references? Here is an example from the civil forfeiture law that you linked to above.

18 U.S.C. sec. 981 (a)(1)

(A) Any property, real or personal, involved in a transaction or attempted transaction in violation of section 1956, 1957 or 1960 of this title, or any property traceable to such property.

Cthulhu
07-24-2014, 03:08 PM
Did you cross check all of the references? Here is an example from the civil forfeiture law that you linked to above.

18 U.S.C. sec. 981 (a)(1)

The reference you listed was exactly why I concluded the car could be swiped. And all money involved as well. In theory they could go after her bank accounts as well. Because most people put their money in banks. And since she operated an illegal business with her nethers, all her accounts are open season.

Because our imaginary prostitute was having illicit sexual intercourse in it, and prostitution in Narnia is a crime. Since the car was obviously involved - being the location of choice for the crime committed, the state in theory is justified in seizing it.

Or if the car was used in any other crimes listed here-



(C) Any property, real or personal, which constitutes or is derived from proceeds traceable to a violation of section 215, 471, 472, 473, 474, 476, 477, 478, 479, 480, 481, 485, 486, 487, 488, 501, 502, 510, 542, 545, 656, 657, 670, 842, 844, 1005, 1006, 1007, 1014, 1028, 1029, 1030, 1032, or 1344 of this title or any offense constituting "specified unlawful activity" (as defined in section 1956(c)(7) of this title), or a conspiracy to commit such offense.

That last little bit right there is the major eye sore. Minority Report right there.

Chris
07-24-2014, 04:49 PM
Sen. Rand Paul Wants to Make it Harder for the Feds to Take Your Stuff (http://reason.com/blog/2014/07/24/rand-paul-wants-to-make-it-harder-for-th)


Sen. Rand Paul (R-Ky.) today announced he has introduced the FAIR (Fifth Amendment Integrity Restoration) Act to add a bit more due process to the system by which federal prosecutors seize citizens' assets, often before ever proving they've broken the law. From his office's announcement:


The FAIR Act would change federal law and protect the rights of property owners by requiring that the government prove its case with clear and convincing evidence before forfeiting seized property. State law enforcement agencies will have to abide by state law when forfeiting seized property. Finally, the legislation would remove the profit incentive for forfeiture by redirecting forfeitures assets from the Attorney General's Asset Forfeiture Fund to the Treasury's General Fund.

"The federal government has made it far too easy for government agencies to take and profit from the property of those who have not been convicted of a crime. The FAIR Act will ensure that government agencies no longer profit from taking the property of U.S. citizens without due process, while maintaining the ability of courts to order the surrender of proceeds of crime," Sen. Paul said.

Looking over the legislation, the "clear and convincing evidence" replaces "a preponderance of evidence" threshold for the feds to attempt to force asset forfeitures. This is a higher legal burden of proof, requiring that "a party must prove that it is substantially more likely than not that it is true." It's still obviously not as good as requiring evidence of the crime beyond a reasonable doubt or for the federal government to actually convict somebody of a crime first, but baby steps, I guess.

...

CreepyOldDude
07-25-2014, 12:37 PM
Okay, commit a crime, lose your stuff, especially if that stuff is related to committing the crime. That is all gravy. The problem is that the proceeds from the sale do not go to the victims, they go to the government. Not really groovy. And creates a system rife with corruption.

That's criminal forfeiture. But in civil forfeiture, the forfeiture happens whether you're ever even accused or not.

And, they can kill you for your stuff, and walk away clean: The Death of Donald Scott (http://en.wikipedia.org/wiki/Death_of_Donald_P._Scott)

CreepyOldDude
07-25-2014, 12:41 PM
Sen. Rand Paul Wants to Make it Harder for the Feds to Take Your Stuff (http://reason.com/blog/2014/07/24/rand-paul-wants-to-make-it-harder-for-th)

Good for him. I hope it makes it into law.

Cthulhu
07-25-2014, 01:04 PM
That's criminal forfeiture. But in civil forfeiture, the forfeiture happens whether you're ever even accused or not.

I know. It's straight up monstrous. If they can't do criminal forfeiture, they will just try civil forfeiture since it is much easier to do to the average Joe.



And, they can kill you for your stuff, and walk away clean: The Death of Donald Scott (http://en.wikipedia.org/wiki/Death_of_Donald_P._Scott)

Killed him for marijuana that was never found. Warped stuff man.

Cthulhu
07-25-2014, 01:28 PM
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 (https://www.ij.org/part-i-policing-for-profit-2#_edn36)]

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. https://www.ij.org/images/publications/asset_forfeiture/table2.gif

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 (https://www.ij.org/part-i-policing-for-profit-2#_edn37)]
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 (https://www.ij.org/part-i-policing-for-profit-2#_edn38)] 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.

CreepyOldDude
07-25-2014, 02:22 PM
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.

Cthulhu
07-25-2014, 06:38 PM
CAFRA (http://www.gpo.gov/fdsys/pkg/PLAW-106publ185/pdf/PLAW-106publ185.pdf)

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 (http://thepoliticalforums.com/member.php?u=863)

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. :angry: