Should Civil Forfeiture Exist?

[PirateMk1]

that's a cop out.

I believe beyond reasonable doubt for conviction in a case either civil or criminal should be the standard. Period. I have reasons I can go over them in detail in another thread if you choose.

 

[TurtleDude]

Irrelevant, because your guns have been arrested in connection with a possible crime, not you. However, you can get your guns back quite simply. As this page on asset forfeiture lays out...

"Begin the process of recovering your property guns by contacting an experienced civil or criminal defense attorney, who should have previous experience in recovering property guns seized through asset forfeiture."

https://criminal-law.freeadvice.com...orfeiture-confiscated-property-what-to-do.htm

uh if someone is caught robbing a bank using a gun I claim is mine, the gun is going to remain as evidence -at least-until the trial is over

let us get back to reality

police get a tip that a drug dealer stashed 100K in drug proceeds with his brother in law. A judge signs a seizure order based on probable cause-supported by sworn testimony that the money is narcotics proceeds. The drug dealer doesn't claim the cash for obvious reasons. The brother in law claims it is his. The Government provides testimony either showing that the claimant did not have the means of generating such income or say a wire tap where there is evidence that the money came from the drug dealer. the jury agrees with the government.

tell us what is wrong with that

 

[Cardinal]

where do you get this crap from? we are talking about legal search warrants backed up with probable cause.

Post #13 was made for you.

 

[ludin]

I agree but what about this COMMON Scenario

I had another case where a girl was busted for DUI and there was 18K in cash in a paper bag. WE knew it was drug money but we couldn't tell the jury because there was a big investigation going on that lead to 8 people getting over 15 years each for narcotics trafficking, extortion, and one murder of a witness. Now a lottery winner-a friend of the dealer's father-stepped forward and claimed it was his money. He was never charged since he had nothing to do with the drugs. The only offense that could have been charged was perjury (three years later, the dealer ratted this guy out -we declined prosecution for reasons not relevant)

The DEA seized the cash. The jury heard from the lottery winner. After a week of federal trial time, the Jury-in fifteen minutes-found that the claimant was not the actual owner of the cash and the DEA was granted the verdict.

tell me why this is improper

The whole point of civil forfeiture is to stop the laundering of money and drug cash.
So it was used a huge weapon against the mob and other criminal elements that use cash as their main means
of purchasing. so lets get that out of the way.

I am not worried about MISC claimant of cash seized.

what concerns me is that without due process or proven guilty that government agents can come along and take your stuff
with no conviction.

More so if you are found innocent of the crime 99% of the time people do not get their items back. it is not possible.
which is a further violation of their constitutional rights.

I see the point of asset seizer but without a warrant or criminal conviction the state should have 0 ability to take it.

if i walk down the street with 15k in cash it is none of the states business why i have it unless they can prove that i am engaging in a criminal activity.
yet in some states i could be arrested and my cash taken without so much as a warrant or due process.

what is worse is that the chances of me getting my 15k back are slim to none.

 

[Carjosse]

where do you get this crap from? we are talking about legal search warrants backed up with probable cause.

Are you not defending civil forfeiture which requires neither of those things?

 

[TurtleDude]

I believe beyond reasonable doubt for conviction in a case either civil or criminal should be the standard. Period. I have reasons I can go over them in detail in another thread if you choose.

OK -you have departed from the realm of reality. malpractice victims would almost never get redress. same with tort victims, or those whose contracts were breached. when you say "conviction" in a civil case, I worry that demonstrates a rather substantial lack of understanding of legal principles

 

[TurtleDude]

Are you not defending civil forfeiture which requires neither of those things?

have you ever litigated a forfeiture case? in the federal system, there needs to be an order by a court for the property to be retained prior to trial. it is based on a probable cause standard

 

[Cardinal]

uh if someone is caught robbing a bank using a gun I claim is mine, the gun is going to remain as evidence -at least-until the trial is over

let us get back to reality

police get a tip that a drug dealer stashed 100K in drug proceeds with his brother in law. A judge signs a seizure order based on probable cause-supported by sworn testimony that the money is narcotics proceeds. The drug dealer doesn't claim the cash for obvious reasons. The brother in law claims it is his. The Government provides testimony either showing that the claimant did not have the means of generating such income or say a wire tap where there is evidence that the money came from the drug dealer. the jury agrees with the government.

tell us what is wrong with that

"Mine" is missing the point. Under the same use of civil asset forfeiture, but with guns, the police can confiscate your guns under the pretext that you plan on using the guns for some crime down the road. Since they're arresting the guns and not you, and since the Bill of Rights doesn't cover guns, you cannot contest the arrest of your guns, except insofar as you can hire an attorney to argue for the return of your guns.

If everything I'm saying sounds like the raving of a total lunatic, then it means...just possibly...that you're not a stark raving lunatic yourself.

 

[TurtleDude]

The whole point of civil forfeiture is to stop the laundering of money and drug cash.
So it was used a huge weapon against the mob and other criminal elements that use cash as their main means
of purchasing. so lets get that out of the way.

I am not worried about MISC claimant of cash seized.

what concerns me is that without due process or proven guilty that government agents can come along and take your stuff
with no conviction.

More so if you are found innocent of the crime 99% of the time people do not get their items back. it is not possible.
which is a further violation of their constitutional rights.

I see the point of asset seizer but without a warrant or criminal conviction the state should have 0 ability to take it.

if i walk down the street with 15k in cash it is none of the states business why i have it unless they can prove that i am engaging in a criminal activity.
yet in some states i could be arrested and my cash taken without so much as a warrant or due process.

what is worse is that the chances of me getting my 15k back are slim to none.

I cannot speak for state forfeiture actions. I do know at the federal level, what you are saying MAY happen but it is no where near common. and again-if a jury finds that the proceeds are NOT YOURS, doesnt that dispel your claims?

 

[Fearandloathing]

I'm going to be shocked if this actually turns into a debate. Nobody should like this. I can't fathom how anybody on either side of the fence could defend this, or why.

Check you Microsoft news page. There as item in there from USA Today detailing the $$$$ taken from citizens in the millions in what appears to be a huge case in South Carolina. Example: A man is beaten by a home invader and calls police. The prep is long gone but they search the house and find a marijuana cigarette and so seized all his money about $ 1,800.00

There many, many cases cited.

The discussion should NOT be about whether to allow the practice with restrictions and over sight. Typical in the US it's always black and white, yes or no but this has great potential and was brought in here to deal with fraud cases where the defendant has millions through illegal means - prove the means were obtained illegally and we can seize them. But case laying next to a pot joint is not justice

 

[chuckiechan]

That's exactly how it used to be, before the mid-eighties and Reagan's War on Drugs.

Up until then, the accused first had to be found criminally guilty of running a criminal for-profit enterprise (not merely possession, but dealing for profit). After a guilty dealing verdict, the state had to do a separate civil case demonstrating the convicted had profited from his crimes, and only then could a judge rule for forfeiture. I seem to recall the forfeiture amount would not exceed the criminal profits generated, but can't state that definitively.

Part of it was that the expensive drug cartel lawyers were beating the feds in court, so the feds siezed their assets to deny them the funds they needed to hire the best lawyers money could buy. I can argue due process for drug smugglers another day, but I will argue that if you give the government an inch they will eventually take the whole yard stick.

 

[What if...?]

I don't agree with any civil forfeiture before a guilty verdict is handed down. Once a guilty verdict is handed down I have no problem with forfeiture of defendant's property. Now where I am still on the fence about is whether or not that should apply to property not owned by the defendant but used in a crime. A house is the perfect example. If a defendant is found guilty and drugs or money were found in the home and the home belongs to someone else, I am on the fence about whether that property should be included in forfeiture if the owner was unaware of any illegal activities.

EDIT: So I put yes it should exist for the defendant on trial, but just want to clarify, not before a guilty verdict is handed down by a court.

I think any forfeiture should be limited to fruits of the operation. Onus on the defendant to prove it was purchased prior to the beginning of the criminal activity in question and not used in the operation. No "he parked a car full of drugs in the driveway once" nonsense.

Civil asset forfeiture has been grotesquely abused. I can't believe it exists as a commonplace thing. A source of income for police departments, pulling people over, searching them and taking cash and vehicles if they think the "suspect" won't be able to do anything about it. (They don't take the neurosurgeons Bentley)

Literally.

Further, any assets seized go away from the locality in which they are collected. Into some fund that doesn't get back to them. Remove all incentive beyond enforcement of the law.

Because they clearly can't navigate the moral hazard.

 

[ludin]

I cannot speak for state forfeiture actions. I do know at the federal level, what you are saying MAY happen but it is no where near common. and again-if a jury finds that the proceeds are NOT YOURS, doesnt that dispel your claims?

https://www.washingtonpost.com/nati...ntil-they-went-public/?utm_term=.772f84aa5e0b

the issue is the states. they are government actors.
it is very much abused at the state level.

So let me give you an example.

I am a cop and you are speeding. I pull you over. You are on a vacation or something but have a bit of cash on you.
depending on the state i can detain you an question you over the cash.

i can then proceed to charge you with some kind of trafficking (whether i have evidence or not for it).
I can then proceed to take your cash and your car and send them to the state police or city police slush fund
for use.

now you can fight your case and you win.
the chances of you getting your car back ok.
chances of you getting your cash well a different story without a lot of legal and court cases
probably costing more money than what i took from you to begin with.

do you not seen an issue with that?

 

[PirateMk1]

OK -you have departed from the realm of reality. malpractice victims would almost never get redress. same with tort victims, or those whose contracts were breached. when you say "conviction" in a civil case, I worry that demonstrates a rather substantial lack of understanding of legal principles

I am not a lawyer, I am logistician and manufacturer by trade. I would prefer to discuss this particular topic in its own thread as to get into the nuts and bolts here and now would further derail this thread which is about forfeiture. PM me if you open one up, I will do the same if I do if I get a thread up myself, if get some time. Standards of proof would go into the law and order section right?

 

[Chomsky]

i'd rather end the war on drugs.

Now you're talkin'! :thumbs:

BTW the government often engages in "affirmative civil enforcement" that only requires civil standards of proof but which can cost businesses or individuals millions of dollars.

Yep. I'm aware. Which is why I accepted your (legal) argument immediately and without protest! :2razz:

I also considered IRS enforcement (on your side of the argument), though that's a whole 'nother venue and body of law.

 

[TurtleDude]

https://www.washingtonpost.com/nati...ntil-they-went-public/?utm_term=.772f84aa5e0b

the issue is the states. they are government actors.
it is very much abused at the state level.

So let me give you an example.

I am a cop and you are speeding. I pull you over. You are on a vacation or something but have a bit of cash on you.
depending on the state i can detain you an question you over the cash.

i can then proceed to charge you with some kind of trafficking (whether i have evidence or not for it).
I can then proceed to take your cash and your car and send them to the state police or city police slush fund
for use.

now you can fight your case and you win.
the chances of you getting your car back ok.
chances of you getting your cash well a different story without a lot of legal and court cases
probably costing more money than what i took from you to begin with.

do you not seen an issue with that?

yeah I do-so is there a judicial order allowing seizure and retention of the cash pending trial

if not, that is wrong and I am only talking about federal system matters-since that is what I know inside and out

 

[ludin]

yeah I do-so is there a judicial order allowing seizure and retention of the cash pending trial

if not, that is wrong and I am only talking about federal system matters-since that is what I know inside and out

it probably doesn't happen too often at the federal level (irs) probably the worst offenders of it, but what we are discussing is a huge issue
at the local state level.

 

[btthegreat]

I don't agree with any civil forfeiture before a guilty verdict is handed down. Once a guilty verdict is handed down I have no problem with forfeiture of defendant's property. Now where I am still on the fence about is whether or not that should apply to property not owned by the defendant but used in a crime. A house is the perfect example. If a defendant is found guilty and drugs or money were found in the home and the home belongs to someone else, I am on the fence about whether that property should be included in forfeiture if the owner was unaware of any illegal activities.

EDIT: So I put yes it should exist for the defendant on trial, but just want to clarify, not before a guilty verdict is handed down by a court.

Why on earth are you on the fence if the owner was not directly connected to the crime, and did not know that their property would be used in commission? I can't think of two sides here?

 

[Chomsky]

Part of it was that the expensive drug cartel lawyers were beating the feds in court, so the feds siezed their assets to deny them the funds they needed to hire the best lawyers money could buy. I can argue due process for drug smugglers another day, but I will argue that if you give the government an inch they will eventually take the whole yard stick.

To add my two cents, I do not believe in rescinding due process, at least for my fellow citizens, at any time in any manner.

Though you do present an interesting case, with foreign drug dealers. It still strikes me as unseemly though, to limit or hinder one's ability to provide a legal defense - even for non-citizens.

The great sin of the War on Drugs is my bona fide U.S. cash can be summarily confiscated, essentially for nothing more than I'm driving around with a lot of it. And my 14th A rights go out the window, if a state-trooper gets his dog to act excited by my car. I've seen video over the years, where as a lifetime dog owner it very much seems to me the officer-handler initiated the dog's excitement, by tapping on the citizen's car.

I've got news for you; my dogs get excited wherever I tap or pat my hand, too. It's what they do. It's what gets them to jump up on the bed, too!

 

[TurtleDude]

Why on earth are you on the fence if the owner was not directly connected to the crime, and did not know that their property would be used in commission? I can't think of two sides here?

there are essentially two kinds of forfeiture at the civil level

1) illicit proceeds

2) property used to convey conceal facilitate or further illicit activities

the second form is where most of the abuse takes place.

if you are caught speeding, and you have a salt shaker of cocaine in the car-that is sufficient to forfeit the car since the car is being used to transport or conceal cocaine. I have issues with that sort of forfeiture. Now if you have a pole barn where your are growing 200 pot plants with grow lights-not so much.

If you use a handgun to rob a bank-that gun is toast-I suspect no one has any issue with that unless the gun was stolen and the owner had made a valid report and the cops know about it

 

[btthegreat]

there are essentially two kinds of forfeiture at the civil level

1) illicit proceeds

2) property used to convey conceal facilitate or further illicit activities

the second form is where most of the abuse takes place.

if you are caught speeding, and you have a salt shaker of cocaine in the car-that is sufficient to forfeit the car since the car is being used to transport or conceal cocaine. I have issues with that sort of forfeiture. Now if you have a pole barn where your are growing 200 pot plants with grow lights-not so much.

If you use a handgun to rob a bank-that gun is toast-I suspect no one has any issue with that unless the gun was stolen and the owner had made a valid report and the cops know about it

I must be missing the obvious. In any example you are likely to provide, the OWNER of that car, or that pole barn should not lose their property or its value unless there is a showing of prior knowledge that criminal conduct was planned or likely planned using that property. You got some circumstances to assert differently? If I loan my brother-in law a car, that he claims he needs to take his dying daughter to a hospital, only to discover the daughter is kilos of cocaine, and the hospital is the a drugpin's home, I ought not lose my car.

 

[TurtleDude]

I must be missing the obvious. In any example you are likely to provide, the OWNER of that car, or that pole barn should not lose their property or its value unless there is a showing of prior knowledge that criminal conduct was planned or likely planned using that property. you got some circumstances to assert differently?

there is an innocent owner defense-I lend my son my car and he scores a nickel bag of crack, and is busted, I can claim that I didn't know he had drugs. Or if I give a co-worker a ride to work and in his briefcase is a kilo of Peruvian Blow.

or if some squatter grows weed on my cornfields that I don't regularly visit

 

[Born Free]

It is used by police to apply pressure to suspects, too. Let's say someone is busted with drugs in their possession at there mother's house. They threaten to take mom's house and throw her ass out on the street unless you confess to whatever they decide you need to confess about.

It never should have existed in the first place.

That sounds exactly what Mueller is doing.

 

[btthegreat]

there is an innocent owner defense-I lend my son my car and he scores a nickel bag of crack, and is busted, I can claim that I didn't know he had drugs. Or if I give a co-worker a ride to work and in his briefcase is a kilo of Peruvian Blow.

or if some squatter grows weed on my cornfields that I don't regularly visit

Yes there is. The problems crop up when we learn who has both the legal and practical burdens. If the police want my property to sit in their custody, let them prove what I knew and let them do the legwork and jump the hoops. The car gets processed for evidence, and is released to my custody pending the results of the inquiry.

 

[ttwtt78640]

How about when the police seize your guns because when you have a CCW permit and get ACCUSED by a girlfriend of sexual assault?

That is not quite as bad, as there is obviously pre-trial detention now. If given the choice to surrender my guns before trial or to remain locked up then that is a no-brainer. One serious problem with criminal charges is that it is the state of X vs. you (the alleged perp) and as such, even after being found not guilty, you cannot sue for false arrest/imprisonment.