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Civil Forfeiture Laws Are Wrong. Can We All Agree on That?
Another example of actions by the police that show a lack of Protect and Serve. No one should have their things seized when they are not convicted of a crime. No one should have to sue to get their car back.
I especially like the bit where the police ask if the car is paid off. Really telling.
I want to support the police, but I don’t support thieves any more than I support looters.
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Bryan, supporting the police is not the same as supporting civil forfeiture, anymore than it is equivalent to supporting high taxes on cigarettes, a thirty-five mile an hour speed limit in an illogical location, or any other law on the books.
Police officers don’t make laws, they just enforce them.
I am (as you know) a very strong supporter of police officers and, for that matter, when he was working undercover, my late husband used to drive around in a creepy, pimped-out black car that had been taken from a drug dealer (probably through civil forfeiture). Even if he (or I) had actually liked the car (we didn’t) he’d have been open to discussing whether it was a good idea on principle to take people’s stuff when they haven’t been convicted of a crime. Even if the drug dealer in question was a scumbag.
I’ll belabor the point, because this is the mistake that people on the left make so often, understandably, I suppose, since the large, cumbersome and frequently-disappointing apparatus of law and justice is only visible to most people in the persons of police officers.
Yep, this is a topic that makes my blood boil. It’s thievery.
Yes, the civil asset forfeiture laws are on the books. Lots of laws are on the books that are not enforced due to “prioritization”. It’s perfectly clear why this one is prioritized to be enforced.
When SCOTUS had the opportunity to end this in Timbs v Indiana they punted. Instead of ruling that civil forfeiture was unconstitutional, they merely chose to tell the state that the Bill of Rights did, indeed, apply to them and they sent the case back to state courts.
Many police departments enforce civil forfeiture laws with great enthusiasm.
Especially true when the police department gets to keep some of the proceeds.
I’ve never understood these laws. I’ve read explanations, but never understood how they don’t violate the fifth amendment.
In many cases, all of the proceeds.
I don’t support asset forfeiture either.
Yes, it’s awful. One part of the problem is that it’s been around so long that entire generations of LEO’s have had it as a tool their entire career with case law and experience convincing them that it’s OK. Unfortunately I have seen on multiple online forums that criticism of civil asset forfeiture immediately results in people calling you a cop hater. Whatever motivated the original intent (I believe it was to keep criminals from using proceeds of crime to finance their defense), it has morphed into something very bad for police relations with the public’s
I don’t think they really had that opportunity in the Timbs case. Timbs pleaded guilty and the question was whether the seizure of his property, in excess of the maximum fine possible under Indiana law for that offense, violated the 8th Amendment prohibition against excessive fines. The main question before SCOTUS was whether the 8th amendment applied against States, rather than just the Fed government. The Court ruled that it did, and then appropriately sent the case back to lower courts to figure out whether the fine was excessive or not.
The court could not have issued a blanket ruling that civil forfeiture was Unconstitutional, as that question wasn’t properly before the court.
Asset forfeiture is also regressive. Poor people are more likely to deal in cash, which is often confiscated, and are less able to hire the legal talent needed to get their property back.
I was at a training class at our county seat PD when they brought in a bunch of stuff seized at a drug raid. They were proud and showed it to us (we stood at the entrance to the evidence storage area). There were the drugs seized but also things like laptops and phones. What was interesting was that when someone asked what happened if there was not a conviction, two officers almost simultaneously blurted out “we still get to keep it” before the question was finished. I know all of the officers and they are good guys but that mentality about asset forfeiture has become so widespread and invidious that they had an instinctive reaction to defend something that looks really bad to the general public.
I think “civil forfeiture” is similar to “no knocks” warrants. They are law enforcement tools that were created for specific purposes but have been expanded way beyond their original purposes to benefit government in ways not intended. I would like to see some very thorough, very thoughtful debate on both tools and restrictions placed or the tools removed depending on those findings. Sadly our lawmakers have gotten in the habit of writing law as broadly as possible and then our legal system expands and twists from there. Government has gotten into the habit of doing what is best for it and not it’s citizens.
I toured the FBI building in DC 25 years ago and one part of the tour was showing some of the cool stuff they took from people who may or may not have been criminals. The fact that it was part of the tour shows that this is something they are proud of and have a financial interest in continuing.
We had been discussing prison overcrowding and racial “profiling” in our state, prior to limiting asset-forfeiture. It seems that all these issues are related, at least statistically, and when forfeiture went away, the other issues became less pressing.
I recall hearing about these laws in law school, and was appalled. I recall that these laws are descendants of old English maritime law, when the actual ship was declared guilty of smuggling. A guilty ship! Or now, a guilty car, computer, whatever.
No, I do not agree that civil asset forfeiture laws are wrong.
I do not see any problem with a law allowing seizure of property used in a crime, as long as these facts are established by a preponderance of the evidence. This is a much lower standard of proof than is required for criminal conviction. The preponderance standard generally applies to civil cases involving property and money.
Here’s what that means. I can sue you, claiming that I actually own your car, and if I can prove it by a preponderance of the evidence, I get your car. That’s the ordinary rule. Why should it be different for asset forfeiture?
You state: “No one should have their things seized when they are not convicted of a crime.” The 4th Amendment expressly allows seizure of property upon probable cause, but this does not give the state the right to ownership, but rather the right to possession.
The example in the video does not make me sympathetic. A drunk woman falls “asleep” as a passenger in her own car (passed out drunk, probably). The man who was driving her car was clocked at 118 mph, refused a breathalyzer, and was arrested for DUI. The cops seized the car. I do not see any injustice here.
It’s possible that she may have an “innocent owner” defense, but she doesn’t actually look very innocent. I would need more facts to reach a conclusion, regarding the circumstances of the woman’s decision to allow the man to drive her car (assuming that this is what happened).
There may be a case to be made that seized assets before a conviction would constitute punishment after a conviction. Any sentence that called for imprisonment would be mitigated by the seized assets.
A precedent may have been set by the IRS, and state governments that seize assets for unpaid taxes without a trial.
One solution might be to require a defendant that has no visible source of income yet owns two homes, various big boy toys to sell off assets that would be placed in an escrow account that would pay for his own defense. The 50 pounds of cocaine found in the basement would be excluded from the escrow account.
Once again this is a legislative problem.
This part made me giggle. (See “facts” and “FISC.”) A bit off the specific topic but I dare say trust with such powerful tools is rather risky in the modern American model…all the way to the very top.
Police
thefttaking, to enlarge coffers and pay police salaries are an abomination to God They violate the 8th, 9th, and 10th Commandments.Even John the Baptist, when asked by Roman soldiers (the policemen of their time) “What about us?” said do violence to no man, neither accuse falsely; and be content with your wages.
It shouldn’t be different. In the case you mentioned, there was a trial. There was an opportunity to defend, and therefore due process. That’s not the case with forfeiture as I understand it.
That is not a good guy mentality. It is the mentality of a theif.
So you are for government theft. Gotcha.
That is what this is. She does not have the money to sue, and because the case is still pending the woman had to buy her car back at an extorted price. This is not right. Seizing a car because someone broke the law driving it at the descrection of the police, who then get the benefit from the asset stolen is not a recipe for moderation. It is a recipe for abuse.
If you can’t be deprived of life, liberty, or property without due process, that means that the same standard for process has to apply for all three. If the “process” used in civil forfeiture couldn’t be used to imprison someone or sentence someone to death, then it’s equally invalid to apply to taking someone’s property.
The laws are wrong for sure.
And police abuse the laws. There is no downside for them at all. “We get to keep the stuff” even when the person is innocent?
That is wrong. Wrong. Wrong.
Are you defending that Doug? The person is found innocent and the police still keep it?
Do you agree telling the police they get to benefit from what the seize at least is a poor incentive?
Or, are all police all the time just angels with no problems with abuse of their authority at all?
I can start posting link after link of how this is abused.
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I don’t get this part. Civil forfeiture takes place without a trial. What does preponderance of the evidence have to do with it? Civil forfeiture laws are evil on their face.
Let’s say someone owns a home worth 500k, has a ski boat, a Vette, and a beach villa in Cabo. Let’s say this someone doesn’t have any taxable income, and is self-employed selling illegal pharmaceuticals. Said person lost his inventory due to an arrest. They demand a public defender.
A judge determines that our self employed pharmacist can provide for his own defense rather than the public paying for his defense. He is allowed to sell his assets and the proceeds are deposited in an escrow account that his defense attorney can draw on to cover his costs.
For example his defense attorney notifies the judge that his client dreamed about him one night for an hour. His attorney approaches the judge and says he needs $500 to cover that billable hour.
If said defendant is found not guilty then he gets back the balance of the escrow account.
Easy peasy.
Bryan, buddy, I find your arguments quite unfair.
You say civil forfeiture is theft. No, it’s not. You don’t seem to understand how the system works. You say that a person loses their property even if “found innocent.” Criminal proceedings rarely establish innocence. Innocence is presumed. An acquittal means that guilt has not been proven, at the very high standard of “beyond a reasonable doubt.” That is the right standard for a criminal case, in which a serious deprivation of liberty is usually the punishment. It is not the right standard for a fine or a property sanction, for which the preponderance standard is generally proper.
There could be a good argument for an intermediate standard, clear and convincing, on some issues. This is the standard typically applied to civil fraud cases, and punitive damages, and sometimes things like overturning a will (for undue influence and the like).
There is not a lack of due process in most civil forfeiture proceedings. There is usually a court case filed, technically called an “in rem” case, because the named defendant is the property. There are notice requirements (typically), and the owner can contest the proceeding.
I think that some jurisdictions allow an administrative proceeding as an alternative to a court case. I like this less, though in some circumstances, this would be acceptable to me. We do adjudicate a number of important issues in such administrative proceedings — for example, complaints against licensed contractors and Social Security claims.
I would not support a system in which the burden of proof was placed on the property owner on the central issue in a forfeiture case — use of the property in a crime. It gets complicated, because I think that it would be reasonable to put the burden of proof on the owner for an “innocent owner” defense (though it would also be reasonable to reverse the burden of proof on this issue).
I’m not sure why some people get so fired up about civil asset forfeiture. We have much bigger fish to fry. Riots in the streets; serious increases in homicide rates; tens of thousands of suicides and substance abuse deaths; close to a million abortions a year.
On a related point: SCOTUS ruled in 2019 that the “excessive fines” prohibition of the 8th Amendment applies to civil asset forfeiture. I think it was a good ruling, and it will help prevent the worst abuses.
The SCOTUS case involved seizure of a $42,000 land rover in connection with a minor drug crime that carried a maximum fine of $10,000 — the particular defendant was fined $1,200. SCOTUS ruled that this was too much.
On the other hand, seizure of a vehicle for DUI doesn’t seem out of line, though it may depend on the value of the car. In Arizona, I think that a DUI first offense carries a sentence of up to 6 months. A $10,000-$15,000 fine seems in line with this, so seizure of a vehicle in this price range strikes me as reasonable. If it’s a new $100,000 Tesla, that would probably be excessive.