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Governmental Piracy in the 21st Century
What would you say about a lawsuit that names 64,695 pounds of shark fins as the “defendant”? Yes, the Federal government did file suit against shark fins, as well as many other inanimate objects, all for the sake of revenue.
If you haven’t heard of civil asset forfeiture as a legal tool used by prosecutors, it is high time that you did. This is a legal maneuver that traces its roots all the way back to Medieval times, when people thought weapons could kill on their own, and kings would claim them, to cover the cost of burying the dead. Perhaps that superstition could also be blamed for the left’s fascination with implying guns can kill without humans using them but, for now, we’ll stick with the legal procedure that parts people from their property without criminal charges or due process.
Yes, you read that right. The civil asset forfeiture laws today are the bastard children of British maritime laws that were written for the specific purpose of giving the Crown legal jurisdiction to claim foreign ships and their cargo: legal piracy, if you will. Those laws did not go over well with Dutch merchants, and lead to the Anglo-Dutch wars in the 1600’s. Unfortunately for Americans, they can’t simply declare war on the government for claiming what isn’t theirs, and also are rarely able to find equitable resolutions in court.
While the history is interesting enough, what it means today is that millions of dollars worth of citizens’ property being seized by the government, without warrants, and often without the government ever intending to bring criminal charges against anyone. Because the government claims that the inanimate objects are “guilty” of a crime, these cases are not heard in criminal court. That means in a civil court, the items are presumed guilty, and the burden of proof of innocence falls on the property owners.
If that is not egregious enough for you, the federal government has set up a payment system that actually encourages local and state law enforcement agencies to seize property under civil asset forfeiture. The spoils are then shared by multiple levels of government. It isn’t harsh to call these ill-gotten gains, either. The procedures that citizens must go through to get their property back in these cases is time-consuming, and typically requires the assistance of legal counsel. So, unless it’s a very valuable item that was seized, innocent citizens simply give up more often than not, and take the loss.
Are you appalled? Good! This is just scratching the surface on this issue. FreedomWorks recently released a thumbnail history of these horrible laws — From High Seas to Highway Robbery: How Civil Asset Forfeiture Became One of the Worst Forms of Government Overreach — which you really should read.
Published in General
I would delete the first paragraph.
That is referring to the concept of “in rem” actions. Although in rem actions/jurisdiction have been used in some of the abusive civil forfeiture cases, the problem is broader.
Also, there are legitimate uses of in rem actions/jurisdiction that may cloud the discussion.
You also err in stating “all for the sake of revenue.” Many of such actions are more for the purpose of seizing and destroying contraband that does not involve revenue. Others combine, such as when they seize both the contraband and other things that have value such as the vehicle carrying it.
My thought too on seeing the case title. This is an in rem proceeding in admiralty law, common in the past but seemingly exotic today.
I do research in nineteenth-century admiralty records and see some pretty fun titles.
The key point is that the Constitution specifically prohibits seizure of property in this manner:
The fact that admiralty law predates this is irrelevant: we fought a war and wrote a Constitution to free us from British admiralty law.
The Court has, in essence, decided to just ignore several parts of the Constitution. Neither for the first or last time.
And, sadly, this is a product of the so-called Conservatives on the Court.
“Supreme Court Rejects Fifth and Fourteenth Amendment Protection Against the Forfeiture of an Innocent Owner’s Property. [PDF]”
This is a very brief summary of the paper linked at the end, and legal expert cited there drew the comparison with “in rem” actions, presumably to point out current laws are based on superstitions. Cases involving contraband could definitely have criminal charges attached, so the only reason they would use civil asset forfeiture would be revenue. They could do the same with a criminal warrant.
Again, this is offering a history of the legal pedigree of laws we have today, which indeed goes directly through admiralty law of the British Crown.
Exactly. And this is why organizations like FreedomWorks are engaging in public education on these laws, and in activism to encourage the passage of laws that would nullify civil asset forfeiture entirely.
It should be “largely for the sake of revenue”. While DoJ gives lip service to the notion that this is not a revenue source, it’s clearly used as such [PDF].
Love the blast from the past with Thornburgh, since he was my governor. But, that really is dated. Times have changed, and not for the better. There has been significant increase in these seizures, and even the ACLU is beating the drum against it. Earlier this summer they released a paper on the procedure to get property back, and that is why I say it really is about the revenue. http://www.aclupa.org/files/3214/3326/0426/Guilty_Property_Report_-_FINAL.pdf
Agreed. I think ctlaw’s in the wrong here, not you.
He’s right that there are narrow cases where the admiralty approach makes sense, but it’s largely when a crime is committed using specific property but the owner can’t be reached. One could see that approach being useful in dealing with Russian criminals who are protected by the Russian government, for instance.
But that’s a pretty narrow set of cases, and the overwhelming majority are against Americans who ought to be protected by our Constitution.
I included the Thornburgh link because he’s a Republican, and this is largely a Republican
policymistake.I found a gov’t website that promoted CAF to foreign gov’ts as a revenue source at one point, but couldn’t locate it in the few minutes I put into it. I think it was on the DoJ site, if memory serves.
You’re missing the point. I never said that the CAF program or its use of in rem jurisdiction was not for revenue. Of course they are.
What I said was that the first sentence misleadingly implied that all oddly titled in rem actions (whether CAF or not) were for the sake of revenue. I also said that the problems of CAF were broader than their use of in rem actions.
No, I don’t think we’re missing the point. I’ll admit that the in rem actions serve as a wonderful attention grabbing tool. While I didn’t mention them in the summary here, that report from FreedomWorks definitely gets into other issues, like banking rules that leave citizens at the mercy of government if a prosecutor decides to seize their assets based on how they deposit funds. The ACLU report gets into petty cash seizures that have turned into a cash cow for Philadelphia.
I think you phrased it poorly, ctlaw. “You also err” doesn’t imply “but I mostly agree with you”, now does it?
And it sounds like we’re in agreement.
Tuck
They key point is that the Constitution specifically prohibits seizure of property in this manner:
I can see how the courts can dodge the “due process requirement” – they can just argue that “due process” is whatever Congress says it is. I don’t see how they can legitimately dodge the “just compensation” requirement, though.
Due process has meaning that predates the Constitution and Congress, however. Congress can’t just change the meaning to make it go away. The Court is doing violence to both:
We’re going to take your stuff and you have to sue to get it back ain’t “due process”. It’s thievery.
Every law enforcement agency sees it as a magic sugar daddy, free money. Let’s be honest about it.
One of the worst Supreme Court decisions ever was Bennis v. Michigan, 516 U.S. 442 (1996). There, a husband used his wife’s car to solicit a prostitute. The state then confiscated the car, with no compensation to the wife, even though she knew nothing about the husband’s activity. And the Supreme Court said that was just fine and dandy. No justice for the wife. Just appalling.
The assertion that the owner must prove his innocence is (unfortunately) correct in most states . . . but not all.
I am a local prosecutor. I have never handled these “asset forfeitures” for our office, but I’ve heard a few things from a distance. In California, as in several other states, our office (the prosecutor) bears the burden of proof; we must prove, by clear and convincing evidence, that the property in question is ill-gotten gains from crimes, and/or was used to commit those crimes. Asset forfeiture is used primarily in cases involving narcotics.
My emphasis. Tuck, we may not like the way that these hearings are turning out, but it is incorrect to say this is happening in an unconstitutional manner. There is due process: these property owners are getting (1) notice and (2) an opportunity to be heard (a “hearing”).
That is the definition of due process. Quoting the “Due Process” article that you cite in a subsequent comment: “As it emerged from the English tradition, the essence of “due process of law” lay in the right of individuals to be notified of the charges against them, as well as their right to a fair hearing.”
Sorry, in our system:
In CAF, it’s punishment, notice, a hearing if you’re lucky, in which you’re presumed guilty until you prove you’re innocent.
You’re a prosecutor? That’s scary, but I guess a fine example of what’s wrong with our legal system. Perhaps you should familiarize yourself with the law in this area.
I suggest you start there. It comes highly recommended:
Whoa, dude. Seems a bit ad hominem . . . particularly your assumption that I’m not familiar with the law in this area.
If you argue from authority, then you invite one to call your authority in this matter into question. In fact, you’ve raised it as a valid topic of discussion.
I’m just taking you at your word: