Forfeiture gone too far? [Archive] - Glock Talk

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Bruce M
10-28-2012, 17:01
I realize that the paper can sensationalize some things and has a liberal slant, but on the other hand some of the numbers and situations seem a bit unusual.

http://www.miamiherald.com/2012/10/27/3070784/feds-probe-bal-harbour-police.html

Willard
10-28-2012, 17:43
Any forfeiture should be subject to due process and conviction.

DaBigBR
10-28-2012, 18:08
While I definitely raise an eyebrow at an agency of 27 cops covering 2,700 people, the geography involved, and the sheer amount of cash involved, there is really not a lot of information in the article about the actual source of the cash and circumstances surrounding its seizure and forfeiture, which seems to be the typical complaint when forfeiture gets publicity.

Bruce M
10-28-2012, 18:34
I am a touch curious as to how an officer from there is stationed in Southern California. I am strongly in favor of using asset seizure as a tool but perhaps slightly less supportive if it becomes the goal.

Sam Spade
10-28-2012, 18:40
Any forfeiture should be subject to due process and conviction.

Due process, yes.

I can find no Constitutional requirement for conviction as a pre-requisite. If the people want civil hearings separate from criminal procedings, then that's acceptable.

railfancwb
10-28-2012, 18:55
I can find no Constitutional requirement for conviction as a pre-requisite. If the people want civil hearings separate from criminal procedings, then that's acceptable.

Absent a conviction what is the legal justification for forfeiture? Is it the same justification an armed robber uses - I have a gun and I am taking your property?

Constitutional prohibition... What about this?

AMENDMENT IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.




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Patchman
10-28-2012, 19:06
I know nothing about about the particulars mentioned above.

But civil forfeiture is like suing someone. Anyone can do it. The only difference here is that it's the .gov that's doing the "suing." And they have the advantage of already holding the assets.

Asset forfeiture is the same as a civil suit, that is, it's based on a a "more likely than not" standard. Same as when OJ was acquitted in criminal court for murder, but later found responsible in the civil suit. I don't remember anyone at the time crying how unfair that civil suit judgement against OJ was!

blueiron
10-28-2012, 20:09
Any forfeiture should be subject to due process and conviction.

Forfeiture is a civil process, not a criminal one. You are applying the rules of one to the other, as currently construed in law.

blueiron
10-28-2012, 20:10
Absent a conviction what is the legal justification for forfeiture? Is it the same justification an armed robber uses - I have a gun and I am taking your property?

Constitutional prohibition... What about this?

AMENDMENT IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.






You are quoting criminal process and not civil procedure. The difference is important and dissimilar.

blueiron
10-28-2012, 20:14
27 officers for a town of 2,574 people is well beyond the State or national average.

Forfeiture was a staple of the 1980s to strip drug lords of their profits, but I am suspicious of that department's motivations.

DustyJacket
10-28-2012, 20:29
27 officers for a town of 2,574 people is well beyond the State or national average.

No kidding.
My first department was 12 full time officers and 12 part time officers for well over 18,000 people.

Sam Spade
10-28-2012, 20:37
Absent a conviction what is the legal justification for forfeiture? Is it the same justification an armed robber uses - I have a gun and I am taking your property?

Constitutional prohibition... What about this?

AMENDMENT IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If this is your thinking, then you should be happy. The 4th only requires probable cause supported by oath to seize property. Civil forfeiture requires a preponderance of the evidence---a higher standard than PC---in a setting where the government's facts are subject to cross-examination.

Of course as has already been pointed out, you're applying a wholly irrelevant standard. The description of forfeiture as a lawsuit is an excellent one. The government sues to take possession of the fruits or instrumentalities of a crime. If they prove by the majority of the evidence that a thing is used in crime, or gained because of crime, they take it.

Are you going to claim that a person has a right to property that is the proceed of criminal activity?

DaBigBR
10-28-2012, 20:48
Absent a conviction what is the legal justification for forfeiture? Is it the same justification an armed robber uses - I have a gun and I am taking your property?


The difference is a forfeiture hearing, where evidence is presented justifying forfeiture. Do not confuse seizure and forfeiture.

Patchman
10-28-2012, 21:32
Absent a conviction what is the legal justification for forfeiture? Is it the same justification an armed robber uses - I have a gun and I am taking your property?

Constitutional prohibition... What about this?

AMENDMENT IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.




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"Seize" and "own" have totally different meanings? :dunno:

Thank god you are one of those who can read plain english!

TreverSlyFox
10-28-2012, 22:08
I've always considered "Asset Forfeiture" to be nothing more than Legalized Theft by the Government. The way it's been used in many cases hasn't changed my mind one bit.

lawman800
10-28-2012, 22:39
I am a touch curious as to how an officer from there is stationed in Southern California. I am strongly in favor of using asset seizure as a tool but perhaps slightly less supportive if it becomes the goal.

There is a very strong program in SoCal and small agencies attach their people to various Task Forces and you can get various percentages of any seizure depending on your level of involvement but there is a minimum "cut" so to speak.

It can get very lucrative if you throw a few people who are dedicated to that stuff.

scottydl
10-28-2012, 22:52
I've always considered "Asset Forfeiture" to be nothing more than Legalized Theft by the Government. The way it's been used in many cases hasn't changed my mind one bit.

It's a genius move as far as I'm concerned. Stealing drug dealers' illegal profits, and using them to legally fund drug enforcement... I mean it doesn't get any better than that. It's like the scene in Point Break where the crooks made Keanu Reeves (a kidnapped FBI agent investigating bank robbery) come with them to rob a bank. Only he had no gun and no mask. Or something like that.

^^ Those comments are unrelated to the original post/article, which I can't seem to read because I'm not a registered user of that news site.

knoxvegasdaddy
10-29-2012, 05:24
Of course as has already been pointed out, you're applying a wholly irrelevant standard. The description of forfeiture as a lawsuit is an excellent one. The government sues to take possession of the fruits or instrumentalities of a crime. If they prove by the majority of the evidence that a thing is used in crime, or gained because of crime, they take it. - from Sam Spade

Sam,
In your quote above, it seems you are saying that the agency is the plaintiff. I don't think that's right. In actual practice it goes more like this:

1. the seizure occurs.

2. WHETHER CHARGES ARE EVER FILED OR NOT, the seized assets AUTOMATICALLY become the property of the agency.

3. It is then up to the owner of the asset to choose to file a civil suit to recover the assets.

4. It the asset owner chooses to sue, they have the burden of hiring an attorney (and paying for it themselves) and paying the filing fees to get the case into civil court. Then they have the burden of proof, and must "prove a negative" (that the asset ISN'T from illegal activity)

5. If they lose, they are subject to paying the attorney's fees for the agency's attorneys.

6. If they win, they get their stuff back. They don't get back their time, lost time from work, or any court expenses. And, I have never heard of a judge making the agency pay the attorney's fees of the plaintiff.

In this scenario, the plaintiff loses even if they win. How is that even remotely fair?

eracer
10-29-2012, 05:28
Fair? You want fair?

Sam Spade
10-29-2012, 06:25
2. WHETHER CHARGES ARE EVER FILED OR NOT, the seized assets AUTOMATICALLY become the property of the agency.

3. It is then up to the owner of the asset to choose to file a civil suit to recover the assets.

4. It the asset owner chooses to sue, they have the burden of hiring an attorney (and paying for it themselves) and paying the filing fees to get the case into civil court. Then they have the burden of proof, and must "prove a negative" (that the asset ISN'T from illegal activity)

5. If they lose, they are subject to paying the attorney's fees for the agency's attorneys.

6. If they win, they get their stuff back. They don't get back their time, lost time from work, or any court expenses. And, I have never heard of a judge making the agency pay the attorney's fees of the plaintiff.

In this scenario, the plaintiff loses even if they win. How is that even remotely fair?

I'm sorry, you're wrong. Pretty much everything above is incorrect.

The government files claim and bears the burden of proof. You can see that simply by looking at the case cite: It's *always* "People v A Bunch of Stuff". And there is no "loser pays" in any civil proceeding (except when the government loses a 1983 suit and has to pay the citizen's costs).

Really, you're completely backwards here.

merlynusn
10-29-2012, 07:36
Of course as has already been pointed out, you're applying a wholly irrelevant standard. The description of forfeiture as a lawsuit is an excellent one. The government sues to take possession of the fruits or instrumentalities of a crime. If they prove by the majority of the evidence that a thing is used in crime, or gained because of crime, they take it. - from Sam Spade

Sam,
In your quote above, it seems you are saying that the agency is the plaintiff. I don't think that's right. In actual practice it goes more like this:

1. the seizure occurs.

2. WHETHER CHARGES ARE EVER FILED OR NOT, the seized assets AUTOMATICALLY become the property of the agency.

3. It is then up to the owner of the asset to choose to file a civil suit to recover the assets.

4. It the asset owner chooses to sue, they have the burden of hiring an attorney (and paying for it themselves) and paying the filing fees to get the case into civil court. Then they have the burden of proof, and must "prove a negative" (that the asset ISN'T from illegal activity)

5. If they lose, they are subject to paying the attorney's fees for the agency's attorneys.

6. If they win, they get their stuff back. They don't get back their time, lost time from work, or any court expenses. And, I have never heard of a judge making the agency pay the attorney's fees of the plaintiff.

In this scenario, the plaintiff loses even if they win. How is that even remotely fair?

That isn't the way it happens here.

We seize the money/items and they are held pending a hearing. The assets do NOT become the property of the agency without due process (a legal, judicial hearing). The state is the Plaintiff and the person the items were seized from is the defendant. The state issues a notice of hearing and if the Defendant does not show up, the Plaintiff gets a default judgement. If the Defendant does show up, the Plaintiff has to show the items seized were a result of criminal activity. The Judge then renders a verdict.

CitizenOfDreams
10-29-2012, 08:04
According to the article from the original post, "the vice unit makes few arrests, but seizes a fortune in cash".

What do you call it when the police takes criminals' money and lets them stay out of jail?

knoxvegasdaddy
10-29-2012, 08:08
That isn't the way it happens here.

We seize the money/items and they are held pending a hearing. The assets do NOT become the property of the agency without due process (a legal, judicial hearing). The state is the Plaintiff and the person the items were seized from is the defendant. The state issues a notice of hearing and if the Defendant does not show up, the Plaintiff gets a default judgement. If the Defendant does show up, the Plaintiff has to show the items seized were a result of criminal activity. The Judge then renders a verdict.

As I understand it, it is completely different here (as i said in my first post, it is the exact opposite). If my info is wrong, please do correct me by explaining the actual procedure used.

When assets are seized WITH CRIMINAL CHARGES attached, and you are found guilty you lose your stuff. As you should, and I have no problem with this at all.

If you are acquitted, you get your stuff back. As you should.

Here's the dirty 3rd possibility: Assets are seized, but NO charges are ever filed. If you are not charged, how do you get your stuff back? In Tennessee, you have to go to court and file suit as the plaintiff. It is $124.50 in knox co to file a civil lawsuit under $25,000, and $195.00 to file above 25,000, plus a 500.00 court surety bond.

Due to the fact that this becomes a civil case, you have no "right to your day in court", you have to pay for your own attorney (the court has no court appointed civil attorneys, do they?)

If you fight the case and lose, the opposing party can ask for reimbursement of expenses, legal fees, etc., and the court frequently grants this, right?

knoxvegasdaddy
10-29-2012, 08:26
I'm sorry, you're wrong. Pretty much everything above is incorrect.

The government files claim and bears the burden of proof. You can see that simply by looking at the case cite: It's *always* "People v A Bunch of Stuff". And there is no "loser pays" in any civil proceeding (except when the government loses a 1983 suit and has to pay the citizen's costs).

Really, you're completely backwards here.

Sam,

I really respect your knowledge (I've read all of your stickies:supergrin:)) so I'd appreciate it if you would break down my post and explain, point by point, which parts are wrong.

Also, which parts of "due process" applies in civil court? Are you entitled to a free attorney if you cannot afford one? What if property is seized and the Agency never "gets around" to filing an actual seizure case?


I firmly believe that bad guys should be held to the standard of "crime doesn't pay". I've also heard many a story of people losing cars and other property because they simply can't spend 5,000$ to get a 4,000$ car back.

scottydl
10-29-2012, 08:51
Just like many legal issues we discuss here, every state is different. Federal seizures are a different process than state seizures. I can speak with some knowledge for Illinois.

Also, which parts of "due process" applies in civil court? Are you entitled to a free attorney if you cannot afford one? What if property is seized and the Agency never "gets around" to filing an actual seizure case?

Due process is just the specific legal procedure afforded to everyone. Yes that still exists in a civil case, it's not as if the state can just make up the rules as they go along.

Court-appointed attorneys are under the protection against self-incrimination, a separate issue than due process (like comparing criminal and civil earlier... different set of rules).

Nobody is afforded a public defender in any civil case, and people represent themselves all the time in forfeiture hearings where I'm from. They usually lose, but that's because we don't seize stuff unless (1) it's been used in the commission of a felony, and (2) the owner has done it or allowed it.

If LEA's are seizing property without a preponderance of the evidence, and not giving the owners the due process to claim it back, then that's a separate problem that may involve misconduct on a variety of levels. The Department of Justice should get involved.

I firmly believe that bad guys should be held to the standard of "crime doesn't pay". I've also heard many a story of people losing cars and other property because they simply can't spend 5,000$ to get a 4,000$ car back.

Sounds like crime clearly didn't pay for them in those cases.

Q: Who doesn't bother to show up and defend themselves?
A: Guilty people.

We all "hear stories" and I'm guessing they left some parts out when they made themselves sound like the victims in your example above.

merlynusn
10-29-2012, 09:12
Knox,

Here is the Tennessee Highway Patrol Forfeiture page. It backs up what I'm saying.

http://www.tn.gov/safety/thp/forfeit.shtml

tc215
10-29-2012, 09:19
As I understand it, it is completely different here (as i said in my first post, it is the exact opposite). If my info is wrong, please do correct me by explaining the actual procedure used.

When assets are seized WITH CRIMINAL CHARGES attached, and you are found guilty you lose your stuff. As you should, and I have no problem with this at all.

If you are acquitted, you get your stuff back. As you should.

Here's the dirty 3rd possibility: Assets are seized, but NO charges are ever filed. If you are not charged, how do you get your stuff back? In Tennessee, you have to go to court and file suit as the plaintiff. It is $124.50 in knox co to file a civil lawsuit under $25,000, and $195.00 to file above 25,000, plus a 500.00 court surety bond.

Due to the fact that this becomes a civil case, you have no "right to your day in court", you have to pay for your own attorney (the court has no court appointed civil attorneys, do they?)

If you fight the case and lose, the opposing party can ask for reimbursement of expenses, legal fees, etc., and the court frequently grants this, right?

No, none of that is right for Tennessee.

DaBigBR
10-29-2012, 11:54
But it IS right for what is frequently circulated on the internet. ;)

series1811
10-29-2012, 12:52
As I understand it, it is completely different here (as i said in my first post, it is the exact opposite). If my info is wrong, please do correct me by explaining the actual procedure used.

When assets are seized WITH CRIMINAL CHARGES attached, and you are found guilty you lose your stuff. As you should, and I have no problem with this at all.

If you are acquitted, you get your stuff back. As you should.

Here's the dirty 3rd possibility: Assets are seized, but NO charges are ever filed. If you are not charged, how do you get your stuff back? In Tennessee, you have to go to court and file suit as the plaintiff. It is $124.50 in knox co to file a civil lawsuit under $25,000, and $195.00 to file above 25,000, plus a 500.00 court surety bond.

Due to the fact that this becomes a civil case, you have no "right to your day in court", you have to pay for your own attorney (the court has no court appointed civil attorneys, do they?)

If you fight the case and lose, the opposing party can ask for reimbursement of expenses, legal fees, etc., and the court frequently grants this, right?

There is so much wrong in here, I don't even know where to start.

As to the Bal Harbor PD seizures. The article leaves out so much it is hard to understand what they are alleging happened, exactly. I don't understand how the Bal Harbor PD would be getting venue to make seizures out of state without assistance from some agency in that other venue. If they are doing that-- seizing assets in another venue, and then just repatriating the assets to Florida with no legal process-- that would be interesting.

But, I learned a long time ago to not make judgments based on news reports. For some reason, reporters do not like to have subject matter experts review their articles for accuracy.

Clutch Cargo
10-29-2012, 13:11
The intent of stripping drug lords of property got out of hand. Drug lords simply went to renting real property, automobiles, boats, planes, etc.

Taking daddy's new BMW from a kid with a crack rock has NOTHING to do with a drug lord. PUNISH the kid.

A kid selling a little pot from his bedroom at grandma's is not reason to seize grandma's home of 50 years. Grandma was clueless to her grandson's activity. Punish the kid.

randrew379
10-29-2012, 13:38
Reason.com had an article on this today- a few more details there, I believe. Of course the usual suspects are defending this nonsense here on GT. It is theft and unfortunately the SCOTUS has let it slide. Hooray for the WOD.

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Sam Spade
10-29-2012, 14:19
Reason.com had an article on this today- a few more details there, I believe. Of course the usual suspects are defending this nonsense here on GT. It is theft and unfortunately the SCOTUS has let it slide. Hooray for the WOD.

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I can't see from your history that you have much of a grasp on just who the "usual suspects" are. Perhaps I should be looking under another user name?

I can see that you've offered an opinion without either support or qualification. So why should we give it any weight?

Ohio Cop
10-29-2012, 14:50
The intent of stripping drug lords of property got out of hand. Drug lords simply went to renting real property, automobiles, boats, planes, etc.

Taking daddy's new BMW from a kid with a crack rock has NOTHING to do with a drug lord. PUNISH the kid.

A kid selling a little pot from his bedroom at grandma's is not reason to seize grandma's home of 50 years. Grandma was clueless to her grandson's activity. Punish the kid.

Are these inferences or actual cases?


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Patchman
10-29-2012, 15:29
Reason.com had an article on this today- a few more details there, I believe. Of course the usual suspects are defending this nonsense here on GT. It is theft and unfortunately the SCOTUS has let it slide. Hooray for the WOD.

posted using Outdoor Hub Campfire (http://www.outdoorhub.com/mobile/)

This is the way civil forfeiture works as of today. If you're unsatisfied, contact your local, state and federal level politicians about changing civil forfeiture laws.

Don't whine. Make change. YES YOU CAN!

scottydl
10-29-2012, 15:31
Don't whine. Make change. YES YOU CAN!

:rofl:

RyanNREMTP
10-29-2012, 15:59
Possession is 9/10s of the law. :p

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series1811
10-29-2012, 16:04
The intent of stripping drug lords of property got out of hand. Drug lords simply went to renting real property, automobiles, boats, planes, etc.

Name some drug lords that did this. And, tell why you think that would make a difference once the police found out.

Taking daddy's new BMW from a kid with a crack rock has NOTHING to do with a drug lord. PUNISH the kid.

Show us the case where this happened with no other facts that would remove the father from innocent owner status.

A kid selling a little pot from his bedroom at grandma's is not reason to seize grandma's home of 50 years. Grandma was clueless to her grandson's activity. Punish the kid.

Okay, show us where this happened.

Patchman
10-29-2012, 16:12
The intent of stripping drug lords of property got out of hand. Drug lords simply went to renting real property, automobiles, boats, planes, etc.

Taking daddy's new BMW from a kid with a crack rock has NOTHING to do with a drug lord. PUNISH the kid.

A kid selling a little pot from his bedroom at grandma's is not reason to seize grandma's home of 50 years. Grandma was clueless to her grandson's activity. Punish the kid.

If every vehicle involved with drugs or a crime was forfeited, then LE would be selling more cars than GM and Toyota combined.

Same thing with grandma's house and Century 21.

:dunno:

Patchman
10-29-2012, 16:14
The intent of stripping drug lords of property got out of hand. Drug lords simply went to renting real property, automobiles, boats, planes, etc.

Taking daddy's new BMW from a kid with a crack rock has NOTHING to do with a drug lord. PUNISH the kid.

A kid selling a little pot from his bedroom at grandma's is not reason to seize grandma's home of 50 years. Grandma was clueless to her grandson's activity. Punish the kid.

Nice sound bite... but the reality is...

If every vehicle involved with drugs or a crime was forfeited, then LE would be selling more cars than GM and Toyota combined.

Same thing with grandma's house and Century 21.

:dunno:

knoxvegasdaddy
10-30-2012, 06:24
Knox,

Here is the Tennessee Highway Patrol Forfeiture page. It backs up what I'm saying.

http://www.tn.gov/safety/thp/forfeit.shtml


I read it all. It also backs up more than half of what I'm saying.

First, the terms "plaintiff" and "defendant" don't apply. The State never refers to itself by a specific term. The person who had their property seized is a "claimant" IF THEY FILE A CLAIM against the seizure. (if they file nothing and make no claim, they are a "loser":whistling:)


I was totally wrong about having to sue the state. They go ahead and file against you. Except they don't really file a lawsuit. An actual civil lawsuit would be filed in an actual civil court, and as a "defendant", would cost no money to respond to.

Instead, they serve a "notice of seizure" via certified mail, and
"returned certified mail is considered notice" (that's really fair).

If the "claimant" wishes to contest the seizure, they must pay $350.00 and file a "petition of hearing" within 30 days of notice.

If the claimant doesn't have $350.00, then they can file an "Affadavit of indigency and pauper's oath". If the affadavit is denied, then they have 10 days to file a "request for hearing" (please note that this is different from a "petition for hearing") If your request is denied, then you have 10 days to pay the $350, or lose your stuff.

Also, please note that it is $350.00 FOR EACH ITEM SEIZED. So, if your truck, which was towing your boat, which had a gun in it, were all seized, you get to pay $1050.00 in order to "have your day in court".

Once you make it to court (Administrative law judge, NOT Circuit or General Sessions), you can indeed bring a lawyer, AT YOUR OWN EXPENSE.

If you win, you get your stuff back. The State makes no mention of a refund of the $350. It also makes no mention of the possibility of a reimbursement of legal expenses, nor any other expenses, so I'm guessing that's a no. I have no idea if you can counter sue for wrongful seizure in Administrative law court.


So, as it turns out, I'm actually about 90% right. The only thing I was wrong on is the plaintiff/defendant/claimant terminology and the question of who files against who. I was very wrong on that one.

Other than that, looks like everything else I said was right.

As I've said many times, I come hear to LEARN. So, Sam Snead, Series1811, is there anything else I got wrong?

knoxvegasdaddy
10-30-2012, 06:50
The part that bugs me is the money. If the process were free, I'd have no problem with it AT ALL.

In the real world, I consider you an idiot to spend $350.00, take an hour of your time to fill out the hearing petition, then take a day off from work, go to court, and risk a perjury trap, in order to get back a $500.00 item.

You'd be even dumber to hire a lawyer for this (10 Hrs @ 100.00 = a $1,000.00 retainer) and spend 1,350.00, plus the time off, to try to get back an item worth less than $2,000.00

So, really, its not just the guilty that don't try to recover their assets, its the poor, and and anyone burdened with the ability to do simple math.

Knowing this, it would be EXTREMELY easy to take guns, old cars, cheap boats, cash,etc. from people who can't pay, or wouldn't fight it because of the risk/reward equation.

If there were even a small risk of financial cost or penalty to the agency for a successful seizure challenge, I believe that petty seizures (under say $2,500.00 value in Tennessee) would drop dramatically.

series1811
10-30-2012, 07:05
I read it all. It also backs up more than half of what I'm saying.

First, the terms "plaintiff" and "defendant" don't apply. The State never refers to itself by a specific term. The person who had their property seized is a "claimant" IF THEY FILE A CLAIM against the seizure. (if they file nothing and make no claim, they are a "loser":whistling:)


I was totally wrong about having to sue the state. They go ahead and file against you. Except they don't really file a lawsuit. An actual civil lawsuit would be filed in an actual civil court, and as a "defendant", would cost no money to respond to.

Instead, they serve a "notice of seizure" via certified mail, and
"returned certified mail is considered notice" (that's really fair).

If the "claimant" wishes to contest the seizure, they must pay $350.00 and file a "petition of hearing" within 30 days of notice.

If the claimant doesn't have $350.00, then they can file an "Affadavit of indigency and pauper's oath". If the affadavit is denied, then they have 10 days to file a "request for hearing" (please note that this is different from a "petition for hearing") If your request is denied, then you have 10 days to pay the $350, or lose your stuff.

Also, please note that it is $350.00 FOR EACH ITEM SEIZED. So, if your truck, which was towing your boat, which had a gun in it, were all seized, you get to pay $1050.00 in order to "have your day in court".

Once you make it to court (Administrative law judge, NOT Circuit or General Sessions), you can indeed bring a lawyer, AT YOUR OWN EXPENSE.

If you win, you get your stuff back. The State makes no mention of a refund of the $350. It also makes no mention of the possibility of a reimbursement of legal expenses, nor any other expenses, so I'm guessing that's a no. I have no idea if you can counter sue for wrongful seizure in Administrative law court.


So, as it turns out, I'm actually about 90% right. The only thing I was wrong on is the plaintiff/defendant/claimant terminology and the question of who files against who. I was very wrong on that one.

Other than that, looks like everything else I said was right.

As I've said many times, I come hear to LEARN. So, Sam Snead, Series1811, is there anything else I got wrong?

If you are still thinking you were ninety per cent right, you have a long way to go.

One thing you might consider is that a lot of your complaint is about processes that are used in all lawsuits, not just forfeiture lawsuits.

merlynusn
10-30-2012, 07:48
I read it all. It also backs up more than half of what I'm saying.

Snip....

Not really. Your problem was with the due process part and also with the fact that it would make officers more likely to wrongly seize items.

What this does is they immediately go to a judge who finds probable cause for the seizure. If the judge does not, guess what, it goes right back to the individual who had it seized from them.

Yes, typically when you seize someone's car because they have 10 pounds of narcotics in it, they won't contest the seizure. The State is providing notice and giving you the option to contest the seizure and thus, get your due process in a court of law. If you choose not to do so, you are effectively admitting your guilt and allow the state to take possession of it.

Me personally, if I had something wrongly seized, I'd fight tooth and nail to get it back. Then I'd sue for the illegal seizure.

Every car or house that has drugs in it is not seized. I don't take the $10 the addict with one crack rock has because that's stupid. Those that do are not using the laws as they were intended. Now the guy who has 30 baggies of marijuana and $2000 cash, yes, I'm seizing the cash.

When you are arrested, you are required to provide a valid address. This is so the court system can contact you if need be. The reason a returned certified mail is considered valid is that is the address you gave the courts. If you purposely gave a false address, that is your fault. People would not accept service and thus they'd claim they were never served notice and keep the process going. It was a change for expediency. Would you give the cops/courts a false address if your car or cash were taken? I highly doubt it.

Being provided a lawyer at no expense (excuse, me, my expense because I'm a tax payer or the attorneys expense because their bar dues help pay for indigent defense) is only for a criminal trial. Keep in mind this is an administrative hearing, not a criminal hearing.

scottydl
10-30-2012, 08:03
As I've said many times, I come hear to LEARN.

The crucial factor that you might be forgetting (although you have mentioned it) is that the government doesn't just seize anything they want for any reason. The only things generally taken are items used in the commission of a felony (or other qualifying offenses depending on your state), and items specifically used by the owner or with the knowledge of the owner. In various conspiracy cases, this also includes seizure of cash and items purchased from profits of illegal felony activities such as drug sales, money laundering, bank robbery, etc.

If some so-called innocent person "accidentally" falls into one of those categories and gets their stuff seized, then they are hanging out with the wrong people. But I do not believe that there are many innocent victims of the government in these cases. In my experience, it just doesn't happen (statistically speaking). Yes, there have probably been some mistakes in the past... there is no such thing as a perfect system of justice.

tc215
10-30-2012, 08:36
I read it all. It also backs up more than half of what I'm saying.

First, the terms "plaintiff" and "defendant" don't apply. The State never refers to itself by a specific term. The person who had their property seized is a "claimant" IF THEY FILE A CLAIM against the seizure. (if they file nothing and make no claim, they are a "loser":whistling:)


I was totally wrong about having to sue the state. They go ahead and file against you. Except they don't really file a lawsuit. An actual civil lawsuit would be filed in an actual civil court, and as a "defendant", would cost no money to respond to.

Instead, they serve a "notice of seizure" via certified mail, and
"returned certified mail is considered notice" (that's really fair).

If the "claimant" wishes to contest the seizure, they must pay $350.00 and file a "petition of hearing" within 30 days of notice.

If the claimant doesn't have $350.00, then they can file an "Affadavit of indigency and pauper's oath". If the affadavit is denied, then they have 10 days to file a "request for hearing" (please note that this is different from a "petition for hearing") If your request is denied, then you have 10 days to pay the $350, or lose your stuff.

Also, please note that it is $350.00 FOR EACH ITEM SEIZED. So, if your truck, which was towing your boat, which had a gun in it, were all seized, you get to pay $1050.00 in order to "have your day in court".

Once you make it to court (Administrative law judge, NOT Circuit or General Sessions), you can indeed bring a lawyer, AT YOUR OWN EXPENSE.

If you win, you get your stuff back. The State makes no mention of a refund of the $350. It also makes no mention of the possibility of a reimbursement of legal expenses, nor any other expenses, so I'm guessing that's a no. I have no idea if you can counter sue for wrongful seizure in Administrative law court.


So, as it turns out, I'm actually about 90% right. The only thing I was wrong on is the plaintiff/defendant/claimant terminology and the question of who files against who. I was very wrong on that one.

Other than that, looks like everything else I said was right.

As I've said many times, I come hear to LEARN. So, Sam Snead, Series1811, is there anything else I got wrong?

Yes, you're still wrong.

You get your $350 back if the judge rules to return your property.

The notice of seizure is given immediately to the defendant when the property is seized. The defendant signs for it and gets a copy. The Department of Safety mails the defendant additional information.

You also make no mention of the fact that the seizing officer had five business days to go in front of a judge for a hearing. The judge then determines if there was probable cause to seize whatever was seized and signs an affidavit.

tc215
10-30-2012, 08:38
The part that bugs me is the money. If the process were free, I'd have no problem with it AT ALL.

In the real world, I consider you an idiot to spend $350.00, take an hour of your time to fill out the hearing petition, then take a day off from work, go to court, and risk a perjury trap, in order to get back a $500.00 item.

You'd be even dumber to hire a lawyer for this (10 Hrs @ 100.00 = a $1,000.00 retainer) and spend 1,350.00, plus the time off, to try to get back an item worth less than $2,000.00

So, really, its not just the guilty that don't try to recover their assets, its the poor, and and anyone burdened with the ability to do simple math.

Knowing this, it would be EXTREMELY easy to take guns, old cars, cheap boats, cash,etc. from people who can't pay, or wouldn't fight it because of the risk/reward equation.

If there were even a small risk of financial cost or penalty to the agency for a successful seizure challenge, I believe that petty seizures (under say $2,500.00 value in Tennessee) would drop dramatically.

Bottom line is, don't be doing anything illegal to get your stuff seized, and you won't have to worry about it.

series1811
10-30-2012, 08:51
Another thing. People who dislike government forfeiture of property that is the proceeds of, or used to facilitate, a crime, act like it is a relatively new law.

Most are surprised to learn that it has existed since the formation of the United States, and was adapted from English common law (government forfeiture of criminal property apparently not being one of the things that irked the colonists when they decided to revolt from England).

scottydl
10-30-2012, 12:42
Bottom line is, don't be doing anything illegal to get your stuff seized, and you won't have to worry about it.

:perfect10:

Kingarthurhk
10-30-2012, 16:33
Absent a conviction what is the legal justification for forfeiture? Is it the same justification an armed robber uses - I have a gun and I am taking your property?

Constitutional prohibition... What about this?

AMENDMENT IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.




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Scenario:

A smuggler is caught driving a load of illegal aliens.

The car doesn't belong to the smuggler or any of the illegal aliens, isn't stolen, but not properly registered.

What do you do with said car?

After inventorying the vehicle after arrest, again, no known owner.

The smugler disavows knowledge of anything including the vehicle.

The ASUA dumps the case.

The car still remains.

Again, what do you do with said car?

It was used in a crime, no one claims the vehicle, and because it is improperly registered no owner can be located.

It would seem forfeiture is not a bad idea, no?

Ohio Cop
10-30-2012, 16:36
Scenario:

A smuggler is caught driving a load of illegal aliens.

The car doesn't belong to the smuggler or any of the illegal aliens, isn't stolen, but not properly registered.

What do you do with said car?

Impound it with a court hold.


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Kingarthurhk
10-30-2012, 16:40
Impound it with a court hold.


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You can't impound it forever. If you have your own lot, you have limited space. If you are using a private lot, it costs money.

So, logically, again, forfeiture only makes sense.

Ohio Cop
10-30-2012, 16:45
You can't impound it forever. If you have your own lot, you have limited space. If you are using a private lot, it costs money.

So, logically, again, forfeiture only makes sense.

Court can release it. We have thirty days to hold it and then it's a nuisance and its sold under Ohio law.


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razdog76
10-30-2012, 17:06
Scenario:

A smuggler is caught driving a load of illegal aliens.

The car doesn't belong to the smuggler or any of the illegal aliens, isn't stolen, but not properly registered.

What do you do with said car?

After inventorying the vehicle after arrest, again, no known owner.

The smugler disavows knowledge of anything including the vehicle.

The ASUA dumps the case.

The car still remains.

Again, what do you do with said car?

It was used in a crime, no one claims the vehicle, and because it is improperly registered no owner can be located.

It would seem forfeiture is not a bad idea, no?

Car would be impounded for Fictitious Registration and/or Criminal Tools, and sit in the impound lot until the case is over, or it is released by the prosecutor

Once it can be released, the owner must show up with proof of ownership. Once the impound storage bill exceeds the value of the vehicle, we obtain a salvage title and it gets auctioned on govdeals.com.

Although not 100% sure, but I believe my Ohio Sheriff's Office holds them longer than 30 days.

Patchman
10-31-2012, 16:32
Another thing. People who dislike government forfeiture of property that is the proceeds of, or used to facilitate, a crime, act like it is a relatively new law.

Most are surprised to learn that it has existed since the formation of the United States, and was adapted from English common law (government forfeiture of criminal property apparently not being one of the things that irked the colonists when they decided to revolt from England).

Let's not forget that after the revolution... all loyalist properties (homes, farms, etc...) were seized and sold by the local and colony authorities. And most of the loyalists had escaped/departed to either England or Nova Scotia, so they weren't even in the colonies to fight these forfeitures.

Bruce M
10-31-2012, 18:56
Don't get me wrong - I like the concept of forfeiture as a tool to help weaken criminal enterprises. I just do not think it should be the goal or at least not the goal all the time. And I am not saying that in this case it is, but rather, that there do seem to be some unusual circumstances with this agency. Perhaps they are easily explained. But I do think some of the questions are worth of inquiry.

jethro21
10-31-2012, 20:21
I think most of us here would agree this story at face value is odd, being that such a small agency is bringing in so much money.

I am involved in street level drug enforcement and rarely do I come across something that is worth the time investment to seize, let alone any other factors. Our narc squads do focus a large amount of time working toward seizures. Often they do not arrest people the first time they contact them and often they are able to hit the same suspects up several times for drugs and for money. Eventually charges are filed however, but waiting and building a case, as well as following the money trails are important to hitting the real culprits where it hurts.

Seizure money goes to my city's general fund, and frankly the city council likes it. RICO money goes to provide equipment and public safety benefits in the end.

The article makes specific mention of money paid to snitches. Having done work with numerous snitches (although not to level which this department has) I am ok with paying them even sizeable amounts of money. Typical going rate around here is between 10%-20% of what the department seizes, tax free cash. While that may raise some eyebrows consider that most LEO will never be able to gain the contacts and information snitches are able to, as well as the very real threat to snitches safety for the service they provide. Heck, we have a snitch who still puts in work from time to time, despite having been stabbed and shot several times.

I guarantee the DEA, ATF and other alphabet agencies would show similar trends if audited...

Newcop761
10-31-2012, 22:19
Impound it with a court hold.

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Smuggling / harboring aliens is a felony. If you use a vehicle to transport them it's forfeit. If you use a drop house to house them... guess what?

What nobody mentions is that when seizing real property the government agency that initiates the asset forfeiture is on the hook to maintain the property until the process is complete.

Asset forfeiture generally is not something that is done as a lark or just "because I can".

The (poorly written) article raises a lot of questions. I'll be interested to see what the results of the ongoing investigation are.

knoxvegasdaddy
11-01-2012, 06:44
Don't get me wrong - I like the concept of forfeiture as a tool to help weaken criminal enterprises. I just do not think it should be the goal or at least not the goal all the time.


Thank you Bruce, well said! I agree with seizure too, I just think it is used unfairly sometimes.

Bruce M
11-01-2012, 08:51
...I am involved in street level drug enforcement and rarely do I come across something that is worth the time investment to seize, let alone any other factors. ...

I know of an agency that worked hard to seize a dealers ~decade plus old General Motors full size sedan. The vehicle was not really worth alot of money. After they seized it, they would sporadically drive by the the guys house and hit the siren. I am guessing sometimes there might be some psychological effects.

dwhite53
11-01-2012, 15:19
Asset forfeiture generally is not something that is done as a lark or just "because I can".


Unfortunately, sometimes it is "just because WE can".

http://www.policeone.com/police-products/investigation/articles/1704668-Saga-of-N-C-police-corruption-ends/

http://www.npr.org/templates/story/story.php?storyId=91555835


All the Best,
D. White

Patchman
11-01-2012, 16:35
Unfortunately, sometimes it is "just because WE can".

All the Best,
D. White


Imagine if your local LE was privatized to the lowest bidder! And operated with the motto "just because we contractually can."