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Old 10-28-2012, 17:01   #1
Bruce M
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Forfeiture gone too far?

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/2012/10/2...ur-police.html
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Old 10-28-2012, 17:43   #2
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Any forfeiture should be subject to due process and conviction.
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Old 10-28-2012, 18:08   #3
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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.
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Old 10-28-2012, 18:34   #4
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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.
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Old 10-28-2012, 18:40   #5
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Quote:
Originally Posted by Willard View Post
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.
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Old 10-28-2012, 18:55   #6
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Quote:
Originally Posted by Sam Spade View Post
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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Old 10-28-2012, 19:06   #7
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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!
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Old 10-28-2012, 20:09   #8
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Quote:
Originally Posted by Willard View Post
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.
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Old 10-28-2012, 20:10   #9
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Quote:
Originally Posted by railfancwb View Post
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.
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Old 10-28-2012, 20:14   #10
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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.
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Old 10-28-2012, 20:29   #11
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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.
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Old 10-28-2012, 20:37   #12
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Quote:
Originally Posted by railfancwb View Post
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?
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Old 10-28-2012, 20:48   #13
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Quote:
Originally Posted by railfancwb View Post
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.
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Old 10-28-2012, 21:32   #14
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Quote:
Originally Posted by railfancwb View Post
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?

Thank god you are one of those who can read plain english!
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Old 10-28-2012, 22:08   #15
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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.
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Old 10-28-2012, 22:39   #16
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Quote:
Originally Posted by Bruce M View Post
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.
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Old 10-28-2012, 22:52   #17
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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.
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Old 10-29-2012, 05:24   #18
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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?
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Old 10-29-2012, 05:28   #19
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Fair? You want fair?
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Old 10-29-2012, 06:25   #20
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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.
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Old 10-29-2012, 07:36   #21
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Originally Posted by knoxvegasdaddy View Post
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.
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Old 10-29-2012, 08:04   #22
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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?

Last edited by CitizenOfDreams; 10-29-2012 at 08:04..
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Old 10-29-2012, 08:08   #23
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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?
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Old 10-29-2012, 08:26   #24
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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)) 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.
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Last edited by knoxvegasdaddy; 10-29-2012 at 08:28.. Reason: posted before finished by mistake
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Old 10-29-2012, 08:51   #25
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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.

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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.

Quote:
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.
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