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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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Last edited by Patchman; 10-28-2012 at 19:09..
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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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Last edited by DustyJacket; 10-28-2012 at 20:30..
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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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Originally Posted by TreverSlyFox View Post
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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