Civil Asset Forfeitures

[Bricker]

@Dangerosa

I wonder, given the changes to our view of the 4th Amendment since then, if you would get the same ruling today or if the Supremes would overrule.

I am reasonably confident we would.

This seems to be a good way for liberal states to impose gun control on firearm sales, just have them under the risk of civil forfeiture - don’t even need a conviction - just something hinky in the paperwork - and no one ever does all their paperwork perfectly.

No, because the standard for civi forfeiture is a showing, by preponderance of the evidence, that the seized property is the fruit or instrumentality of a crime.

“Something hinky in the paperwork,” does not describe a crime. Not doing the paperwork perfectly is not a crime. Undoubtedly there’s some level of error that may rise to the level of apparent criminality, because at some point an egregious error will look sufficiently like a crime, but this doesn’t cover ordinary trivial error.

[mikecurtis]

@Dangerosa

This seems to be a good way for liberal states to impose gun control on firearm sales, just have them under the risk of civil forfeiture - don’t even need a conviction - just something hinky in the paperwork - and no one ever does all their paperwork perfectly. . .

@Bricker

No, because the standard for civi forfeiture is a showing, by preponderance of the evidence, that the seized property is the fruit or instrumentality of a crime.

“Something hinky in the paperwork,” does not describe a crime. Not doing the paperwork perfectly is not a crime. Undoubtedly there’s some level of error that may rise to the level of apparent criminality, because at some point an egregious error will look sufficiently like a crime, but this doesn’t cover ordinary trivial error.

I agree with Bricker. The CAF laws are designed to separate citizens from property they already own (and may have obtained from the profits of a crime, not neccessarily just used in one) . But that does bring up a second question; Where does the NRA stand on all this? How do they feel about someone’s legally owned weapon being confiscated without the owner being charged for a crime? Has this actually occurred? How often? In my research into this topic I don’t remember any such cases that stick out. . .

mc

[Saint_Cad]

@Bricker

No, because the standard for civi forfeiture is a showing, by preponderance of the evidence, that the seized property is the fruit or instrumentality of a crime.

Which is great in theory but in PRACTICE the procedures the State has put in place greatly favors the State (what a surprise). How many people are going to hire an attorney at a price that will eat up most of the forfeiture amount? What about the guy in Phoenix that lost his asset to the State because he did not respond to the public notice in the newspaper noting the fact that the State never contacted him although they knew it was his asset. What about the guy that could not file the proper motion with the Court because he was in jail at the time.

This abuse by the State to set up the rules that greatly favor themselves at the expense of law-abiding people is why we have a Bill of Rights. I suppose that you would say that if the State said a petitioner has to write his request in perfect Etruscan and be dropped off at the Clerk’s Office between 9:12:50 and 9:12:53 on the second Thursday of the month (with the left hand of course) while wearing a teal shirt otherwise the petition is invalid then it’s ok because IF the petitioner did all that then the State needs to prove their case by a preponderance of the evidence.

[Bricker]

@Saint_Cad

Which is great in theory but in PRACTICE the procedures the State has put in place greatly favors the State (what a surprise). How many people are going to hire an attorney at a price that will eat up most of the forfeiture amount? What about the guy in Phoenix that lost his asset to the State because he did not respond to the public notice in the newspaper noting the fact that the State never contacted him although they knew it was his asset.

Was that case cited in this thread, or elsewhere?

Is there more to the story?

What about the guy that could not file the proper motion with the Court because he was in jail at the time.

There’s nothing about being in jail that makes it impossible to file motions.

What are the details?

Sorry, but my experience is that these stories start to fall apart when examined closely.

Can I ask for cites, please?

This abuse by the State to set up the rules that greatly favor themselves at the expense of law-abiding people is why we have a Bill of Rights. I suppose that you would say that if the State said a petitioner has to write his request in perfect Etruscan and be dropped off at the Clerk’s Office between 9:12:50 and 9:12:53 on the second Thursday of the month (with the left hand of course) while wearing a teal shirt otherwise the petition is invalid then it’s ok because IF the petitioner did all that then the State needs to prove their case by a preponderance of the evidence.

Nope. That would be struck down.

Fortunately, no such rules apply in real life. So why can’t you argue using the actual rules, or with the actual cases you contend are violative of the Bill of Rights?

[Saint_Cad]

In Arizona if you do not win 100% of your money back you could be liable for the State’s legal fees. Interestinly I do not believe Arizona is responsible for the plaintiff’s fees if they succeed getting their assets back. According to you Bricker is that OK?

How about this process courtesy of Illinois

If your property wasn’t a house or wasn’t worth a certain amount, you will have to tell the court that you have a claim to that property and you want it back. This means you will have to file a claim and post a bond before the forfeiture process will begin. You will have to file a claim and post a bond if your property was:

Personal property, meaning it wasn't a house or an unmovable part of a house; and
Worth less than $150,000.

You will file this claim with the State’s Attorney’s office and you will have to include:

Your name
Your address
The caption of the proceedings, which can be found on the notice
Why you have an interest in the property
When you got the property
How you got the property
Who gave you the property
Who else has an interest in the property
That you didn't know about or help the criminal activity at all
Facts to help prove that you didn't know about or help the criminal activity
That you want your property returned to you

In addition to filing the claim, you will need to post a bond. This means you will give a check payable to the clerk of the court for either 10% of the reasonable value of the property or $100, whichever is greater. By posting this bond, you agree to pay all costs and expenses of forfeiture if you lose the case. If you can’t afford the bond, you can file an indigency affidavit.

If you win the forfeiture case, the clerk will return to you 90% of your bond. They will keep 10%. If you lose, the clerk will not return your bond to you.

So to get your property back you need to have 10% of it’s value. If you win, they still keep 10% of the bond (it’s only 1% but why should I have to pay anything to get my stuff back) and if it lose I have to pay all of the costs. Notice again if I win the cops don’t have to pay MY expenses. Is that OK Bricker for the State to put an inequity in the system to chill any potential lawsuit?

Or this trick

A Saginaw County assistant prosecuting attorney, the late George Best, initiated civil forfeiture proceedings against the Ostipows’ property. According to the Ostipows, Best told them simply to give him a list of the property they wanted to have returned to them. They did so, but Best used this against them, arguing that their handwritten list was not a proper answer to the complaint for forfeiture and that, therefore, they had waived their right to assert an innocent owner’s defense. The trial judge agreed and ordered the Ostipows’ property forfeited by default.

By the way, Saginaw County sold the assets so even though the Ostipows won after 8 years of litigation, there was nothing to recover. Interesting case that. Bricker talks about a preponderance of the evidence. Here is what the court accepts as evidence.

According to the attorneys, the Court of Appeals concluded that “when a person spends a significant amount of savings to purchase a nearby house,” he or she has “a continuing interest in ensuring that the house remains in good condition and should investigate for damages of a secondary house” if a burglary occurs. The appellate court determined that Gerald Ostipow’s action of fixing the tornado doors damaged in the incident but not investigating the residence for further damage was enough circumstantial evidence to show he “was aware that the farmhouse was used for illegal activity and wanted to avoid exposing the interior to himself or law enforcement,” according to the attorneys.

Or just basic blackmail. Give us the money or we’ll arrest you.

Frye suggested to Anderson that he might not have been aware of the money in his vehicle and began pressing him to sign a waiver relinquishing the cash, mentioning it at least five times over the next hour, the video shows.

“You’re going to be given an opportunity to disclaim the currency,” Frye told Anderson. “To sign a form that says, ‘That is not my money. I don’t know anything about it. I don’t want to know anything about it. I don’t want to come back to court.’ ”

Frye said that unless the driver agreed to give up the money, a prosecutor would “want to charge” him with a crime, “so that means you’ll go to jail.”

I’m sure there’s one or two violations of the Constitution in there Bricker.

[Bricker]

@Saint_Cad

In Arizona if you do not win 100% of your money back you could be liable for the State’s legal fees. Interestinly I do not believe Arizona is responsible for the plaintiff’s fees if they succeed getting their assets back. According to you Bricker is that OK?

Why would you not believe that Arizona is responsible for fees?

First of all, Arizona is the plaintiff. But assuming you mean the claimant’s fees, Arizona Revised Statutes 13-4314(F) clearly and unambiguously says that not only can Arizona be forced to pay “reasonable attorney fees, expenses and damages for loss of the use of the property” if the claimant prevails, the claimant doesn’t even have to totally win, just “substantially prevail.”

And if the state’s seizure was “intended to cause injury or was grossly negligent,” then Arizona is on the hook for treble damages and costs.

Also note that Arizona Revised Statutes 13-4311(M) requires that the state show by clear and convincing evidence that the property is subject to forfeiture. This is a step above mere “preponderance of the evidence.”

Where did your “belief” that Arizona was not liable for fees if they lose come from?

(I’ll tackle the Illinois research next).

[Bricker]

@Saint_Cad

So to get your property back you need to have 10% of it’s value. If you win, they still keep 10% of the bond (it’s only 1% but why should I have to pay anything to get my stuff back) and if it lose I have to pay all of the costs. Notice again if I win the cops don’t have to pay MY expenses. Is that OK Bricker for the State to put an inequity in the system to chill any potential lawsuit?

I don’t know what “OK,” means. Does it ask if I approve? Does it ask if the practice is constitutional?

Obviously I don’t approve: I’ve said before that I believe forfeiture should be grounded only in a prior criminal conviction.

But it’s generally constitutional, at least so far as I’m able to observe. I don’t know Illinois law all that well, but it seems to me that (a) in Illinois, the Due Process Clause is generally interpreted identically to the federal version (People v. Caballes, 221 Ill. 2d 282 (2006); (b) the Illinois forfeiture act is premised on the federal version and is to be interpreted in similar fashion (* People v. One Residence Located at 1403 East Parham Street*, 251 Ill. App.3d (1993); (c) filing the claim and cost bond is a legitimate prerequisite for judicial challenge of a civil forfeiture (People v. $1,124,905 U.S. Currency & One 1988 Chevrolet Astro Van, 177 Ill.2d 314 (1997).

Now, the cash bond is not a general requirement, and you didn’t correctly summarize the rules. The threshold in drug-related seizure, for example, is $20,000, not $150,000. So for the seizures that are alleged to be the result of suspicious drug money or property, you might have to post a bond of up to $2,000 to challenge the state’s forfeiture, and lose $200 if you prevail.

The only part of that I believe may not be constitutional is the up to $200 loss even if you win. I believe that’s weakened under the reasoning in Nelson v. Colorado, No. 15–1256, decided this year by the US Supreme Court.

[Saint_Cad]

I still don’t get how this is Constitutional even with your explanation.
You say the prosecution is against the property right? Why should “the property” have to put up ANY bond for the right to defend itself against the State? Would it be Constitutional for the State to require a real person to have to put up a bond to have the right to defend themselves or file an appeal against either civil or criminal prosecution? Is it fair for the state to set up a system where if you lose you pay their fees but that does not work in reverse - especially as the person did not initiate the case but the State did through the forfeiture.
How is the current CAF process NOT a case of the State putting barriers in place when the State says it is legal for the State to take your property when you haven’t committed a crime?

[Bricker]

@Saint_Cad

I still don’t get how this is Constitutional even with your explanation.
You say the prosecution is against the property right? Why should “the property” have to put up ANY bond for the right to defend itself against the State? Would it be Constitutional for the State to require a real person to have to put up a bond to have the right to defend themselves or file an appeal against either civil or criminal prosecution? Is it fair for the state to set up a system where if you lose you pay their fees but that does not work in reverse - especially as the person did not initiate the case but the State did through the forfeiture.
How is the current CAF process NOT a case of the State putting barriers in place when the State says it is legal for the State to take your property when you haven’t committed a crime?

The property is not defending itself. The bond is for the claimant, who wishes to intervene to assert his claim of valid ownership and demand that the state prove that the forfeiture is authorized.

The answer is that it’s never possible to ask a criminal defendant at trial to place a bond for his right to a trial in the first instance. . . but it’s of course not unusual at all to demand a bond for his appearance. That is, when arrested, the state may seek to compel attendance at trial by jailing the accused until trial. But if the accused posts a bond, he is permitted to leave jail, and the bond is security for his subsequent appearances.

In the civil realm, which I should point out is not really my area, there are a number of instances in which bonds or other attachments may come into play. In my state, courts of limited jurisdiction exist called General District courts; the court of general jurisdiction for the county is the Circuit Court.

Civil cases under a certain threshold are heard at the General District Court. When an appeal is taken, it’s an appeal as of right, meaning the appellant does not have to identify any errors or claim his trial was flawed. He just gets a new trial, with the judgement of the General District Court voided by the appeal.

But in order to do this, the losing party must post an appeal bond equal to the amount of the judgement against him. This prevents the first trial from being an empty gesture.

It’s also possible for a plaintiff in a civil trial to demand the attachment of assets pre-judgement – that is, to say to the court, “I’m suing Ed, and if I win, I’m concerned he’ll hide assets to make himself judgement-proof and just ignore any attempts to collect. So I am asking the court to make him place a bond now, or to order his assets frozen, so that he can’t dispose of them before I win.” I’m actually not sure what showing a plaintiff has to make in order to do that, but the mechanism exists.

And in fact, that’s kind of analogous to the Illinois bond. The state is saying, in effect, “Hey, I’ve already shown by probable cause this property is eligible for forfeit, and if I win I’m entitled to fees, so make the challenger post 10% (up to $2,000) to avoid this being a make-work challenge.”

The real sticking point is the retention of ten percent of the bond, one percent of the value, even if the claimant prevails. The more I think about that, the more I think the Supreme Court’s decision this year applies to that scheme and eviscerates it.