Indeed, it was one of the causes of the American Revolution since so many of the revolutionaries were smugglers/pirates and opposed to any taxation of their livings.
So:
The early Congress wrote forfeiture laws based on British maritime law to help federal tax collectors collect customs duties, which financed most of the expenses of the federal government in the early days of the republic. Seizures allowed government to confiscate property from citizens who failed to pay taxes or customs duties.
After some dabbling using it in Prohibition, the modern start was under Reagan in the early 1980s; the British immediately copied the Americans — bringing it all full circle — with the Drug Trafficking Offences Bill of 1984 under Ronnie’s partner in crime, Lady Thatch, leading to tremendous opposition to any forfeiture from Enoch Powell.
He was particularly annoyed at the idea banks would reveal details of people’s accounts. Before that, British bank managers had the same reaction as Swiss today to prying questions regarding their customers’ business.
So I get stopped by the cops. They notice I have $10,000 and seize it based on something about drugs. No drugs are found and charges are never filed. Are you saying all I have to do is go to my county court and file a court case and since there is no evidence of a crime I can get my money back just like that? No attorneys or endless court cases?
Please note that I am taking your description as accurate: there is no evidence of a crime. This means the seizing agency cannot carry their burden to show, by preponderance of the evidence, that the money is the fruit of some crime; there is no evidence.
Most civil forfeiture cases are either for people who are clearly and obviously guilty or for amounts under $200. In the latter case, you clearly wont bother with a lawyer and even taking a day off work is problematic. So free money for the police. :mad:
The law has to be changed so the the funds are automatically given back unless criminal charges are filed within so many days.
Sure. I think forfeiture laws should be premised on criminal convictions, and are unduly onerous and in some cases violative of the Eighth Amendment’s Excessive Fines clause.
That has nothing to do with correcting the inaccurate claims about the allocation of the burden of proof.
And for everyone else, here’s a fun quiz. One of these quotes was issued by the Cato Institute and the other was issued by the American Civil Liberties Union. Guess which is which:
Come on, counselor. You of all people should use the precise definition of words. “Prevent” means “to stop from happening.” Since unreasonable searches and seizures happen dozens of times a day in this country, the 4th Amendment does nothing to “prevent” them. All it does is give you some legal grounds for challenging a search. You are really quick to jump on anybody who says that members of the Trump Administration have committed felonies and treason. You wave the very specific legal definition of “treason” in the air like a banner. So you have to admit the the 4th Amendment “prevents” unreasonable searches and seizures" the same way PC187 “prevents” murders in California, ie not at all.
Basically, there goes Bricker again, defending to the death a egregious abomination of laws simply by pointing out they they are, in fact, the laws. It’s just something that lawyers do.
In Guillermo Espinoza’s case the trial court found, by preponderance of the evidence, that the money was subject to seizure; this evidence included a recording between Espinoza and Priscilla Hernandez discussing the hidden money and hoping the search would not uncover it. What’s your basis for offering this example?
Fair enough. Although “not at all,” is equally inapposite. In at least some cases, concerns about the Fourth Amendment undoubtedly deter a search that would otherwise ensue.
But your point is valid: The Fourth Amendment and the exclusionary rule arising therefrom act to deter unreasonable searches by making the fruits of those searches inadmissible.
Some of them are impossible to verify. #8: “An African-American man,” unnamed, “never got his money back.” I have no way to comment on what the evidence was, or why the forfeiture hearing went as it did.
#7: “However, as is true of all forfeiture cases, the onus was on Caswell to prove his innocence rather than on the government to prove his guilt.” Factually untrue,
How about you pick a case and I’ll take on the task of reconciling the reporting with the facts as presented in court? From a brief read, the article’s author is unfettered by concerns for factual accuracy.
So justify why this money should have been seized under civil forfeiture.
And given the legal theft of CF, if I were carrying any cash I would hope the cops wouldn’t find it no matter how clean it was. To answer your specifics
I will also add that my experience (a traffic ticket) the judge found my guilty by a proponderance of the evidence because “He wouldn’t have issued the ticket if you weren’t guilty.” In this case there was no physical evidence just that he was carrying cash so he must be involved in some sort of drug crime.
My state of Colorado recently reformed the Civil Forfeiture law, a reform that the law enforcement community vigorously objected to. Want to know what the changes were?
Notice the complete lack of protection from police actually seizing your property?
The trial court heard the tapes, and the testimony. The trial court observed the demeanor of the witnesses. Why do you believe your recitation of the evidence should be weighed differently? You say, for example, that there’s another way to interpret the concern over the money being found. And that’s true. If this were a criminal conviction, I’d agree, because the evidence in a criminal case must exclude every reasonable hypothesis other than guilt.
So in a criminal case, when you show me another reasonable way to view the evidence, you’re talking about reasonable doubt.
Here, though, the trial court merely has to find that when the evidence for and against is balanced against each other, there is a sliver more one way. Fifty-one percent, so to speak, is enough for preponderance of the evidence.
If I may be so bold as to suggest what’s causing your reaction, it’s that the idea that the government can take so much money away on such a narrow showing as preponderance. It feels, at a gut level, wrong, because when he are punished by the government for criminal activity we are used to much more protective standards.
And in my opinion, it is wrong.
But that doesn’t dissolve the obligation to correctly describe it.
In your traffic ticket case, I can certainly say that the judge’s statement is not a correct application of the law.
So what?
In this case, there was other evidence - the discussion between the passengers showed that they both knew the money was there (when they didn’t know they were being recorded) and then the female passenger feigned ignorance of the money in front of the officer, saying, “You didn’t tell me you had that money. You just told me we were coming to buy a truck.”
I know it’s easier to make sweeping statements like “no evidence,” and “forced to prove your innocence,” instead of the more accurate “forfeiture should be based on more than the razor-thin ‘preponderance’ standard.”