So far, a lot of the back-and-forth has been about what the law says v. how it’s actually implemented. Is it being abused, how easy or not is it for someone to recover their assets that were seized, that sort of thing. I have a different question.
What is the legal theory behind the government seizing assets in this manner? Has this theory been around for a long time? How did it develop and how truly useful is it? Is it one of those things that was designed/developed to solve one problem (and maybe did it well?) but then expanded beyond its original scope and is being mis-applied?
It feels like an inherently unfair action to me, but I would honestly like to know how we got here so I can start thinking about where we go.
I believe these laws derive from the same legal principles that give us condemnation proceedings against seized materials, ie State of Texas v 18 dildos, or Massachusetts v Fanny Hill.
Personally, I think that the way to immediately reform all the seizure laws is to make absolutely sure that the seizing agency in no way, shape or form benefits from the seizure, and that the seized property must be held in escrow for 20 years or so.
In this case, Bricker, I think the layman’s understanding of the matter is superior to the lawyer’s. Not saying that the precise legal aspect do not need to be considered, especially in regards to reforming the laws to be less oppressive, but in the case of how it actually works, the layman’s standard of “They stole my shit!” is superior to the legal standard of “achieving preponderance.”
You were correct in the your assumption of the “gut level reaction”, but honestly, that’s what is important here. The fact that the police have unfairly taken from you, not the intricacies of the laws that allowed them to unfairly take from you. If this happens to you, then you think “here are the steps I need to get my money back.” and even if you feel the need to have another lawyer present for the hearing, you probably know some people, and they probably would give you a discount for being a colleague and the fact that you would be doing most of the legwork. If this happens to me, I go “Shit, I need to get a lawyer.”
Here’s a hypothetical example: About once a week, I take 3-5 hundred dollars in cash to the bank. Lets say I get pulled over during that run, and in the course of the stop, the cop seizes about $400 in cash. I come into your law office to try to get my money back. What is your advice? What will you charge me for this? Is this going to be be worth my time? I would think that your advice to me would be that you would end up charging me more than it was worth. I do have resources, and I may be willing to invest up to a grand or so on the principle of the thing, but that is still the police “costing me my money” even if you are getting it rather than them. This is me as a middle aged white guy with no criminal history whatsoever. I would also be curious as to how you would consider other instances, say a 20 year old black man with a past drug possession charge, or even a person who, in addition to the money, the police found small quantities of drugs, like a joint.
The fact that I have to get a lawyer, then get paperwork documenting the providence of the funds, to go against the govt’s simple say so that they suspect that the funds were being used for illicit purposes is, to all intents and purposes to any layman, requiring me to prove my innocence. I’ll agree that that is not precisely what the law says I have to do, but the reality is, is that is exactly what I have to do.
Bricker, normally I agree with you 100% but in this case you are simply wrong.
You are justifying seizing people’s property when no crime is being committed. Take the case we are discussing. Besides the money itself, what evidence was there of any drug crimes. You are supporting a position where a large sum of cash by itself and being nervous about police searching your car is enough evidence to seize the cash.
Don’t you have a problem with a system where the police don’t have to show any evidence of the crime they’re basing the seizure on? Here is how it works:
<Cop> He had a lot of money so he MUST have been doing drug things.
<Judge> Sounds good to me. Forfeiture allowed.
Actually, if the government takes money through fines, taxes or other monetary penalties, that is understandable. It may or not be right in it’s assessment, but it has that moral right. If it just confiscates a random sum you have ( or equivalent to money in other forms ) the procedure seems remarkably banditlike.
And again, that’s just stage one. The assets are often taken and then there is no conviction only because there is no trial. So the person considered innocent under the law tries to get his money back and the prosecutor tells the judge we can still charge him with the crime that the assets were the proceeds of. And the judge says ok because that preponderance of evidence which is just the police saying we think those assets are the product of criminal activity still exists.
And from the git-go the standard of preponderance of evidence is abused as you say, the mere claim by the state that someone is alleged to have committed a crime then is considered the evidence that the assets were the product of that crime while he is put in the impossible position of proving he committed no crime, or even if he has that the only way he has any assets of value are because of that crime that he is still innocent of under the law.
Let’s look at this relative to a normal civil procedure. How often would a judge allow evidence of an alleged crime for which there had been no trial, possibly no charges file, to be used as evidence in a tort case? IANAL, I don’t even play one on TV, but it turns the concept of innocent until proven guilty on it’s head.
See Der Trihs post no. 21 and the two Wikipedia links in my post no.41.
Basically it was a sea-faring thing, since there’s not a lot of impounding points ( not safe ones anyway ) on the High Seas — when the Preventative Squadron caught a slaver the captain had to decide whether the flag had a co-operating treaty with the British to stop slave-trading, determine whether it was a legitimate flag, and if so to take the ship into custody under a prize-crew to sail maybe 1000s of miles to the corrupt mixed commissions of British plus that Country Concerned to judge whether it was rightly taken or should be returned to the slavers: if he got it wrong the slavers could sue that captain of all his wealth; now in the case of straight-up pirates, either you took their illicit ships or let them alone — then the principle was laid away until revived in the late 20th century to tackle criminals.
There were organized crime figures, like mafia leaders and druglords, who were hiring extensive legal teams to defend them in court. People were annoyed to see these people using the money they made from crime to prevent them from being found guilty of those crimes. So the argument was “We’ll just seize all their criminal profits during the trial so they have to defend themselves on a level playing field with non-criminals. And then, if they’re convicted, we’ll keep those criminal profits as part of their punishment and use them for the public good to make up for some of the harm their crimes caused.”
I could get behind that. If they have reason to suspect you of being a drug dealer, I don’t have a problem with them holding your assets as evidence, to be forfeited upon conviction.
But if you are found innocent, or if no charges are even brought, then you should automatically get your assets back in a timely fashion.
Bricker in the Espinoza case youre arguing that the letter of the law was followed and everyone else, including the appellate judge*, is saying "so what? "
[QUOTE=Judge Waymond Brown]
I cannot see why the trial judge would decide to follow through with the forfeiture of Mr. Espinoza’s $19,894, when the charging agency moved to dismiss without prejudice believing it lacked the evidence to confiscate the money. Unsubstantiated suspicions are not just cause for circumventing established judicial practices.
[/QUOTE]
Espinoza lost out on his assets because the court didnt need to “prove” they were from criminal proceedings, just that they might be. And because he (Espinoza) failed to file his appeal in a timely manner the appellate judge’s hands were tied. Everyone can see this is a fucked up situation, and by arguing otherwise you are making yourself look bad. Give it up.
There is no justification for the way CAF is pursued in many jurisdictions - regardless of the good intentions of the original law. 12 states currently have legislation pending to reform the statutes. There is bipartisan support at the federal level in both houses, that the federal statutes regarding equitable sharing “encourage” abuses and need changing. Even you have said the laws are unfair, and yet you quibble over verbiage. Is this really the best use of your knowledge?
You know, I keep thinking about how CAF is based on proponderance of the evidence. Cops get to use evidence like the money itself and my behavior. Pretty weak evidence right? But then again, how can I have any evidence that I didn’t get the money from drugs? By difinition I have no evidence to prove a negative so by law the deck is stacked against the citizen.
And even if you can somehow prove that you did earn the money through legitimate means, how do you prove that you weren’t going to use the money to buy drugs?
OK, moving this thread in a different direction since this is IMHO.
Any advise or opinion on what one can do, to avoid this problem, if one is traveling with a few thousand in cash and other valuables.
Twice every year I travel from Florida to Maine by auto for the season. I usually carry about 3k in cash, am wearing a high value watch with another in my luggage and some other jewelry. Then there is the camera bag with a couple of Leica’s and accessories. Finally we get to the guns, all in locked hard cases, two shotguns, two handguns, and one really dressed up AR style rifle.
I have copies of the paperwork for each gun in their respective cases but nothing on the other valuables or cash.
Should I have copies of receipts for all my other items of value and a withdrawal slip from my bank where I withdrew the cash?
Would this be enough to stop a seizure at the roadside or even at the local police station?
Or would some pot bellied local sheriff decide that christmas has come early for him, while I had to go through the entire process as detailed in earlier posts.
Oh, and don’t try to hide all that valuable stuff somewhere in your car so nobody will find it. Merely having a place in your vehicle to hide something is itself illegal in some states, with more states jumping on board.
This Massachusetts Lawmaker Wants to Throw Folks in Prison for Having Secret Car Compartmentsand seize the vehicle too. Proposed law supposedly puts burden of proof on the state, BUT explicitly defines the mere existence of a hidden compartment as prima facie evidence that owner intended to use said compartment to transport contraband. Note, this is current news, not some article I just dug up from years ago.
Article cites similar existing legislation in Ohio, perhaps other states too.
ISTM I’ve seen news articles of this kind of stuff going down in California too, although I’m not specifically aware of any such laws here. Hey, we don’t need no steenkin laws to do this shit!
POSTER 1: Police are too violent when they make arrests. This arson must stop!
BRICKER: Actually, “arson,” refers to burning property illegally. I’m pretty sure you’re not talking about police burning people.
POSTER 2: So you favor the police tactics?
BRICKER: Didn’t say that, just pointing out that . . .
POSTER 3: Why are you justifying the police violence here?
BRICKER: All I’m saying is . . .
POSTER 4: Bricker, usually I agree with you but here you’re advocating for police violence in response to no threat at all. Doesn’t that strike you as very wrong?
BRICKER: It’s just not correct to call it ‘arson,’ because that’s the wrong term to apply.
POSTER 5: Bricker, I’ve lost all respect for you. Even if “technically” the wrong legal term is used, the important thing here is that people are being beaten, hurt, by police. Why do you defend this?
In both cases, though, there is additional evidence adduced in front of the fact-finder. It’s never just “You’re a cop so that’s good enough for me.”
The problem is that you believe that additional evidence is not strong enough.
Right? So to tell that story, you don’t say, “There’s other evidence, but it’s weak.” Instead, you short-cut the story and imply that there’s no other evidence.
Your objection is that preponderance of the evidence should not be the standard. You think that a stronger stander, like “clear and convincing” or even “beyond a reasonable doubt” should apply.