Bricker, I think nine-tenths of the law disagrees with you.
Would you care to quote the line in the article that disagrees with anything I have said?
In re-reading, I think I conflated two sentiments.
Sorry.
Not confusing, just a poor analogy. Arson refers to burning down buildings and such, and so using it instead of “theft” would indicate that the speaker did not know what arson is at all. The difference between theft and arson is considerable and distinct, in that one is taking things, and the other is burning things. There is no difference between theft and civil forfeiture, other than the legalese behind it.There is no difference between arson and a controlled burn, other than the legal standard.
If you wanted to use “arson” as an analogy, then you should be using Orwell’s 1984 as your reference.
Your neighbor comes over, after the firemen have been there, and complains that the firemen committed arson on his house, burning it down with all his possessions (and seditious books). You explain that, no, it wasn’t arson, because arson is illegal, and what they did was legal.
If someone takes your stuff without your permission, that is theft. If it is done with the sanction of the state, it is state sanctioned, or “legal” theft.
If you are required to go through bureaucratic hoops to get your money back, then that is putting the onus on you to prove that the money is legitimate, preponderance or no, you have to provide evidence that the money is legitimate. How is that not putting the burden of proof to prove your money’s innocence not on you?
The practical realities of how it plays out is more important, to the layman, than the precise legal methods they employed to take your stuff without your permission.
I asked earlier, and maybe you missed it, but what would your advice be to someone who comes into your law offices complaining of a $400 civil forfeiture? For this hypothetical, we’ll go easy, you have documentation of your sales, and therefore proof of the providence of money, no criminal history, and in the same state. If your advice in any way is that it isn’t worth pursuing, then the police got away with taking things without your permission. If you are in any way hesitant about taking this case, think about compounding factors, like I mentioned earlier, past drug charges, the presence of personal use quantities of illicit substance, or having the forfeiture happen in another state.
Stupid hypothetical, let’s say they passed a law that says that k9bfriender may take Bricker’s stuff. So, I come over and take your stuff. Would you defend my actions, because they are legal, or would you say, “Hey, that law is not a fair law, it legalizes the theft of my property?”
Because “bureaucratic hoops,” are not fairly described as you bearing the evidentiary burden, any more than theft is described as arson.
I can describe dozens of examples of bureaucratic hoops that happen, and none of them mean that you have a new requirement to prove something. They mean you have to do things. If you get arrested for DUI, it’s the state that has to prove you were impaired, and all you need to do is sit quietly. That’s what the burden of proof is. But you have to show up for trial. That’s a bureaucratic hoop. You have to be present in court while the state attempts to prove your guilt. If the state fails to provide sufficient evidence, you’re acquitted. But you still need to take time from work to address the proceeding. It sounds like you’re considering every single burden that arises from a case as part of the “proof” you need to provide.
Well, remembering I no longer practice law, and never practiced civil law, but to not fight the hypothetical, but my questions to the prospective client would seek to understand what evidence the seizing authority could adduce. If they had none, as you have suggested earlier in the thread, it might be that I’d advise the client that based on the potential exposure, he could simply act on his own.
The crux of the problem is your failure to recognize that the two options are not mutually exclusive. I’d certainly EXPLAIN that your actions are legal by this new law, but not DEFEND the law. I’d undoubtedly further argue that the law is unconstitutional for various reasons.
In no event would I deny that the law says what it plainly says.
Your issue seems to be that the mere effort to correctly convey what the law says is somehow “defense” of the law.
In Detroit they will steal your car and hold it for a $1000 ransom if you even look at a hooker while driving.
That seems like hyperbole to me.
A lot of us do see these semantic arguments as an attempt to change the topic. We’re trying to have a discussion about police brutality and whether or not the police are too violent. Changing the subject into a discussion of what the proper name of the crime is diverts the discussion away from that original topic. Some people feel you do things like this deliberately in order to undermine discussions of subjects you don’t want discussed. So, in effect, you are defending police brutality by stopping a discussion of the subject - you’re not directly defending police brutality but you are stopping other people from attacking police brutality.
It actually isn’t. A bankrupt city needs ways to make money.
I get all that. And I do not say that you are defending the law, but that you are distracting from the conversation about what to do about it. (Not that it really matters, in that no one here really has any power.)
In my 1984 example, when someone complains about the firemen burning down their house, and calling it arson, when you interject and explain that it wasn’t arson, because it was legal, it does come across as though you are more highly offended by some layman getting the terminology wrong than by the actual actions that they are complaining about. Same with forfeiture and theft. Bringing it up as an aside, pointing out that the terminology used is incorrect is useful knowledge, especially when it comes time to actually daft up replacement legislation. As the sole substance of your argument, it is a best derailing from the actual concern, and really does come across as a defense of the practice.
The question in the Op was, “how is civil forfeiture a thing?” and the basis of that question is how does society tolerate the actions that are taken by the police that, on the face of it, seem to be rather illegal if anyone else were to do such a thing.
The legal history of how it came about, and the legal machinations that are used to justify it are useful knowledge, but are a side track to the basic question of, “Should we allow this practice to continue?” Calling it “theft” may be hyperbole, but it is not nearly as innaccurate as calling it “arson”. The only legally accurate thing to call it is civil asset forfeiture, and that’s not just a mouthful, it is also rather impersonal.
As far as the state accusing me of a DUI or some such, they still have to have evidence of that. They need a breathalyzer or a field sobriety test to show that I was in the wrong, if all they have is the testimony of a cop saying I was acting suspiciously and say, the presence of closed alcoholic containers, then I don’t need to bring any sort of proof that I wasn’t drunk at the time. The onus is upon the state to prove I was drunk, and to provide objective evidence to that fact. In the case of the money, the money itself is evidence against it. The fact that the money exists is evidence to the state that it was from a crime, which you need to fight by showing the providence of the money, or that it will be used for a crime, which I cannot think of any way to prove a negative against.
I actually did not know that you had stopped practicing, and I never really knew what you practiced (you may have mentioned at some point, but I 'm not great with detail), but, keeping to the hypothetical, the point is that the presence of the money and the testimony of the officer saying that I was acting suspicious is enough for me to have a very high bar to clear. In the case of the linked people who had their money taken, even though he could show where he got it, and tried to show what he was going to do with it, the evidence against them was the fact that they didn’t want their money to be taken, and that was enough to overcome any levels of evidence that they could possibly provide that the money was not linked to any past or future crime.
I could not, for instance, show up at the hearing, and simply say that the money was legitimate, and they say “Great, here you go.” I am going to need to provide some level of documentation, of proof, of where I got the money to overcome the preponderance of the evidence already against me, that of the presence of the money and the testimony of a cop who says I was acting suspiciously by not wanting him to take my money.
That seems like an odd point of view for “a lot of you” to take on a website devoted to fighting ignorance.
It also seems like a singularly ineffective tactic. If I were hell-bent on discussing police violence, and was confused about the name of the crime, I would say:
Got it – thanks for the clarification. It’s not arson I’m against after all. It’s police brutality. My mistake. Now, what’s to be done about the terrible violence the police are using? This police brutality is horrid.
It seems a simple enough counter to the fiendish tactic “a lot of you” feel I’m employing, eh?
Sure, but since merely looking at a hooker wouldn’t give rise to the level of evidence necessary to civilly forfeit a car, I’m very certain that Detroit was able to adduce more that simply, “The driver looked at a hooker.”
Believe what you need to believe. Apparently, others are having issues with your approach on this thread.
Whenever there’s a law on the books that seems draconian, unjust, and prime for being abused, look to the moral panic of the era that it was passed in. In the case of civil forfeiture it was the drug wars of the 1980s. Drug cartels were plowing the profits of the drug trade into mansions, yachts, fast cars and boats, etc. The moral panic was that the cartels were continuing as corporate entities irrespective of the arrest and conviction of individual traffickers. So the argument went, criminal penalties weren’t enough- it was necessary to remove the profit motive by seizing the ill-gotten gains of the drug trade. In some cases the government actually attempted to claw back defense lawyers’ fees, claiming that they were just a disguised way of holding cash for the mob business.
One of us is distracting the issue, perhaps. But is it me, offering a correction to a factual assertion? Or you, who argues that the inaccuracy is more useful in discussions?
I say that if your reaction was simply, “Yes, fine, ‘preponderance of the evidence,’ is the standard, but that’s a crappy standard to use in these cases because it lets the state win with only a sliver of evidence outweighing yours,” then you’d be past my supposed distraction in nothing flat.
Because it’s important to know how I personally feel about the practice in order to judge the accuracy of the statements I offer?
This is what creates an echo chamber. “Better be sure of the ideological purity of those with whom we converse!” No! How I feel is irrelevant. What’s relevant, on a board interested in fighting ignorance, is the accuracy of my information.
Yes. And if they could convict you on preponderance of the evidence, that cop’s testimony would likely be sufficient.
Yes. But that’s not you having to prove; that’s the government having to prove, which they did, by pointing out the suspicious circumstances surrounding the money. And if the only thing the officer can say is that you didn’t want him to take the money, then the record is not sufficient for even preponderance of the evidence.
And note that this is not my approval. If I were in charge, forfeitures could only proceed following a criminal conviction. I THINK this practice is horrid.
But that changes nothing about how the practice is described.
Look, this is a factual claim. You cannot seriously expect anyone to literally believe that Detroit has ever successfully and with finality seized a car from anyone based solely on the following evidence: “He looked at a hooker.”
i say it never happened. I say you cannot cite a single case where it has.
“Believe what you want,” is not fighting ignorance. It’s perpetuating it.
:rolleyes:
I get the legal terminology. And I am not fighting the legal terminology. I am pointing out that “preponderance of the evidence” in this case is the same thing to a layman as needing to prove your innocence. The fact that you need to affirmatively provide evidence of your innocence to beat the evidence of their simple say so means that the civilian has an uphill battle. I cannot see any light between the two statements. They say “We suspect that you were going to use the money to buy drugs, and our evidence is that you had $400 in cash, you were heading in the direction of a known drug dealer ('cuase if you are on the interstate, or really just about any road, you are pretty much always heading in the direction of a drug dealer), and you acted suspicious about the money that was seized.” I cannot just reply, “No I wasn’t.” I have to provide evidence that overcomes their suspicions. This puts the burden of proving innocence upon me, rather than the burden of proving guilt upon them.
Accuracy, no. Intent, yes. And where intent matters, so does implication. Two statements can both be completely accurate, and yet have completely different implied meanings, depending on the intent of the speaker.
I don’t know that people using shorthand for legalese, or using the practical realities of how things play out, rather than the theoretical ideal of how it should work, is creating an echo chamber. Any more than not having a group of grammar police running around correcting poor grammar and speling creates an echo chamber.
That’s great in theory, but in most of the cases, you do know that there is not an impartial judge or jury, but instead someone designated by the chief of police to make that call. You have to overcome preponderance of the evidence to his standards.
I have described it mostly as “They took my shit.” Show me any innaccuracy in that statement.
Then all the more reason for me to offer this illustration of what the phrase actually means: in a civil case, if you have no evidence and the other side has enough evidence to show the fact-finder their claims are true, they win. That’s preponderance of the evidence: the scales only have to tip a tiny bot towards the state. In a tie the state loses, but even a slight edge is enough.
Now everyone can discuss the issue using the correct terminology. Because words should mean the same thing to people when discussing stuff:
HUMPTY-DUMPTY: When I use a word, it means just what I choose it to mean, neither more nor less.
ALICE: I wonder what all those words you just said meant. Maybe you’re telling me I can have all your stuff!
HUMPTY: What?! No!
ALICE: Your car, too? Gosh, thanks!
I don’t know anywhere that does not allow a person to request a court, with a judge, decide he issue, and not a police chief’s designee.
I don’t take issue with that phrase.
Hey, I know Bricker’s insistence on textual legalistic rigor can be annoying, but in fairness, if we are going to battle various and sundry injustices perpetrated in the name of The Law, it helps to speak the language of The Law. Because when we go try to seek justice, we risk that the Court will say to us, “Son, that which you are claiming to have been done upon you is **not **what The Law calls this. Mind to try again to make the right argument the right way?”
Still, and being confident that it is not a term of art defined in the statutes, outside of a court I feel I can call the whole CAF concept as practiced a bloody ripoff.
Spot on. Passage supported through a generous helping of the “why would a ‘normal person’ be carrying around thousands in cash and valuable goods?” message.
It also creates an incentive for legit businesses to be obligated to accept credit/debit transactions (by making the transport of large amounts of cash a hassle) and to use commercial shipping (by making the personal transport of valuable things a hassle), so you get some backing from those business sectors as well as from the tax department in the quest to make every transaction trackable.