It certainly happens that cops can be corrupt, and lie under oath, or plant evidence.
But that’s not a hazard limited to civil forfeiture. That’s a hazard that arises any time humans are put in charge of doing stuff.
I’m talking about the need to accurately describe the system as it is. To my (perhaps naive) way of thinking, more headway is made by a commentator who says,“The idea that mere preponderance of the evidence is enough to seize property is dangerous!” gets far more persuasive traction than “They’re taking our property with literally zero evidence at all!!!”
Are you thinking of the case where Colorado refused to refund a fine after the conviction was overturned?
Of course you’re right, but this is IMHO not GQ. And in MY humble opinion, they are sometimes taking property with literally zero evidence. In IL all that is needed is the say so of the officer involved for the assets to be seized - NO ACTUAL EVIDENCE IS NEEDED. Only that point (after the assets are already seized) does the court get involved to make a determination if the seizure was justified under probable cause. If they decide no probable cause occurred, it’s still up to the citizen to petition the court in a timely manner for the return of their assets. If they fail to do so, THEY LOSE THEIR ASSETS. This is all perfectly legal according to the proscribed statutes, but how this can be seen as anything other than legalized theft is beyond my comprehension.
And as for the notion that the citizen doesn’t have the burden of proof on their shoulders. . .If the court decides that there was probable cause in the seizure, then the issue may proceed to trial (once again, assuming the citizen acts in a timely manner). You say the citizen has no obligation to prove anything, but the threshold of preponderance of evidence makes that not true. Preponderance means that there is more evidence for one side than for the other, so if the defendant sits quietly and offers** no **evidence, all the plaintiff needs is one piece of evidence, and in IL the ruling of probable cause is seen by the court as evidence, so the trial starts out with the preponderance of evidence against the citizen. Which is tantamount to placing the burden of proof on the defendant. And how this can be seen as anything other is beyond me.
So, IMHO the civil asset forfeiture laws allow the police, state and federal courts, to steal the assets of innocent citizens and places the burden of proof on them. This is contrary to everything the American justice system stands for and should no longer be allowed to continue.
Come on now. Similar to Detroit cops stealing cars of people that look at hookers, there is no way the State of Illinois would allow a law enforcement officer to steal things without probable cause. It just doesn’t happen that way.
For what it’s worth, your reaction is shared by Justice Thomas. In a rare comment on the denial of cert in Leonard v. Texas, a forfeiture case challenged on due process grounds, he wrote:
This is persuasive to me. And perhaps other readers here as well, if they can overcome their aversion to agreeing with Justice Thomas.
I disagree. People may argue with you over your opposing viewpoint but nobody is going to dispute you are entitled to have one. That’s not the issue here.
If all you want to do is add some legal information, people would welcome it.
POSTER 1: Police are too violent when they make arrests. This arson must stop!
BRICKER: Regardless of what your opinion is on the subject, the relevant crime is not arson. If the police are being too violent, the crime would be brutality not arson. Arson is the crime of setting property on fire and brutality is the crime of using unnecessary violence against a person.
You would have corrected the error and expanded the legal knowledge of readers. And we could all move on with the central topic.
The government must prove, by preponderance of the evidence, that the property is subject to forfeit. The property owner does not have to “prove that money wasn’t used in a crime to get it back.”
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I’ll bet you that I could take your exact words, wait six months or so, and use them in a similar thread, changing only “arson” and “brutality,” for the subjects then under discussion . . . and draw similar reactions to this thread.
Kinda. The Colorado statute involved wasn’t civil forfeiture, though. It instead involved the fines and costs that can be assessed after a criminal conviction. It did involve requiring people to prove their innocence.
Shannon Nelson was convicted by Colorado for various crimes not really relevant here. Let’s just say it was mopery and dopery. Pursuant to those convictions, she was assessed fines and court costs, which she paid. She then appealed her conviction, and the appellate court overturned her conviction, finding it was obtained in error. She was re-tried by the state and acquitted of all charges.
Nelson asked for her money back. Colorado refused, citing their “Exoneration Act,” which limits the refund of fines and fees to cases in which the accused proves their actual innocence by clear and convincing evidence. This IS an example of requiring a person to prove their own innocence – just not related to a civil forfeiture.
Anyway, the Court slapped Colorado’s scheme down, sensibly pointing out that once the conviction was erased, the money was not Colorado’s at all to withhold.
So the general thinking is good for those opposed to onerous civil forfeiture, but the facts are not directly on point.
I’d be interested in learning why freezing the assets wouldn’t accomplish the same putative goal (preventing their use in defense funding) as seizing them.
In your example, the money should be seized as evidence. If there is no conviction, it should be returned. If there is a conviction, it should be forfeited.
Same with anything else seized under civil forfeiture.
Even if opposed to something, maybe even especially when opposed to something, it is critical to understand and correctly describe the underlying fact patterns to effectively attack it. It does no good to set up an inaccurate picture of what CAF actually is.
So a police officer can come up to you and take any cash you have on you because you might be a drug dealer? I mean you specifically. That’s what you are saying, a cop can approach Clothahump, say “I think you are a drug dealer”, and then take your money. Then you have to count on the police to return your money, eventually, after you’ve had a trial or time has run out for them to bring you to trial. Is that what you are saying?
And I see what the problem is, it’s not just that we arguing about different things, it’s not just that we don’t know what we are arguing about, it’s not even a matter of hyperbole or exaggeration, it’s that you aren’t even aware of what the debate really is here.
You are talking about arson vs brutality, forfeiture vs theft, when the real issue is with the word “prove”. To you “prove” means to provide evidence beyond a shadow of a doubt, and to a layman, “prove” means “provide proof (or evidence, if you prefer) that overcomes the amount of evidence against you (to the satisfaction of a not necessarily neutral arbitrator)”
If you take drewder’s claim of “The owner must then prove that money wasn’t used in a crime to get it back.”, and substitute the lawyer to layman’s translation of the word, would you then agree with the statement?
That would have been a much more useful correction to make. “It’s not that the owner needs to prove beyond a reasonable doubt that it wasn’t used in a crime, it’s that the owner needs to provide enough proof (or evidence) that is was not the proceeds of, or to be used in future crime, to overcome the evidence of suspicion and presence of the money that the arbiter will consider in preponderance.” or something probably better worded than that, would be very useful, and people “in the know” would then use the term “provide evidence” rather than “prove”, and we could get on with our discussion as to what to do about the practice.
If we can agree that it was the word “prove” that upset the legalese, can we get past it?
