Civil forfeiture, without a conviction of the person or persons involved, should be illegal. It surprises me that it’s even considered constitutional, but SCOTUS has ruled that it is.
Plus even then, the part about incentivizing the report with a share of the takings sounds extremely distasteful. An agent of the state IMO should not personally profit from actions outside their official duty performed under color of such duty.
It has long been illegal to take more than $10,000 cash out of the country if you don’t declare it; such cash could be confiscated.
BUT, in this new program, a smaller sum, say $4000, could be confiscated even on a domestic flight by saying “Drug dealers like cash, so you might be a dealer. Confiscate!” Is this correct?
It seems the Patriot Act has opened a few doors.
Not really, no.
That is, if what you describe happens, it would be in violation of the civil forfeiture guidelines.
The problem has been that some enthusiastic agents have done just that: disregarded the guidelines and seized where they were not entitled to do so. When this happens, the aggrieved traveler must challenge the seizure of his property. The article hedges this point by suggesting that somehow this becomes a case of the burden of proof resting on the traveler. That does not happen – the government is required to show, by preponderance of the evidence, that the seized property is subject to forfeiture.
The injustice here arises from the following: let’s say I have saved $30,000 to buy a restored Harley. The owner will accept only cash. I travel to purchase the bike, and I am accosted and my money seized.
I must now pony up another couple thousand to pay a lawyer to represent me. If I can’t afford that, then I risk losing my seized money because I make some basic error in procedure. Ultimately, I get my property back. But I was required to go without my money for a period of time, and the opportunity cost is not recoverable.
It irks me when stories suggest that the burden of proof is reversed. It’s not. But there remains an element of injustice to these schemes.
I don’t understand how the Patriot Act relates – can you explain?
And, one assumes, no Harley.
Patriot Act is derp for “feds being jerks.”
Empower the state but don’t be surprised when the powers are abused.
If you win the case does the government pay your legal fees? If the confiscation is only $1000 or so, does the government win by default since it’s too expensive for the citizen to fight? (Which would make the smallish confiscations most profitable for the government. :dubious: )
I’m flabbergasted by the very idea of these confiscations with no court adjudication. Does this happen in other non-banana countries? Why aren’t Americans protesting this kind of crap more vigorously?
Because, Drug Traffickers!! Or because, Terrorists!!!Or, because, what do you care if YOU have done nothing wrong? Or, because, who needs to lug around ten thou in cash??? Or, because, f*** people who can lug around ten thou in cash while we don’t even know what it looks like!! And the police say they need it as a tool!! Don’t you support the police??
It happens to all sorts of people but it does not happen to a majority of people every day so they do not see it as such a huge thing.
You’re also skipping over the fact that to convict someone of a crime and punish them with a fine or imprisonment requires convincing a jury “beyond a reasonable doubt”, while seizing their property because it may be used for criminal activities only requires a “preponderance of the evidence.”
Is it no court adjudication? Who has the onus of going to court: the government or the citizen whose money has been taken?
To answer your question about other countries, there are civil forfeiture laws in Canada, but after making a seizure, the police must file an application with the court and show cause why the property was seized. The owner does not have to start the proceedings and can participate. Onus is on the police, on a civil standard.
No, the government doesn’t pay your attorney’s fees if you win, though I believe it has to cover your other litigation costs (expert witness fees, filing fees, etc.) Don’t quote me on the latter.
Needless to say, there is no point in going to court if you are out $1000 because the attorney will charge more than that (not unreasonably; we’re talking about dozens of hours of work and hundreds if the case proceeds to trial).
The citizen. While at trial the state has the burden of proof, the government doesn’t have to prove anything before it seizes the asset(s).
Actually, my post did sort of hint at the “preponderance of evidence” civil standard.
John Oliver did a segment on Civil Forfeiture
The appalling thing, if i recall correctly, is that the government doesn’t sue people to get the asset. They sue the asset. Therefore the ‘owner’ of the asset doesn’t have standing to challenge. Or something like that.
It’s pretty terrible.
Yes. But it didn’t address why the govt. gets to mesh government/police powers such as seizing property suspected of being used in a crime with civil standards of proof to keep that property.
I’m no expert, but I don’t think this is entirely correct. I mean to say that while it’s true that there’s no judicial action required before the immediate seizure, the government typically has a limited period of time to file a civil forfeiture action. In other words, the government has the burden of going into court as the plaintiff and showing enough evidence to prove, by preponderance, that the seized property is subject to forfeiture. The owner has the opportunity to appear on behalf of his property, of course, but as I understand the process there’s no path by which the seizure becomes permanent without a judicial determination.
Or am I unaware of some especially onerous statute somewhere?
That’s not exactly how it works. The problem (sometimes) is that the owner has no proof of ownership and the assets were seized while in the possession of a third party.
Yes and no.
Yes, the case is against the asset… “United States v. $62,513.”
But the owner has standing, conferred by statute, to challenge the seizure. So it’s not true that the government can sue the money and win unopposed.