Jeff Sessions DOJ’s new civil asset forfeiture policy is a gigantic step backwards on property rights.
The original definition of terrorism is government by intimidation. A government that uses terror to control it's populace is terrorism. Civil forfeiture laws present law enforcement with significant incentives to seize property for financial gain.
"Being innocent does not mean that a state has to return your property. The Supreme Court of the United States has held that the “innocent owner” defense is not constitutionally required"
Unless the statute provides otherwise, the innocence of the owner is irrelevant—it is enough that the property was involved in a violation to which forfeiture attaches. Making matters worse, law enforcement agencies get to keep the cash and other assets that they seized giving them a direct and tangible incentive to police for profit rather than seeking justice.
In Tenaha, Texas, police pirates engaged in a systematic practice of seizing cash and property from innocent drivers with absolutely no evidence of wrongdoing. In Philadelphia, police seized the home of two sisters whose brother, who did not live there, showed up while trying to evade the cops. In Detroit, cops seized over a hundred cars owned by patrons of an art institute event—because the institute had failed to get a liquor license. You can be totally innocent and still be unable to stop the government from seizing your property.
Rhonda Cox of Arizona on her own and without a lawyer, filed the paperwork required to challenge the forfeiture as an innocent owner—paying a $304 filing fee for the privilege. But eventually she gave up. The legal process was too convoluted, and—as the prosecutor had warned her—if she lost, not only would she lose the truck, but under Arizona law she would also have to pay the government’s legal costs.
Forfeiture defense often fails at the outset when the defense attorneys fail in the task in making the courts appreciate the fact that there are (fortunately still) rules and laws which set limits to the government's greed for taking your property. The government has to provide notice of forfeiture within sixty days of the date when the property was seized. If the government fails to meet this deadline, the forfeiture attorney should file a motion for the return of property under Rule 41(g) of the Federal Rules of Criminal Procedure before the government files its complaint for forfeiture.
Apache County Attorney’s office published a Notice of Pending Forfeiture and Notice of Seizure for Forfeiture of “$8400.00 in U.S. Currency” in the local newspaper. The notice was to “all persons claiming to be an owner of or an interest holder in any of the property described simply as ‘$8400.00 in U.S. Currency.’” The notice was so generic that it did not even state the circumstances under which, or the date on which, the money was seized.
Very few states can proudly declare that they've put their citizenry first in the creation of their asset forfeiture laws. Only NM gets an' A'. In 2015, New Mexico abolished civil forfeiture. It now requires a criminal conviction with proof beyond a reasonable doubt for all forfeitures; after securing a conviction, the government must prove in the same criminal proceeding that seized property is connected to the crime by “clear and convincing evidence,” a standard lower than reasonable doubt but higher than preponderance of the evidence.
The state grades do not take into account whether law enforcement agencies bypass the state laws and use the Department of Justice's program.
Contact your state and local elected officials and demand an end to this legalized theft.
Thirty-one states and the federal government set “preponderance of the evidence” as the standard of proof - the 51% rule but in Massachusetts and North Dakota set a lower standard still, requiring only probable cause.
Has there ever been a successful return of cash to the owner?
Court Says Gov't Has To Give Back $167,000 It Seized During A String Of 4th Amendment Violations
The Ninth Circuit Court of Appeals has no good news for the lying law enforcement officers who were hoping to walk off with $167,000 of someone else's money. After stopping Gorman for a non-violation (driving too slow in the left lane), State Trooper Greg Monroe spent roughly a half-hour trying to obtain consent to search Gorman's RV. All Monroe knew when he finally let Gorman go is Gorman had at least $2,000 on him. Monroe wasn't going to let this money get away, so he called up another officer from another agency and "relayed his suspicions."
The other officer Deputy Doug Fisher wasn't assigned to patrol the highway Gorman was traveling on, but pulled over Gorman after his tire touched the fog line a couple of times. The drug dog supposedly alerted near a right-rear compartment of the RV. Gorman gave the deputy permission to search that area, but that wasn't good enough for Fisher. Fisher said the alert gave him permission to search the entire RV. This resulted in the discovery of $167,000 in cash, which Fisher took. Gorman was (again) free to go. Gorman was never charged with any criminal act, much less given a citation for the supposed moving violations that predicated the two stops.
The only reason why Gorman got his money back was because the coordinated traffic stops violated the Constitution, otherwise Gorman would've been SOL.
http://www.heritage.org/research/report … hould-know
http://www.assetforfeituredefender.com/ … nse-lawyer
http://www.dallasdrugcrimesattorney.com … -defe.aspx
http://www.heritage.org/research/report … hould-know
http://reason.com/blog/2015/06/09/this- … -forfeitur
http://ij.org/report/policing-for-profi … ture-laws/
http://ij.org/report/policing-for-profi … iture-laws
https://www.aclu.org/legal-document/cox … complaint.
If it’s not about the money, what reasonable reason for seizing the property of law-abiding people could there be?
Despite President Trump’s Support for Legalized Theft, Congress Presses on With Civil Asset Forfeiture Reform https://www.aclu.org/blog/washington-markup/despite-president-trumps-support-legalized-theft-congress-presses-civil-asset
U.S. House Judiciary Committee introduced the DUE PROCESS Act. “Deterring Undue Enforcement by Protecting Rights of Citizens from Excessive Searches and Seizures Act.” Trump's comment about destroying someone’s career over forfeiture reform is just another example of his disconnect with the American people.
http://www.pinalcentral.com/lawmakers-s … 3baef.html
Scrap the current standard that requires prosecutors to prove only by a “preponderance of the evidence” that the property is linked to a crime. That essentially means it is more likely than not, akin to a 51-49 percent balance.
Instead, prosecutors would have to provide “clear and convincing evidence” to a judge of the connection between the house, vehicle, cash, computer or other item that they want to seize and convert for their own use.
That’s not quite the same as “beyond a reasonable doubt” required for a criminal conviction. Also would repeal existing laws that actually can force someone who sues to get property back but loses in court to pay the legal bills of the government agency.
“Running the risk of paying thousands if not hundreds of thousands of dollars if they did not prevail in court really was such a huge chilling effect on even being able to litigate and fight for their property,” said Kalman with Arizona Attorneys for Criminal Justice, a group made up largely of defense lawyers.
Will Gaona with the American Civil Liberties Union said, “The government shouldn’t be able to threaten people with attorney’s fees to keep people out of court,”
http://www.phoenixnewtimes.com/news/ari … it-7505975
The ACLU say these laws “have created a lucrative system in which police and prosecutors are heavily incentivized to seize and forfeit property.” In essence, the group argues, these rules allow “law enforcement [agencies to] supplement their budgets without any legislative oversight.”
The ACLU case is that these laws “twice place an unconstitutional burden on Rhonda’s rights under the First Amendment to ‘petition the government for redress of grievances…Through these and other unconstitutional means, the forfeiture laws have created a system in which few people like Rhonda can afford to take the risk of defending their property.
“For most of American history, the proceeds from forfeitures went not to the law enforcement agencies responsible for the seizures but to the government’s general fund. However, in 1984, Congress amended portions of the Comprehensive Drug Abuse and Prevention Act of 1970 to create the Assets Forfeiture Fund, into which the Attorney General was to deposit all net forfeiture proceeds for use by the Department of Justice and other federal law enforcement agencies.
"....file a lien that encumbers the official's personal property and credit rating like a ton of bricks until he voluntarily satisfies our demand to perform his lawful duty, and we, in turn, voluntarily agree to excise the lien."
When an asset is seized, records are made for the identity of the property owner, an estimated value and a description of the asset. Moreover, any liens are also recorded.
In sum, the mere fact that property has been seized by law enforcement does not mean that it was a lawful taking.
http://www.kessleronforfeiture.com/tag/ … r-defense/
While the Reform Act makes it easier for a claimant to have his day in court, 2(h) establishes a civil fine of up to $5,000 that may be imposed in a civil forfeiture proceeding when the court finds the claimant’s assertion of an interest in the property to be frivolous.
If the owner has given nothing of value in exchange for the property, then his status as “innocent” becomes irrelevant.
" ... allowing the claimant in the civil forfeiture proceeding to show, as an affirmative defense, by a preponderance of the evidence, that the forfeiture is grossly disproportional to the offense. If the court agrees with the claimant, it will either reduce or eliminate the forfeiture as necessary to avoid a violation of the Excessive Fines Clause of the Eighth Amendment. 18 USC 981(g). The burden of proof, as with any affirmative defense, is on the claimant."
[b]18 U.S. Code § 983 - General rules for civil forfeiture proceedings]/b]
For Arizona - Pursuant to A.R.S. §13-4304 entitled “Property Subject to Forfeiture; Exemptions, several defenses apply. For example, no “common carrier” vehicle can be forfeited unless the owner’s had knowledge of its use in a criminal enterprise. This prevents UPS or Fed Ex trucks from being confiscated.
Illegal Search (but not in TEXAS)
Texas Supreme Court rules unlawful stop/search/seizure irrelevant in forfeiture cases. Police departments DO depend upon forfeiture property
I think the starting point for a Civil Forfeiture discussion would be that as the law is now, the police have a financial interest in the gains of forfeiture, and, they don't even have to charge someone with a crime to justify the forfeiture.
That is outrageous by any standard. All those other "facts" you posted are just supporting evidence for those two idiocies.
A third idiocy would be that the authorities can get around their state's civil forfeiture protection laws intended to protect innocent citizens - just by passing the forfeitures to the Feds - which reward their generosity by passing some of it back to them.
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