The problem is a good deal worse than that. The problem is that the state can seize assets because they said so, and the burden is on the person who has been deprived of property to go through legal channels and WIN to get their property back. Oh and if the government seized all your cash and you can’t afford a lawyer to engage in that process then that’s just too bad, guess you shouldn’t have been a minority. Did I say minority? I’m sure I meant “criminal engaging in illegal activity even though you haven’t been convicted” because the government wouldn’t do that to anyone else right?
magnet
3363
The burden of proof is on the state, like any plaintiff. If the state shows up to court with no evidence, then the defendant wins.
True, the defendant needs to go to court to defend themselves against the civil complaint. But that’s true whenever someone is sued. If you ignore the complaint, you will very likely lose.
It’s problematic that the state begins seizure before the case is decided, like I said. This is not totally bizarre, it’s analogous to a preliminary injunction. But even if it’s overused by the state, that doesn’t mean there is no due process.
Um, no. In most states the burden of proof is on the people to prove that the state acted unjustly. The state shows up and a cop witness says “I’m a cop and I’m very experienced in spotting shady characters and this is a shady character and thus we seized the assets” and that’s all the state needs to do to win the majority of these.
CraigM
3365
Exactly. Theres a reason they are charging the assets, not the people. Because a person has the presumption of innocence, and the state needs to provide evidence. With assets this is inverted and the burden of proof is on the individual to prove the assets were not used in a crime.
ShivaX
3366
That isn’t at all what happens.
A person traveling in rental car with a large amount of money who seems nervous and isn’t telling a straight story is viewed by police as meeting the preponderance of the evidence standard, even though there isn’t enough evidence to file a criminal charge, much less obtain a conviction.
An individual targeted by civil asset forfeiture need not be arraigned in court, nor do they need to be convicted of a crime. Sufficient probable cause to seize property, as the FBI explains, is defined as “reasonable ground for belief of guilt.”
This low legal threshold has ensnared individuals who have not been charged or convicted of a crime.
Not a totally relevant story, but reading your comment reminded me of 2013/2014.
I’m not a drug trafficker, but the Spanish government unilaterally froze bank accounts belonging to foreigners (domiciled or not) a few years ago, mine included, supposedly to combat drug trafficking (there’s an obvious hole in the logic here that professional drug traffickers would simply shift to local accounts…)
To unfreeze it, I had to present myself to the bank along with proof of who I was that was approved off by the local government.
Very much a case of guilty until proven innocent.
And I was very pissed off about it for the following specific (I’m agreeing with you broadly that it is blatantly wrong btw) reasons:
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I was in Afghanistan at the time, so couldn’t fix this for the best part of a year
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The bank knew exactly who I was, had known me most of my entire life, and the managers at the bank had dealt with my father beforehand, a relationship going back to the eighties. And they could account for every single cent and peseta that had gone into and out of that account.
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The government did NOT put a freeze on monies coming out, just a freeze on accessing funds and being able to put in new funds. This meant, for a year, they happily collected their taxes, and the electricity and water companies plundered my account, but I wasn’t allowed to put in a single cent. Thankfully there were savings sufficient to cover this, and income coming in during the period was held in place by the people paying me in, so at the end of it I got a year’s income in a week.
magnet
3369
I think civil asset forfeiture is frequently used in unfair ways. But unfair does not mean unconstitutional.
In most states, the standard of proof for the state to keep seized assets is “preponderance of evidence” that the property was used in a crime. “Preponderance of evidence” is the same standard that was used when OJ Simpson was ordered to pay $33.5 million to the families of Ron Goldman and Nicole Simpson. Which clearly did not violate due process.
In Arizona (cited above) the state must actually meet a higher standard than preponderance of evidence, though still less than required for conviction. So if OJ were arrested in Arizona, the state would have a harder time taking his assets than did the Goldman and Simpson families.
If the families of Ron Goldman and Nicole Simpson showed up to court, simply said “OJ Simpson is a shady guy who killed people”, and OJ Simpson refused to defend himself, then OJ would have lost. That’s how all civil suits work. Bad evidence weighs more than zero evidence. If you don’t show up to defend yourself, then the plaintiff merely has to show up in order to win.
Now, I think it’s unfair that courts are more likely to believe cop witnesses than defense witnesses. But that has nothing to do with lack of due process, it’s a more general problem with bias in our judicial system.
Do you think it’s unconstitutional that Simpson was ordered to pay $33.5 million even though he was not convicted?
“No criminal charges” does not mean “not responsible”. People get sued all the time and lose, even though they have not been convicted of any crimes.
Suppose your car got sideswiped on the freeway. The cops decide not write any tickets. You sue the other driver for damage to your car. He shows up to court and it’s unconstitutional to take his money because he wasn’t charged with any moving violations. Does that seem reasonable?
Menzo
3370
You’re not reading about how this is actually working as posted above.
In many states, the police take your money first, then only later (sometimes much later)force you to prove that it’s yours and that you earned it legally. This is a process that takes years, and often the people victimized don’t have money to fight the case, which the police know to be the case.
In fact, sometimes the police don’t even bother filing any sort of lawsuit at all. They just keep the money and force you to jump through all sorts of expensive legal maneuvers to get it back, which most people don’t do.
It’s a pure shakedown racket. They’re not stopping rich white guys who can afford lawyers. They’re stopping the people most vulnerable and least able to defend themselves.
And yes, some of them are criminals who deserve to be stopped. So file a case, prove they’re criminals, and then take their money. That’s how the system is supposed to work. The framers of the Constitution didn’t want a single innocent person being convicted of a crime, so they put the burden on the state to prove guilt.
Their will is being subverted.
Using your example, would it have been OK for the family of Ron Goldman and Nicole Brown Simpson to break into OJ’s house and take $33 million from him, then later sue him for the money? Oh, and in the time between, they don’t tell him anything, including why they think he owes them the money.
magnet
3371
Yes, this is problematic as I mentioned above. But I don’t think it’s unconstitutional, or even unprecedented.
If you are in a civil dispute, the property in dispute can temporarily be taken from you until the dispute is settled, which can take a long time. This is not uncommon in divorce proceedings, where bank accounts and other assets are seized until the court determines who is the rightful owner.
In these cases, the justification is that if the parties can freely access the assets during the dispute, then the assets will vanish. Which is reasonable in principle, but I think it’s overused in civil forfeiture.
Police can’t keep your property indefinitely without filing a lawsuit.
Yes, of course. But all these things are present in pretty much every aspect of the law. That doesn’t mean that the entire judicial system is unconstitutional. It means that it is intrinsically unfair.
Menzo
3372
Boy, you are really stretching to defend civil asset forfeiture. Your examples are not apples to apples at all.
A dispute with the State is nothing like a dispute between private parties. The State already has enormous advantages, and this removes the requirement of presenting any sort of case at all from them.
But hey, our police need money to buy militarized vehicles and grenade launchers, so they gotta find it somewhere.
This is probably true, though I’m guessing this results from a court directive of some kind. Are there similarly authorizing court directives when the police seize cash or other property from suspected drug dealers they stop but don’t charge? My impression was ‘no’, though I don’t know that.
It isn’t hard to imagine a court deciding that pre-emptive civil asset seizure, absent any judicial order, is unconstitutional.
Menzo
3374
Especially considering that all it takes is a single officer to say that he thinks the money was gotten illegally. The incentives are huge for these departments.
They stop an immigrant in Kansas on his way to California for some ancillary purpose, find $20k in cash and take it. What are the chances this guy can mount any sort of defense at all? Can he hire a lawyer? Not anymore, since you just took all his money. Will he bother to travel back and forth for the various court dates? Probably not. So most likely he’ll just let you keep the money.
Why bother with warrants? Who cares about probable cause? He’s an immigrant with $20k in cash so he’s probably a criminal. Drugs, prostitutes, whatever. Take the money.
Indeed, it wasn’t hard to find a court ruling seeking to prevent this sort of abuse.
Which means it is really just a question of how much seizure violates the constitution.
Menzo
3376
Yep, no constitutional issues here.
Yes, but magnet will tell us how wrong we are in 3…2…1…
Menzo
3378
More bullshit.
the County Attorney’s office informed Ms. Cox that the state’s civil asset forfeiture laws would doubly punish her if she pursued her claim and didn’t win—in the end, she would lose her truck and be required to pay the county’s attorneys’ fees and investigation costs, which would exceed the value of her truck. Ms. Cox couldn’t absorb the financial risk involved, so she was forced to withdraw her claim and give up her truck to the authorities.
Menzo
3379
Not often we get someone arguing against both the ACLU and Institute for Justice here, but every day is a school day
Executive Summary:
Under state and federal civil asset forfeiture laws, law enforcement agencies can seize and keep property suspected of involvement in criminal activity. Unlike criminal asset forfeiture, with civil forfeiture, a property owner need not be found guilty of a crime—or even charged—to permanently lose her cash, car, home or other property.
If the Court ruled that a civil asset seizure / forfeiture ordered by a court after a finding of guilt was unconstitutional, of course they can find that one where no court was involved and no charges ever even filed is unconstitutional.
