3381

True, but the courts treat a civil dispute with the State just like a civil dispute between private parties.

That’s not true. You can argue that the courts are more willing to believe the state, but they are still required to go through all the motions like everyone else. Which is what due process is about.

What do you mean by pre-emptive civil asset seizure?

The state cannot take $10,000 and spend it on new uniforms without a court order.

The state can take $10,000, secure it in a locked box, and later ask the court to let it keep the money permanently. The same way it can take you, secure you in a locked cell, and later ask the court to keep you there permanently. (The former requires at least a preponderance of evidence, the latter requires evidence beyond a reasonable doubt).

Without a court order, seized property must be returned to its owner. Just as someone who is arrested but not charged before a court must be set free.

3382

Since you’re not interested in reading any of the numerous examples that prove you wrong, I guess we’re done here.

3383

Sorry I was still responding to your previous post.

Again, I do think that civil forfeiture is often unfair. Your ACLU articles explain why it’s unfair, and why we need reform. But unfair does not necessarily mean unconstitutional.

Nevertheless, I agree that in some cases it might be unconstitutional. Not on due process grounds, though.

The problem is when the state cannot justify how much it takes. For instance, it can seize your house if it suspects you are a drug dealer. But that must mean that it suffered damages equal to the value of your house, or it is imposing a fine equal to the value of your house. The former is hard to prove, the latter might be so high as to be unconstitutional.

In other words, it’s an Eighth Amendment issue, not Fourth or Fifth.

Yes, exactly. But this has nothing to do with due process, warrantless seizure, lack of conviction, etc.

3384

When? What compels the return if the owner doesn’t pursue it? What I’ve read is that, in most cases, the seized assets become the property of the state / law enforcement agency once a certain amount of time passes without an attempt to recover the property, and that this is the outcome in the majority of the cases. That doesn’t really sound like what you’re describing.

3385

Sorry, I assumed that the owner would pursue return of their property.

So, to clarify: if the police seize assets but do not ultimately obtain court authorization, then if they are sued they will be forced to return the property. Just as if the police arrest someone but do not ultimately file charges, then if a writ of habeas corpus is filed then they will be forced to set them free.

3386

Why would you assume that? Everything I read about civil asset seizure suggests that most often doesn’t happen. It’s not hard to imagine the impediments to suing to get your property back from the police.

Edit: I mean, never mind. You’re pretty obviously shifting ground constantly to maintain your starting posture. But if the actual practice of the law results in what amounts to unreasonable seizure, it’s not hard to imagine a court deciding that the law and practice violate the constitution.

3387

I don’t doubt this is true, another example of intrinsic unfairness and motivation to reform the laws. But not (by itself) a matter for the SCOTUS.

3388

So…without a warrant or any sort of evidence what-so-ever, police can seize your belongings and require YOU to sue THEM to get your stuff back.

This is absent them ever charging you with a crime.

And you don’t see that as a problem?

3389

Without a warrant, the police can tow my car, and if I do nothing they will eventually sell it.

It is a problem, which I hope I’ve already made clear. But not every problem is a constitutional problem. This particular problem must be solved by legislatures.

3390

My initial posture, which I stand by:

There is due process, and nobody’s money is guilty until proven innocent. However, forfeiture is a civil proceeding, not criminal. …

The problem is not that assets can be seized even without a conviction. The problem is that assets are seized by the state before the civil suit is decided.

3391

I don’t see any reason to think yours is a more reasonable position than mine.

3392

The problem is that you say things to support your position which turn out to be not entirely and completely true, and when someone points that out, it doesn’t change your posture, it just causes you to shift the argument a bit and carry on.

3393

My position, all along, has been that civil asset forfeiture (like other civil seizures) does not require a conviction, does not require a warrant, is subject to judicial review, and does not violate the due process clause.

I acknowledged the potential Eighth Amendment issues when the case was first decided.

3394

In practice, none of these claims appear to be true:

3395

I think we are talking about different things.

For instance, I think most people would agree that “To be convicted of a felony, a prosecutor must present evidence to a jury of one’s peers, and they must unanimously agree that the defendant is guilty beyond a reasonable doubt.” Yet the vast majority of felony cases end in a plea bargain, no evidence is presented at trial, and no jury unanimously agrees on conviction.

In one case we are referring to the ground rules, and in the other we are referring to actual practice. In an adversarial system, rules are often enforced only when someone insists on it. If you want, just append “unless nobody objects” to my three statements.

Personally, I think that the ground rules regarding civil forfeiture are generally in keeping with the constitution (with caveats). You seem to be arguing that in practice the outcomes are unfair, and I agree. But I don’t think that means they are unconstitutional. Of note, an “unreasonable search” is one that is not supported by the applicable standard of evidence (e.g., probable cause). It does not refer to unfairness in practice.

3396

Meanwhile the state has possession of their assets. Seems like a fair and just system.

3397

Coming back to this, the answer seems to be that the police / authorities never let it get that far. If someone seems prepared to fight, has the deep pockets to press the fight and looks to have some chance to win, they make a deal. You get some or all of your money back in return for agreeing not to press legal action. No court cases, no Court review.

Everyone else is of course fucked.

3398

If you only get some of your assets back even when you threaten to actually use the court system… then it’s not right either. They should not have the right to take, keep or claim anything until the court says they have that right.

This system is screwed up, and I don’t care if they wave the drug dealer, organized crime flag. They’ve already proven they can’t be trusted to use these kinds of powers in the narrow cases they were intended for so… they should lose that power. That’s it. It’s not an what-if scenario. We already know it’s abused due to historical evidence that’s been abused.

3399

Yes, I completely agree. In practice they’re violating the prohibition against unreasonable seizure, and the courts will eventually rule that way. Assuming democracy survives, that is.

3400

Civil Asset Forfeiture and Qualified Immunity are at the top of the list of bogus, “always give the police the benefit of the doubt” doctrines which have led to enormous and ongoing abuses, and make no sense in a nation of law when police are already swimming in a sea of perverse incentives.