Civil forfeiture is a direct and obvious violation of the US Constitution and shouldn't even exist under the USA legal system and is dangerous to the US legal system:
"Article the sixth... The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Police under the US Constitution have to go before a judge and court and make an Oath under perjury of law describing the items to be seized. There has to be a justification and supported by affirmation meaning evidence and supporting facts. In the case of the building that was seized it was operating a perfectly legal business under state law. It had the necessary licenses and permits. There needs to be a direct challenge against this type of extra-judicial seizure in the US Supreme Court as it's a clear challenge to the entire operation of the rule of law and legal system.
The workaround under which civil asset forfeiture operates is that they're not charging the property owner - or the property holder - with anything. They're bringing a civil case against the property itself (jurisdiction in rem). The property itself is the defendant. [1, 2]
Which leads to some pretty hilarious case titles:
"United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls"
[edit] "South Dakota v. Fifteen Impounded Cats"
[edit] "United States v. One Solid Gold Object in Form of a Rooster"
In my opinion this tactic should be illegal.
[edit] As far as I know this only really exists in the US, and in Canadian admiralty law (so, only in the US).
It obviously should be illegal, it's a legal shenanigan on tier with "your honor I didn't assault that man, I was simply swinging my fists and his face got in the way"
It's every bit as dumb as "sovereign citizens" trying to argue that they aren't subject to traffic laws because of a centuries old maritime treaty. Unfortunately, it's the people in charge slinging the dumb argument, so it flies.
What’s weird is that American higher courts are often quite good at eviscerating this kind of nonsense, usually by pointing out that such a “workaround” would make the constitutional amendment toothless, and it was not meant to be toothless, so the workaround is bunk.
That civil asset forfeiture has survived is simply because the courts are gutless about it.
There is a very long and plainly wrong string of Supreme Court decisions which stretches all the way back to the nation's founding. The courts are very good at precisely the opposite thing that you're describing.
I think most people kind of assume that the courts are this sort of shining beacon of enlightened liberal thought: they occasionally seem to have "duds" -- but those are intelligent and well reasoned duds. They're interpreting the constitution in a way some don't like, sure, but still upholding it nonetheless, right?
I mean, this thread here about civil asset forfeiture is a great example. If you ask any non-lawyer brained person whether it's wrong, they'll say, yeah, of course it's illegal for the government to just steal your shit. Why is this even a question?
Oh, but no, you see, the courts have wisely decided, using an argument that you might hear from a 5-year-old ("actually, this piece of property is actually a mystical ghost that we can treat as a people!"), that stealing your shit is, in fact, legal.
I really encourage anyone curious about this powerful and unaccountable institution to read some of the shittier Supreme Court decisions. They are often, simply put, stupid. Like, a regular non-lawyer person can read them and handily "eviscerate" their arguments.
My favorite, idiotic decision from a higher court this year was the judge that argued in her opinion that the federal government's legal authority to protect the public from infectious disease did not extend to mask requirements because the law says they can require sanitation, but wearing a mask doesn't "sanitize" anything.
Ignoring the fact that the point of a mask is to "sanitize" the germ filled air coming out of or into your mouth, the same law says "or other measures" as needed to protect the public.
It was such poor logic, especially considering the context of the original law at the time (fighting tuberculosis) and the potentially damaging aftermath of such a precedent (not hard to imagine a future, more deadly virus that some politicians decides is a political inconvenience).
Governments doing stupid shit like this only encourages "sovereign citizens" to think similar word games and semantics will work for them too. They're naive of course; they seem to think the system is a machine indifferent to class or social standing, which simply isn't the case.
Warren Buffet could do it if he wanted, using his wealth to earn the favor of the right government officials. He could even buy himself a private police force to do the seizing. A real police force, licensed by the state but employed and paid by himself. This sort of thing is already a reality in America.
Anyway, my point is sovereign citizens seem to see the system as a machine, the function of which can be manipulated by giving it cleverly formulated inputs. They have a hacker mindset. They see lawyers and politicians doing this sort of thing all the time, and believe they can do the same if only they find the right incantation. It's as though somebody witnesses the Fonz hit a jukebox to make it work, then figure they can do the same trick if they hit that jukebox in the same way. Except it will never work for them, the jukebox only behaves that way for the Fonz.
Certainly some sovereign citizens see the system as a rigid machine, but many simply believe it should be and act accordingly. They are idealists, not necessarily deluded about reality or trying to hack the system (although those types definitely do exist, I won't deny that). It's almost like a way of turning your life into a demonstrative protest against the "big lie" that is the law and refusing to fall in line.
but the reality is that law was never this, and their life of protest is led against a straw man, and it's completely ineffective in bringing reality closer to that principle.
So, we should never try to be better, because the past and present suck? Your logic is extremely cynical and self-defeating. No change would ever occur with such a mindset.
It could be argued that Buffet already has such power, as there are all kinds of weirdness around the police forces belonging to the railroad industry in which he is heavily invested through BNSF. I've never heard of him abusing this power but the potential certainly is there.
I'm no "sovereign citizen", and occasionally enjoy compilations on youtube of them getting owned in front of a judge (makes for a good laugh).
I do however find some sympathy with _one_ of their arguments, where they argue they never consented to be governed.
I mean when I think about it, I was born into an established system that imposed its rules on me from birth. I had no say in accepting/rejecting the rules. I'm essentially property of the state, subject to its whims with little to no hope of changing them. So I get where some people come from with a "naw fuck that" attitude, even if I see such resistance as futile.
Not directly sov-citizen related, but that does intersect with a broader community of people upset over how property works in the US. Namely, you don't own a damn thing. All deeds/titles are fee-simple, in that you merely buy and sell the right to rent that land from the government for as long as you can afford it. "Renters" in the colloquial sense are really renting twice, which is why "owning" is better. True ownership of property however no longer exists in the US.
Maybe we can experiment with better society designs on mars, where landowners are truly sovereign and the state only owns the commons. Enforcement then only exists in the commons (and optionally on property with the consent of the owner).
Plato's Crito[1] deals directly with this question, after Socrates has been found guilty and sentenced to death for 'Corrupting the youth', his friends offer to help him leave the city rather than die.
To paraphrase, Socrates says "Though not explicitly, I have by my actions agreed to be ruled by the laws of Athens by carrying out my life here and not choosing to move away to somewhere with a different set of laws"
I believe Plato will say they consented to be governed by this state, not at birth, but throughout their life by choosing to stay in a place that is governed by this state and enjoying the benefits.
I think that's somewhat different because in Ancient Greece there was extreme decentralization. Cities were sovereign entities with an extreme diversity of ideological and other values. Compare Athens and Sparta, for instance. And so in this system, if one stays in a city then there is a strong argument to be made that they are implicitly supportive of the laws and rules of said area.
In modern times this isn't really the case. There tend to be immense legal restrictions on movement, let alone living + working in different areas. And the differences that do exist between even nations within the same "sphere" tend to be relatively negligible compared to, again, the sort of monumental differences you'd see just between different Greek city-states like Athens/Sparta.
> There tend to be immense legal restrictions on movement
There were extreme legal restrictions on movement in Ancient Greece, too. You couldn't just pack up your bags and move to Spara or Athens and become part of the citizen class.
And as a non-citizen, there were a lot of different ways that you could be abused by citizens, with little recourse.
Just because despotism and abuse was decentralized, doesn't mean that it wasn't despotism and abuse.
> There were extreme legal restrictions on movement in Ancient Greece, too. You couldn't just pack up your bags and move to Spara or Athens and become part of the citizen class.
In your belief, from what comes Plato's link between place and state? Places exist before states and often afterward. Can a state exist without place? If a place can exist without any particular state, can a person have a link to a place independent of a state?
>I mean when I think about it, I was born into an established system that imposed its rules on me from birth. I had no say in accepting/rejecting the rules. I'm essentially property of the state, subject to its whims with little to no hope of changing them.
Would you rather be born into a state of anarchy? I think Hobbes addressed this.
As a counterargument to Hobbes here is an excerpt from "The Dawn of Everything" in which Graeber and Wengrow argue that Hobbes' assertion isn't based in evidence.
Most of the anthropological evidence sides with Hobbes. The rates of violence in hunter gatherer societies is massive, with 10-15% of people dying at the hands of other humans. For the 20th century, despite two world wars, this figure was about 2%
The evidence is very sparse, and what we do have suggests that modern hunter-gatherer societies are, on average, no more violent than humanity in general. (My personal if limited observation, having lived briefly with several, is that they seem to be notably less violent than the -- often frontier -- communities around them.)
Steven Pinker has muddied the water with quite a lot of nonsense in The Better Angels of our Nature. An interesting, better-sourced and less cherry-picked read is a 2013 paper in Science[0].
The evidence is not sparse, it comes from a diverse set of sources from observation of existing hunter-gatheter communities across different continents as well as archaeological evidence. It's true that violence is much lower in absolute numbers. But by virtue of drastically lower overall populations, the proportional rate is much higher. 5 people killed our of a kin-group of 100 people is like 15 million people killed in the USA.
There is an appeal to the thought that humans in a natural state are peaceful. Because if modern society has made mankind violent, then we can hopefully roll back it's influence and restore us to that peaceful state. But that's not what our evidence suggests.
The problem with this is that all modern hunter-gatherer societies are under extreme pressure due to the theft of their lands and resources. This is particularly true in the context of the anecdotes given in the linked article, even if its characterization of today's !Kung or aboriginal peoples in Australia as being in a state of "almost constant tribal warfare" is bizarre (to put it kindly and assume good faith).
There is also an idealogical appeal by the likes of Pinker to the idea that nation states are the only structures that can prevent us from a return to a kind of endemic violence amongst hunter-gatherers. This thought has historically been exploited by those who would steal their lands, and do it "for their own good".
You might call it "doing a Chagnon" - precipitate violence, use that to characterize a people as warlike, then use that as a pretext to take even more resources.
Of course it's possible to find a hunter-gatherer society which is more violent than a particular modern nation state. It's also trivial to find an inverse example. When you look at what evidence we do have, you see that hunter-gatherers are no more or less violent than the rest of us, and when violence does flare it happens for the very same reasons it happens anywhere else.
Your point about butter gatherers being pressured by the encroachment of civilization is true. But in those situations, the rates of violent death are mostly in the 25-60% range, as was observed in many of the Native American societies during the colonial period. It's important to exclude these outliers due to the influence of encroaching civilizations. But even absent these outliers, and exclusively drawing on archaeological evidence, the rates of violence in hunter-gatheter societies is drastically higher [1].
Therein lies the problem though. Even if we take the numbers from the linked article (whose starting point was... Steven Pinker!):
- the "ethnographic evidence", which I accept you're not defending, largely features indigenous peoples during an active genocide.
- the archaeological evidence is, naturally and obviously, extremely few and far between. Much of it doesn't relate to hunter-gatherers at all. As for the rest? Taking one at random: the 12% violent death share at Ile Téviec. Read the sources and this is extrapolated from three (3!) bodies. Two of which were apparently not violent deaths after all. The remaining body? We have no clue if the incoming arrowhead was from warfare or a hunting accident. How unfortunate if a single 6,000 year old hunting accident is labeling entire peoples violent and uncivilized. Either way, it's nonsense all the way down.
What was the historical rate of violence amongst, say, the Zo'é people? They are very isolated today and violence is apparently unheard of, but what happened in the past? We can't possibly know. What of the Awá? No hint. The Sentinelese, even? Who knows?
My point is that all of these data are so limited, so compromised and often so cherry-picked it's revealing nothing very helpful. What little we do know is that rates of violence amongst different hunter-gatherer peoples today, despite them all being under immense outside pressures, are extremely variable... as it is between all other different groups of humans. That observation doesn't sell books, though.
> the "ethnographic evidence", which I accept you're not defending, largely features indigenous peoples during an active genocide.
Incorrect. Plenty of hunter gatherer societies are highly isolated and are not experiencing active genocide or displacement. Even ignoring those outliers that are in such a situation, they still exhibit rates of violence many times greater than modern societies.
> - the archaeological evidence is, naturally and obviously, extremely few and far between. Much of it doesn't relate to hunter-gatherers at all. As for the rest? Taking one at random: the 12% violent death share at Ile Téviec. Read the sources and this is extrapolated from three (3!) bodies. Two of which were apparently not violent deaths after all. The remaining body? We have no clue if the incoming arrowhead was from warfare or a hunting accident. How unfortunate if a single 6,000 year old hunting accident is labeling entire peoples violent and uncivilized. Either way, it's nonsense all the way down.
Correct, no sane anthropologists would use a single sample to draw conclusions. But there are many such sites and estimates are drawn across a wider body of samples.
> What little we do know is that rates of violence amongst different hunter-gatherer peoples today, despite them all being under immense outside pressures, are extremely variable... as it is between all other different groups of humans
For the third time, no, this is incorrect. Rates of violence among hunter gatherers, even among those highly isolated from other societies, is much greater than modern societies. You're probably reading sources that claim that few death occur due to war. But that's because the authors of these papers just categorize the motivation for killing as something else, like revenge. The rate of death is usually in the 10-15% range.
The data you've presented just don't allow us to make those claims, and fall apart at the gentlest interrogation:
- much doesn't relate to hunter-gatherers at all
- some is a tiny sample size (in the only case I dug into, n<=1!)
- the bulk of it involves peoples under pressure from encroachment (and worse)
- by its nature it's woefully incomplete, some of it cherry-picked, and ignores the majority of hunter-gatherer peoples
It's a fascinating and important question, though.
And they're right. They never (formally, explicitly) consented to the rules. But therefore... what?
They have three options. One, they can choose to live and operate under those rules. Two, they can work within the system to change the rules. Or three, they can go somewhere that has rules more to their liking. This isn't a prison; they can leave any time they choose. One could even argue that by staying in the country, they are (informally, implicitly) consenting to be governed by its rules.
But instead, they try a fourth alternative: Stay, but pretend that the rules don't apply to them because of laughably bogus legal theories. That doesn't work, no matter how many new legal theories they try, and no matter how much bogus logic and philosophizing they throw at it.
We've got a lot of non-sov-cit people who don't consent to the rules. We call them "criminals".
> Or three, they can go somewhere that has rules more to their liking. This isn't a prison; they can leave any time they choose.
That's an illusion of choice, though. There isn't any unclaimed, habitable land anymore. If your views don't align with any of the 195 existing countries, then this isn't actually an option. It's just 1 or 2, but in a different location.
You can't be an anarchist, ever. There's nowhere to do it. If you want to live somewhere that pledges itself as a Christian theocracy, you better hope you're Catholic. Ditto for most religions, really. Or if you want to live in a sovereign entity with the population of a small town.
The options are really just "suck it up" or "spend your whole life trying to change it". I'm genuinely curious what the sovereign citizens would do if they were allowed to secede any land they own. It's not for me, but I am curious whether they'd actually leave or if they just don't want to follow the rules.
While your three options are the three practical options, one should note that it's not trivial to move to whatever country you might want, and not just because of costs.
Getting a work permit in another country is usually pretty hard, for instance.
Still, even with that, I think we (as a society/civilisation) need people like that, challenging the system in all sorts of ways. And not everyone not obeying the rules is a "criminal" — none of the civil offenses qualify, for instance, even in the legal sense.
Of course, some of those "challenges", especially most of those criminal ones, should be dealt with proper "retaliation" (prison sentences, large penalties...) from the society so it's obvious which "challenges" are not welcome. But let's not forget that many of the things we take for granted today have been criminal in the not so distant past.
> While your three options are the three practical options, one should note that it's not trivial to move to whatever country you might want, and not just because of costs.
It's also not trivial (Next to impossible, actually) to survive alone, completely independent of society.
If you want the benefits of society, you have to abide by its rules.
And how do we keep government employees honest when the courts uphold government immunity? In the present topic of Michigan town extortion, how will the government employees be financially and criminally punished?
By engaging in government. You know, voting, protesting, primaries, lobbying, running for office, propagandizing, working with organizations who do all those things, etc.
I've wondered at times if it would make sense for there to be an explicit legal proceeding at the age of majority in which you explicitly opt in to the social contract analogous to the naturalization process when a foreigner becomes a citizen.
I get hung up on what happens if you choose not to opt-in.
(I'm skeptical of the very premise of colonizing Mars, but putting that aside..)
I expect what forms on Mars, at least initially, will resemble the high seas a lot more than it does any country. You'll have facilities owned and commanded by corporations operating under flags of convenience, more or less free to engage in any nastiness they like (at least until a navy or coastguard with guns shows up to enforce their will on the facility.)
Perhaps, though that seems like an unstable equilibrium. By the time we have communities up there, they're have their powerful and their not powerful, just like we terrestrials.
> where they argue they never consented to be governed
They also never consented to birth.
They are free to renounce their citizenship, however. Nobody is forcing them to stay US citizens.
> Maybe we can experiment with better society designs on mars
Hate to break it to you, but Mars colonies (assuming they ever exist) are going to be dictatorships. Lifeboat ethics don't leave a lot of room for arguing, let alone voting.
You can leave most countries and renounce citizenship, typically with some hoops to jump through but it can be done.
The questions of where you'll go and how you'll support yourself are something that you'd best figure out before starting that process, because after you start your country of origin may well say 'not OUR problem anymore' about you.
That's not really the US's fault though, right? "You're free to leave, but if you want to stay here you have to abide by our rules," sounds reasonable I think. There are countries in the world where you're not free to leave even if another country will take you, and this argument would hold a lot more water.
Renunciation is not free - they literally charge you for it. You also can't renounce without obtaining another citizenship, which, surprise, surprise, you generally have to buy with both time and money.
The book Decline and Rise of Democracy goes into detail about this. Pretty much all nations that had a resource jugular (I.e. Egypt with the Nile) become extractive societies.
>> you merely buy and sell the right to rent that land from the government for as long as you can afford it.
You seem to be speaking of property tax on land. Did you know not all land is on county assesor tax roles? Have you researched how to find land not in the county tax catalog?
Moreover, parents should own their kids since they gave birth to them. They should be legally be able to take every decision for them, and be their guardian, until they die. They gave their children birth after all.
We tell these people about "social contracts" then smirk when they raise the common sense objection of never signing such a contract in the first place.
Of course a social contract is not at all the same as a real contract, a social contract is not a document that you sign, it applies to you whether or not you ever consented to it. But when language that seems to conflate the two is used to persuade people who don't really have a firm grasp on the way the world works, it seems cruel to laugh at their confusion.
Once it was broadly accepted that the 14th amendment made corporations into people, the die was cast on the creation of these types of legalistic shenanigans.
The issue is that in rem jurisdiction was originally intended and justified for cases where the owner of the property was unknown or beyond the reach of the law (say overseas.) The early cases were things like an overseas shipper not paying proper import taxes. For cases like this, in rem seems reasonable to me.
Where things went off the rails is when they started applying this to cases where the owner of the property was known, and that owner should have their normal fourth amendment rights.
You give the government an inch and, historically over and over again, they take a mile.
The Presidential Surveillance Program was justified using Smith v. Maryland. The argument was that, if Smith had no reasonable expectation of privacy for metadata in isolation, no aggregate of citizens had an expectation of privacy. Therefore mass surveillance of metadata is legal. You let the government see the phone records of one citizen without a warrant and decades later you have something like 33% of all email, TCP/IP, and phone metadata being collected and analyzed by a government agency without a warrant.
The old saying that the 1st Amendment doesn’t apply to “yelling fire in a crowded theater” was an argument a Supreme Court justice used to justify jailing a man for handing out anti-draft pamphlets. You let the government regulate speech that poses a clear and present danger and they use that to make it illegal to oppose a draft.
> The old saying that the 1st Amendment doesn’t apply to “yelling fire in a crowded theater” was an argument a Supreme Court justice used to justify jailing a man for handing out anti-draft pamphlets.
This whole 'you can't yell fire in a crowded theater' thing is not a real thing.
Per @popehat:
5/ '"shout fire in a theater" is a rhetorical device used in 1919 to justify jailing people for writing anti-draft pamphlets in World War I. The First Amendment standard (to use the term generously) applied in that case has been dead for more than a half-century.'
6/ 'The same judge went on to smirk "three generations of imbeciles are enough" to justify forcible government sterilization of persons deemed undesirable by the state, so you know, he had a way with words.'
7/ 'So when you trot out "you can't shout fire in a theater" in response to a First Amendment question, you're using the catchphrase a eugenicist used to support jailing people for criticizing the draft in a case that hasn't been good law for a half century.' [1]
There's no modern attachment to eugenics or the draft though. A person full of bad ideas can still have a good one, and it's noticeable that his others do not persist
> 7/ 'So when you trot out "you can't shout fire in a theater" in response to a First Amendment question, you're using the catchphrase a eugenicist used to support jailing people for criticizing the draft in a case that hasn't been good law for a half century.' [1]
That's true, but it's also true to criticize anyone citing the constitution by pointing out that it was written by slaveowners and perpetrators of genocide.
For some reason, though, that argument never goes over well. Maybe it's because the character of the person who made an argument hundreds of years ago is only relevant when you disagree with the argument.
So the defense of violating people's right to be secure from seizurs is some mumbo jumbo about charging objects with a crime? How does charging anyone or anything relate to the 6th amendment?
The right of the people to be secure in their ... effects, against unreasonable ... seizures, shall not be violated
The building was part of the person's effects. I don't understand how your argument is legal (not that I don't believe you - civil forfeiture has been going on long enough that I assume SCOTUS has heard a sampling of cases).
It beggars belief that this practice has stood for decades.
Seizing objects violates the owners rights, not the objects rights.
Another angle of defense might be to ask if it's even possible to violate the 6th amendment. What would violating the 6th amendment look like? I suspect the answer will closely resemble civil forfeitures.
If that's the case, then what's the point in seizing it? The crime has already been committed, the pile of money being taken doesn't change that one bit.
If I use a payphone to order a hit, is it reasonable for the government to come rip it out of the ground? What if I use a freeway to smuggle drugs? Now the road must be torn out?
Money is fungible and has all sorts of uses. Any particular pile of cash is no more or less likely to be intrinsically criminal in nature. Just like phones and freeways.
The point is to make the crime unprofitable so people will not want to do it. This is not a crazy policy assuming the crime actually happened. The ridiculous part about civil asset forfeiture is that no one has to prove a crime even occured. The onus is on the pile of money or whatever to prove its innocence.
That's a great question. Unfortunately I don't have the answer but I believe it has something to do with civil v. criminal cases. I just know that's the line of thinking that these top legal minds are using to justify this bs
> People have constitutional rights, objects do not
I'm pretty sure that's been modified to US people on US soil, at least 100 miles from a border, have constitutional rights, but those rights were all intended to mean something different than what they actually say.
I've thought about that one a lot and I think it is the real intention. The admitted purpose of punishment in the legal system is punishment, not rehabilitation. That is something that can be change, but until it is, only punishments both cruel and unusual are prohibited. Unusual but not cruel punishments allow for flexibility like forcing someone to write a paper or read a book. Other punishments, like putting someone in a cage, are necessarily cruel.
This country was founded with a workforce of slaves and indentured servants, ankle deep in the blood of natives. One might rationalize with difficulty some way to argue the US isn't racist by design because of that, but to argue that it was civil libertarian is a step too far.
The civil libertarian language comes from being heavily seeded by small Protestant cults, but not wanting to fall into European-style religious wars over it. Also, ironically, to protect the rights of a slaveholding minority.
Customs /international shipments. There is a long history of seizing illegal or suspect material at boarder crossings where the actual owner/importer is unknown or not available. A funny-named lawsuit against a box is significantly better than the alternative: zero legal process and no case recorded anywhere.
Agreed, it makes sense in some contexts. The issue with asset forfeiture is that the state pretends not to know who the owner is so they can move forward in rem.
[edit] Well, two problems: frequently the entity seizing the property gets to keep it and add it to their budget - or split the proceeds. This creates an incentive for them to move forward this way.
I just can't make sense of the "vs" in the case titles, in what way is the object fighting back? Why is there a case at all and not "here is a list of contraband seized at the border" ?
Why is there a case at all and not "here is a list of contraband seized at the border" ?
I would assume the legal procedure is what determines what actually happens to the object. Just like the police arrest people but don't sentence them or put them in prison directly.
Lawyers have that habit of taking an obviously false fact and rewrite it so that you can't prove by Boolean logic using laws or prior legal decisions as premises that they are false. Instead, you have to recourse for synonyms or even to the words meaning (some times, the meaning as used, not as the dictionary says). Then they pretend the new writing is a completely different thing from the meanings it convoys, and that what they said is absolutely true, since you can't algebraically prove it's false.
It's common in admiralty law everywhere. If you have a ship that hasn't paid its docking fees, what can you do? The owner is an ocean away and won't come to court even if you find a way to inform them. If you let the ship sail the port will never be paid. It can be arrested and, if necessary, auctioned to pay the debt. But you can't do that without a court order. So there is an in rem action against the ship itself. It makes perfect sense in that context (and in the one that other commentators have mentioned, which is unaccompanied packages of contraband). Also prize and salvage actions, which are also admiralty proceedings.
The difficulty comes when you stretch the concept like with civil forfeiture. It's not even necessary: England and Wales has the Proceeds of Crime Act to allow seizure and forfeiture of criminal property and all the cases under that are ordinary in personam actions between the state and the putative criminal.
> If you have a ship that hasn't paid its docking fees, what can you do?
You can sue the owner. If they don't show up that doesn't mean that they automatically win the case - if anything, it's the opposite. If you can't identify the owner you can make the case against John Doe and still have a state appointed defender represent the owner's rights. You can get a court-ordered injunction to detain the ship until the case is resolved.
I don't see why you need to invent a new legal concept here at all - other that it makes things easier for the state to seize things when they don't need to worry about such pesky things as rights.
Hmm. I've been wondering why all the Russian yachts have been "arrested" lately in the news as opposed to "seized", for example. It sounded very strange to me as I thought that "arrested" only applied to people.
Your use in this comment make me think that usage is tied to this legal concept of in rem.
I didn’t know this, thanks. This is preposterous. I was already strongly opposed to civil forfeiture but the shaky constitutional foundation makes things even worse (if that was possible).
One of my favorite (although also sad) was the time the U.S. Government sued a bunch of shark fins: United States v. Approximately 64,695 Pounds of Shark Fins.
I'm curious to if/how this relates to corporations having free speech rights under Citizens United vs. FEC.
Property is an asset, not a corporation (though could a corp. be an asset of a holding company?) but philosophically-speaking, "property itself as a defendant" and "corporation as a legal individual" seems connected.
Of course the same party who says that corporations should have “free speech rights” are the same ones that target corporations that speak out against their policies. It almost happened in GA with Delta Airlines and did happen in Florida with Disney.
In the case of Florida, if it isn’t struck down, it’s going to caused the cities in the surrounding area to have to pay higher taxes and take on Disney’s debts.
Here is a lengthy and relatively accessible discussion of how the mechanics work. It’s essentially a byproduct of the language in the Controlled Substances Act and a few procedural tricks. Aka another way the war on drugs has harmed us at a fundamental, moral, and constitutional level.
I know that courts just interpret the constitution to mean what they want, but they really outdid themselves on this one.
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
lets just drop the pretense of even using that phrase
To me it is disqualifying for those analyses being taken seriously. If you are claiming that you are doing no interpretation and others are, that just not credible within the law. Of COURSE they are interpreting - that's literally the job. The idea that you aren't interpreting and instead are only divining what others meant is so incredible that it needs to stop being repeated.
Stop repeating the propaganda because it just normalizes a ridiculous phrase.
Powers will use any excuse, the excuse is a distraction. It’s much clearer and more effective to properly name what they are doing rather than indulge their demand of what ever silly term they invent to justify it.
There is no such thing as textualism, there is just (1) a belief that your are doing a thing you labeled textualism but is philosophically incompatible with the concept of the law or (2) lying. Anything from the right in the us as it relates to the constitution is (2).
And in this country, 'state power' often includes 'the power of the states (good state power) to tyrannize their residents as they see fit, without any federal (bad state power) oversight.'
> The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The upcoming court ruling, denies and disparages a right that was retained by the people for the last 50 years. In fact, it leads me to believe that the very reasoning used by the SC according to the memo is unconstitutional (they argue that since the word abortion doesn't appear in the constitution that it can't be considered by the court, a position that goes against the text and spirit of the 9th amendment)
Abortion is absolutely not covered in the Constitution and Roe v Wade was a one of the most twisted bits of logic I've ever seen out of the court. We need real legislation rather then trying to stretch amendments to cover things that they clearly don't.
I was tempted to see it that way, but the general right to be left alone by the government is most certainly in the founding character of the country. That right to be left alone most certainly applies to medical care. The only thing novel about Roe v Wade was applying the newer standard of gender equality to extend the right to be left alone to women.
Since we're talking about abortion, let's restate what should be abundantly clear - nobody is using abortion as a substitute for birth control. "Pro-choice" is an utterly stupid term that plays right into the political tempest-in-a-tea-pot, completely on-brand for the Democratic party. An appropriate label would be pro-medical-care. This whole topic is akin to debating whether individual states should be able to prevent their residents from receiving blood transfusions.
How is pro choice a stupid term? You are literally arguing that the government shouldn't get involved in someone's medical care, that they should be allowed to make their own choices rather than having the decision forced on them by the court.
The only reason i can see you saying this is that you are angry and have found a group to other. Perhaps you should do some meditation or smoke a joint or whatever to relax, and stop directing your anger at people advocating for a position you agree with.
"Choice" implies that abortion is some optional activity, directly supporting this red team narrative of convenience. Putting the focus on individual choice carries little weight with collectivists/conservatives, especially when there is an imagined second person involved. Meanwhile from someone in the position of needing a medically necessary or medically prudent abortion, the situation is anything but a choice.
The politickers have chosen the strongest statement to rally their own group around, but what it has actually done is create a potent straw man for opposition to rally around.
This is about the right to bodily autonomy, not medical care. Right now we have a right to not be searched, but don't have a right to do what we want with our own bodies. Give it a few years, watch in amusement as redneck states start attempting to ban tattoo parlors for "decency" reasons under the auspices of "proper medical care."
They're literally different and you know it to be true, but you'd prefer to play semantics because you can't back it up with logic. Like the idea that losing your job for failing to comply with public safety measures is the same as being charged with murder for aborting an ectopic pregnancy. Severing an employment relationship is nothing like incarcerating someone.
Yes, redneck states (I'm from Louisiana and live in Texas... I have no reason to be politically correct). The current opposition to bodily autonomy is historically intertwined with opposition to dismantling segregation, and there are many "super-concerned" adults living south of the Mason-Dixon who would be just fine with prohibiting their kids from getting tattoos because they clash with appearances at Sunday service. The exact same disregard for bodily autonomy for the purposes of preserving the life of a fetus also applies to body art.
This argument proves too much. One might say, for example, that the right to crush annoying smartphones isn't specifically addressed in the constitution or amendments thereof, and thus we must have that right. However, the states do have laws against theft, vandalism, etc. so we don't actually have the right to crush any smartphones that annoy us. The way to preempt those state laws would be with a federal law establishing such a right.
I am pro-choice, but such a federal law addressing abortion could have been passed at any point in the decades since (or before?) Roe. My understanding of the leaked ruling is that it would be overruled by such codification.
The weakness of the appeal to 9A explains why Roe itself did not rely on that.
> The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
That's great and all, but how did they ass-pull the third trimester restriction? Courts recognizing rights not explicitly found in the Constitution is what the 9th amendment permits. But to ass-pull a restriction to a right, when that restriction isn't found in the Constitution or any law passed by congress? Is that really what the 9th Amendment is about? That's hard to swallow if so. What if SCOTUS ass-pulls a restriction to the 1st Amendment and says it never applies to computers? Is that the sort of thing the 9th Amendment permits?
The Supreme Court has been stacked with ideologues and possibly criminals (given Mr. Kavanaugh’s history). I’ve even read that getting Gorsuch on the court required a huge payoff to Mr. Breyer — open corruption.
I’m not well versed enough in its history to know if this is abnormal. I find it unacceptable, but given the state of government in the US, I don’t have any solutions.
Hmm, I don't think that's accurate. Roe v Wade did say that Texas's statutes against abortion violated the fundamental right to privacy found in the 14th amendment. If Roe v Wade had simply said "It's a federal issue, it's up to Congress to pass an amendment if they want it changed", then I think you'd be right.
But Roe v Wade went further than that, with all the talk about pregnancy trimester nonsense. I buy into the premise of a right to privacy being derived from the 14th Amendment, but there's certainly nothing about trimesters in that amendment; it reeks of the court trying legislate. Either this right to privacy exists or it doesn't, it shouldn't be conditional on trimesters. I think this is where they fucked up.
Anyway, now Congress has to do what they should have done 50 years ago and sort this mess out the proper way.
Their argument about trimesters isn't terribly bad. The basic gist is that there are competing interests: that of the woman and control over her body, and that of the state in its interests in protecting humans.
They basically ignore the question of whether a fetus is alive or a citizen. It's the state's interest in protecting a potential person/citizen vs the woman's right to privacy.
The trimester system allows the controlling interest to shift as the fetus becomes closer to a citizen (and thus increasing the validity of the state's interest). In the first trimester, it's not at all close to a citizen and the woman's rights reign supreme. There are some concessions for the state in the second trimester, and by the third trimester, it's close enough to a citizen that the state has a compelling interest in preventing harm.
They explicitly call out that the right to privacy is not absolute, which is basically par for the course. The 1st Amendment doesn't let you incite violence, the second doesn't guarantee your right to buy a tank and ammunition, felons can't vote, prisoners can be slaves, etc. Basically none of our rights are absolute. It's a balance between preserving the rights of the people and the interests of the state.
It's an arbitrary framework, which the SC acknowledged, but you have to draw a line somewhere. Without a consensus on when life begins, that's always going to be an arbitrary line.
You should try reading the constitution some time - there's an amendment that disagrees with your reasoning. It's called the 9th amendment and it literally says that there are rights beyond those specifically enumerated in the constitution.
The constitution doesn’t grant rights to the people but sets down the restrictions on what the federal government can and can not do.
Anything and everything not specifically outlined in it is either retained by the people or governed by the states.
If the Supreme Court says the federal government doesn’t have jurisdiction they are simply returning the responsibility to the states or default legal status. They literally can’t strip away a right by returning it to the people.
I think you should read my comment again. I agree with the premise of a right to privacy being found in the 14th Amendment. It you understand that I understand that and are trying to draw my attention to something else, then I'm afraid I don't understand what you mean. What I find suspect is the court seemingly to invent a restriction to such an inferred right, the trimester rule.
The Supreme Court upholds a proud tradition of pretending that the 9th and 10th amendments don’t exist. I believe I remember Judge Bork pointing out, to general outrage, during his “confirmation” “hearings” that these amendments essentially don’t mean anything. He was just calling attention to the sad truth of the matter.
> There needs to be a direct challenge against this type of extra-judicial seizure in the US Supreme Court as it's a clear challenge to the entire operation of the rule of law and legal system.
There has been, and the Supreme Court upheld it. As I recall, they didn't even bother hearing the case.
Even that's just a start. According to https://www.forbes.com/sites/nicksibilla/2018/12/19/cops-can..., when one state banned civil forfeiture, it was so profitable that several cities kept doing it in violation of the state law, until courts finally forced them to stop 3 years later.
So next the federal DEA stepped in. Since the federal government still practices civil forfeiture in the state, local police agencies are encouraged to tip off the DEA to any property that might be federally seizable, and then the DEA pays kickbacks to the local police force that provided the tip.
This all sounds like racketeering and conspiracy to me. But you see, when the federal government does it, it's NOT racketeering and conspiracy.
Let's say my vehicle is stolen, and police find a vehicle at my neighbor's house with the identical make, model, and year but with the VIN sanded off. And this neighbor just so happens to operate a shipping company that specializes in shipping vehicles out of the country, but has never been convicted of anything criminal.
How would you say we should handle this scenario? We have a good reason to believe that the property is actually mine, and also that if it is not seized soon then it will be lost forever. (Since, as we all know, court rulings happen on much longer time scales.)
If you have an overly aggressive civil forfeiture law then the police can seize things when they shouldn't. But if you have none, then don't you hamstring law enforcement unnecessarily, and instead provide greater incentive for crime?
I think you have a pretty fundamental misunderstanding of what civil forfeiture is about. Civil forfeiture would mean the police take the car, don't return it to the rightful owner, and don't charge the thieves with a crime.
Police don't need civil forfeiture to hold evidence in advance of pressing charges, or to recover stolen property and return it to its rightful owner. They only need civil forfeiture if they intend to keep the car for themselves.
That argument might actually hold up with the current originalist Supreme Court. It's worth pursuing. There are upsides to constitutional originalism. There's no reason the Fourth Amendment shouldn't be taken as literally as the Second.
> That argument might actually hold up with the current originalist Supreme Court. It's worth pursuing. There are upsides to constitutional originalism. There's no reason the Fourth Amendment shouldn't be taken as literally as the Second.
You are confusing originalism with textualism (there is an argument that the current Court’s dominant philosophy [or mode of rationalization, for the more cynical] is both originalist and textualist, but your particular argument is more of an appeal to textualism than originalism.)
This is why Legalese was invented. They have to be as explicit as possible to avoid any possible interpretation of what was written other than what was actually meant. A legal document with any phrasing that is "subject to interpretation" will eventually be interpreted in a way the origin author did not intend.
"Unreasonable" is a highly subjective term and should not exist in legal documents.
Even ignoring any say the rest of the Constitution has on civil forfeiture, even the parts that you quote do not prevent civil forfeitures on their own.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"
The rub here is "unreasonable". The fact that the constitution explicitly proscribes "unreasonable" seizures means it also allows "reasonable" seizures.
So there is no clear answer here because unreasonable is completely subjective.
It’s only ambiguous if you ignore the clear intent of what was written. Just like how the right to a “speedy” trial somehow allows them to be delayed for over a year. Sorry the language isn’t ambiguous, the language is being ignored.
> Just like how the right to a “speedy” trial somehow allows them to be delayed for over a year.
Generally, when trials take a very long time to happen, it's because the defendant has decided it is in their interest to waive the right to a speedy trial.
Umm, Gitmo was messed up. But, to be clear, the United States does not guarantee constitutional rights to non-citizens who have not touched US soil, so this is a bit of a canard.
> J6 detainees?
Despite rumors of hundreds of January 6th detainees languishing in jails-- the actual number is approximately 35. Most of these have waived speedy trial. Most of these have not been detained for a very long time.
A few are still undergoing legal discovery. It's a problematic set of circumstances: further, closely related arrests happen; without providing additional information on the new arrests to existing arrestees' counsel, convictions could later be set aside. In turn, this restarts some clocks. On the other hand, judges are getting frustrated and warning the prosecution that these delays are becoming excessive.
the United States does not guarantee constitutional rights to non-citizens who have not touched US soil
I can't find this detail in my copy of the constitution. 6A in particular specifies "the accused". It's true that most Gitmo prisoners were never actually accused of anything (because they had never done anything, in particular anything related to actions undertaken by Saudi nationals under the direction of Saudi intelligence personnel), and were eventually released without apology. However, any prisoner who ever actually went to trial would certainly be classified as "accused".
These forfeiture trials are criminal trials. If the government is suing over a breech of contract or something that’s a civil matter, but when the government is acting with powers outside of those of a normal citizen it’s a criminal trial in everything but name.
So it’s doubly troubling as they are also ignoring the presumption of innocence and other such protections.
These forfeiture trials are not criminal trials. There are plenty of ways you can be civilly liable without breach of contract.
I do think the standard should be higher than a typical civil case (beyond preponderance of the evidence).
But this artifact of law has a reason to exist: if there's stuff that's most likely involved in a crime with no identifiable owner, it makes sense for it to be seized. Especially the original case of distant and difficult to identify ship owners. (Once an owner can be identified, I do think there should be greater protections-- deriving from the fourth, not the sixth, amendment.
We both agree with what’s going on and that it’s wrong.
I am saying the court system is misclassifying criminal cases as civil ones. You want to increase the standard of evidence which IMO means roughly the same thing. But, I can see why you might disagree.
There are quite a lot of kinds of case that don't fall neatly into one or the other. Another one (at least in England and Wales) is contempt of court hearings arising from civil proceedings. Judges have powers against, for example, litigants ignoring their orders. They're clearly coercive, and can carry prison sentences, but they aren't clearly criminal: the original judge can handle it summarily (even if they don't sit in criminal cases) and in any case the rules are those of the Civil Procedure Code (not the Criminal one). On the other hand, the contemnor is expressly given access to a lawyer, and a finding of contempt is on the criminal standard ('beyond reasonable doubt') rather than the civil ('the balance of probabilities').
An interesting instance of this happened recently, when an appellant in a civil case to our Supreme Court (who also happened to be a lawyer) deliberately leaked the court's draft opinion to the press while it was under embargo. The court wasn't sure what to do, as contempt findings carry an automatic right of appeal and yet there's no-one to appeal to from the supreme court.
(As we have more than one benchful of Supreme Court justices, they decided to assemble one panel for the 'first instance' hearing, which was itself distinct from that who had heard the original case, and a completely fresh panel for the appeal[0]. He was fined £5000 and the appeal was dismissed on all grounds.)
Allegations of fraud in a civil case have also historically been treated differently, because losing could have a similar effect on a litigant's reputation (and ability to carry out a business) as a criminal conviction. It's sometimes possible to get a civil jury trial under these circumstances, for example, which have been effectively abolished in this jurisdiction.
Your post that I responded to put it upon the defendant who stretches things out. Regardless of whether it is the civil or criminal, it is frequently the state which delays and adds procedure to these forfeitures for the purpose of grinding out the defendant.
> And if they don’t waive, it’s still on the order of months in most jurisdictions, isn’t it?
That’s not speedy.
Shorter would compromise the defense, who has less warning of the need to prepare for trial (that's why in the federal system, the defense, in addition to having a waivable statutory right for trial to start within 70 days of charging, also has a waivable statutory right for it to not start less than 30 days from charging.)
And it is speedy compared to the problems which motivated the guarantee.
I realize this is the predominant view, but it never made sense to me. I think we’ve just grown accustomed to it. The Constitution doesn’t say “prompt”, it says “speedy”. I’m sure those without the ability to pay pail, or who are denied bail, don’t regard their few months in the US’s notoriously dangerous jails as reasonable.
I agree, except that it’s a long time to be in jail, especially in some of the larger counties in and around cities in the U.S.. Fatally long, in some cases.
EDIT: Nevermind, I see that you addressed this down thread.
Look even waiting 3 months is already a failure of the speedy requirement. Saying well 1 year is too long but edge cases isn’t a minor issue… No anyone ever hitting 1 year is clear evidence of total failure of the system to even pretend to care about this issue.
> Look even waiting 3 months is already a failure of the speedy requirement.
3-4 months to get a criminal case together, with discovery requirements, etc, seems reasonable.
> No anyone ever hitting 1 year is clear evidence of total failure of the system to even pretend to care about this issue.
I don't agree. Terrible stuff happens occasionally-- it is not evidence that every element of the system is broken everywhere.
IMO the big issue is bail and pre-trial detention. Yes, criminal cases being in limbo is bad (and the constitutional right of speedy trial is important)-- but a lot of the reason why they take longer now than in the 18th century is because of additional protections for defendants.
"Shall not be infringed" is another one that is commonly interpreted quite differently than the most plain reading would suggest. (I say this as someone who does not own a firearm, so this is probably not gun-nuttery.)
Nah, well related militia was not a restriction on the right, it was a reason for everyone to have the right. You have to remember that the Constitution doesn't give the people rights, it delineates the governments rights. The 1st 10 amendment's were added because the anti- federalists were (rightly) worried that the government would misappropriated all powers and eventually the people would no longer be free. They were basically a list of rights for a minimum viable free society.
The first part also provides a context for understanding the second part. For example the right to "bear" arms shouldn't be read as including a general right to brandish arms, even though a less constrained reading of "bear" might suggest that. Conversely, it does include a right to fire those arms, since that is necessary for a well regulated militia to bear them effectively.
I think it’s fair to question why out of the 10 amendments that make up the bill of rights, only the second amendment would have a part that is non-functional and “describes the rationale”. The preposition is part of the amendment, and its existence puts a qualification on what the right to bear arms means.
I personally think the current state of affairs does a pretty good job balancing the two parts of the amendment. States are allowed to put a lot of restrictions on how you can buy guns, and where you can carry/use them, but ultimately people are allowed to have them. You aren’t allowed a nuke, you are allowed a shotgun. Exactly what level of personal firepower should be allowed for a “well regulated militia” could be a constant source for debate, but I think the balance is kept pretty well.
> it’s fair to question why out of the 10 amendments that make up the bill of rights, only the second amendment would have a part that is non-functional and “describes the rationale”.
I know this is apostasy, but because the founders weren't omniscient beings that drafted perfect documents. Rather they were politicians basically just winging it while trying to come to some consensus. Critically, they lacked an understanding of the limitation of logical systems that would only be discovered in the 20th century - the repercussions of which are with us to this day.
> Exactly what level of personal firepower should be allowed for a “well regulated militia” could be a constant source for debate, but I think the balance is kept pretty well.
From the commoner's perspective, most explosives are basically illegal even though they could be responsibly kept by anyone with a little land. So no, I don't think any balance has been achieved. For starters, anything that a domestic-facing police department is allowed to have should be fair game for the rest of the People as well.
They put the qualifier on it because they felt extremely strong that the country should not have a standing military that could be used as a tool of oppression. Instead, they felt that it should have an armed citizenry, which could form an army in the event of a war.
The restrictions that some states put on gun purchases/ownership have are quite excessive and onerous, and may end up being struck down by a SCOTUS decision coming down within the next few months.
Every able-bodied American male 17 or older and under 45 is already a member of a well-regulated militia[1]. Now you may think Congress should ask more of the militia of the United States, but being a statutory organization certainly meets the well-regulated criteria.
Private gun-owning citizens are not automatically counted among active unorganized militia.
Even in the few active state militia they would be considered eligible, not members.
SCOTUS has had contradictory decisions in the past on whether private gun rights hinge on military applications of the specific firearms, but indeed this is the talking point - state militias.
Collectively, the people who parrot "Shall Not Be Infringed" are really trying to avoid the militia debate entirely.
There is a very long history of jurisprudence over the past 2+ centuries that has done a pretty good job of defining what "unreasonable" means, and there are tons and tons of SCOTUS cases that have dealt with that. The basics, though, nearly always involve a judge reviewing the evidence to determine if a crime is probable, and issuing a warrant in that case.
The fact that civil forfeiture is so contrary to all the other definitions of "reasonable" that courts have emphasized over the years should make it a clear violation of the Constitution.
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable … seizures, shall not be violated, … but upon probable cause, supported by Oath or affirmation, and particularly describing the … things to be seized.
From the article:
> In a response to an interrogatory filed in the Kozbials' subsequent lawsuit against Highland Park, a city police officer answered "none" when asked to identify any predicate felony offenses justifying the seizure.
What was the probable cause supported by oath or affirmation?
One test the law likes for reasonableness is to ask a jury.
We presume the jury are reasonable people (unfortunately the US also screws up how juries work) and so if they have a consensus that must be reasonable.
The UK uses "double reasonableness" in it's anti-tax avoidance law. It says the jury should ask themselves if any reasonable person might have done this anyway. If your jurors can't conceive of how even one other reasonable person could think what you did made sense, except that it reduced tax liability, then in fact it did not reduce liability, your avoidance scheme doesn't work.
The broader question isn’t whether a specific action is reasonable in context, but whether civil asset forfeiture is constitutional. So it’s a question of law for the courts to decide, not a question of fact for a jury to decide.
There is no clear answer to the question of reasonableness/unreasonableness, but civil asset forfeiture as used today is *far* into unreasonable territory.
reasonable here could easily be aligned with, you know, having due process.
The constitution describes people's property and makes people subject to it. Suing a car or a pile of cash is farcical - because the constitution doesn't have authority over objects, it has authority over the people who own and possess the objects.
Its the same basic factual explanation as to the difference between two consenting adults and adults and children/animals that seems to befuddle those who don't like gay rights.
> because the constitution doesn't have authority over objects
First, the overwhelming majority of civil forfeiture happens in states, where a mere claim of the constitution not explicitly giving the federal government authority doesn't hold water (or invoke the incorporation doctrine).
Second, Federal courts have long exercised authority over objects and courts having authority over objects is something that is broadly considered constitutional.
> Suing a car or a pile of cash is farcical
It may seem farcical, but it has a decent legal basis and a reasonable reason for existance: there are times that property seems to A) be involved in crime, and B) unclaimed by owners. E.g. distant shipowners engaged in smuggling. It seems reasonable for the government to seize the property in these cases.
It's much more problematic when a clear owner can be identified (or, when an owner comes forward after seizure). I agree in those circumstances action should be brought against the people, and should require a higher standard than the preponderance of the evidence, for property to be kept.
> Its the same basic factual explanation as to the difference between two consenting adults and adults and children/animals that seems to befuddle those who don't like gay rights.
I'm not sure how long it has been this way, but "innocent until proven guilty" isn't true in most of the country. If you are arrested, you will spend at least a day in jail if you can make bail. If not, you will spend weeks or months in jail prior to your first hearing. Often, that hearing will just be to setup another hearing, months down the line. So, you could be in jail a very long time without ever having a hearing at all, and without the state proving your guilt.
Even if you are rich and innocent and lucky, then you will spend a day in jail, and spend thousands on bail and lawyers, and if found innocent you will still have all of it on your record, lost all of that money, a day of your life, the abuse of the police officer and jailors, and there are many situations where answering "yes" to "have you ever been arrested" will disqualify you.
So, yeah, innocent until proven guilty is not a thing in the US. I fear that people might read this and think it's hyberbole, or that I'm part of some right-wing conspiracy theorist thing. It's not, I'm not. If you know a LEO, ask them. A LEO in the US is judge, jury and executioner, and they are quite happy for this to be the case. It means they get to do whatever they want. It is remarkable that Chauvin got convicted for murdering George Floyd on camera! That's why I think the BLM protests aren't quite right - should be CLM, civilians lives matter, because it's not about race, it's about giving low-to-average intelligence people absolute power over everyone around them.
I've been to jail for awhile, it really is like this. On top of that, you are told almost nothing about how to make bail, what's going on, etc, and also congratulations, now everyone looks down on you even if you are proven innocent, especially the people inside the system (judges, lawyers, etc.)
Indeed. "Well, I would never have been so stupid as to get arrested!" is the attitude. It's a hueristic based on false assumptions about the system set mainly by the media, which is entirely, supremely false. It would be amazing for a story, any story, to take place in a realistic justice system where the meat grinder is on glorious display. (Public defenders would be good people to interview on this; maybe some ex-LEOs disenchanted with the system)
> Even if you are rich and innocent and lucky, then you will spend a day in jail, and spend thousands on bail and lawyers, and if found innocent you will still have all of it on your record, lost all of that money
Not quite.
If rich you get all your bail money back. If poor you do a bail bond and dont get the deposit for the bond back. Or cant even afford that and stay in jail. (The effects compound because its often not the first time)
If rich, an arrest record means nothing. If rich enough, an indictment or being found guilty means nothing because you don't need employment.
And thats before we talk about fighting the case. Or making the investigation harder.
Its a completely parallel society because the consequences are so different.
That is not true. In most places you are NOT ALLOWED to post cash bail, you have to get a bond because it has the effect of outsourcing police-work. No, I'm not joking.
> Even if you are rich and innocent and lucky, then you will spend a day in jail, and spend thousands on bail and lawyers, and if found innocent you will still have all of it on your record, lost all of that money, a day of your life, the abuse of the police officer and jailors, and there are many situations where answering "yes" to "have you ever been arrested" will disqualify you.
If you have your arrest records expunged you are expected to answer "no" to the "have you ever been arrested" question when asked by an employer or potential employer. It's a stupid system. In at least a few states, they're not even supposed to ask, because it's such a dumb question.
I've long had an idea for solving the civil asset forfeiture problem.
It's simply this: any asset seized must go to the general fund, not into a law enforcement fund.
If a local police department seizes cash or a car, that asset goes to the state. If federal law enforcement does the same, it goes to the treasury, not the FBI or ATF or the Justice Department.
This small change would remove the incentive to seize assets for any reason other than stopping criminals.
We also need due-process reforms, but this would be a good start. Government departments should never profit from criminal activity.
Or go a step farther: any asset seized (including money) must be publicly destroyed. Set fire to the defendant's pile of cash in the town square, while everyone watches.
This would remove the financial incentive for seizure and would preserve its punitive aspect, both general and specific deterrence. As a check against wanton destruction, the seizing entity should remain subject to a civil cause of action of conversion (in regular language, liable for taking stuff) in case the defendant (or now plaintiff) can prove that the seizure didn't follow due process, or that the underlying justification for seizure in the first place was unfounded.
Obviously, this suggestion isn't fully baked. But it's worth considering why anyone should benefit from punitive measures such as asset seizure (or punitive damages in a civil lawsuit).
This seems worse. At least today I have a small chance of getting my item returned.
The reality is, just don't sieze. It sieze AFTER the trial and conviction.
In this scenario, the circumstances that would lead to burning a Rembrandt would be quite extreme. The convicted criminal would have to use the Rembrandt in crime and the punishment would have to be a fine in excess of the value of the Rembrandt.
But besides that: Just because it would be a "shame," doesn't mean it shouldn't be done. After all, some people think it would be fun to burn a Rembrandt.
I had the same thought. Some police have punished citizens for petty reasons and that door is still wide open in this solution. It's still better than what we have now, but it's not perfect.
Perhaps an additional measure could be that a jury of the people should decide if the property is returned to the person or if it goes to the state/treasury. Most people seem to think civil forfeiture is problematic.
Yeah, I had the same idea. Someone else pointed out to me how easy it would be for a kick back system to be arranged, with the police stealing money for the general find and being rewarded in return with larger budgets or other tit for tat arrangements. So I changed my mind.
No police that have been a part of any instances of civil forfeiture can possibly be reformed to a point where they should be allowed to hold any position of power whatsoever. This email is a nice smoking gun but every instance of this is the same exact mafia style violence against civilians even if they don’t admit to it in writing each time.
Civil asset forfeiture laws are just begging to be abused. While I understand the original intent, there needs to be greater consequences to those abusing it.
edit I'm not sure of the best way to improve or change this, so would love to hear from others on the best way to make that change possible.
The immediate first thing that should be done is that police departments should have no way of benefiting from the seized cash or assets because it creates a perverse incentive across the board for everyone in the police department to overlook transgressions. It should be held by the county/state and the interest accrued till a judge decides. If it's forfeited, it should go into the county or state public benefits program that only benefits the poorest of the poor, seniors and homeless people.
There is actually proof that this works. Using Felony Probation and Parole in a particular state as an example, at one point it went to the department that ran Probation/Parole. So the Probation/Parole Officers were encouraged to aggressively pursue getting the fees for probation/parole. Then it was changed to go to the states general fund (so the department stopped getting it effectively). MAGICALLY the officers only got encouraged to care about restitution payments and started being very blaise about failure to pay fines and fees.
The obvious thing to happen next cycle from instituting such rules: the benefits program's dedicated budget gets adjusted down by the expected value of forfeitures.
Maybe instead any money collected civil asset forfeiture should be required to be sent to the Federal Reserve where it is destroyed. That should prevent any of these sorts of perverse incentives.
For money that could work. For other assets (e.g. art, anything that has an environmental cost to create it) society may benefit from them being preserved. I guess you could still auction them off and burn the money.
It just shouldn't exist. A judge can impose such penalties upon conviction, but there shouldn't be a way for police to seize assets like this themselves.
Civil asset forfeiture makes a little bit of sense where it was first used: dealing with the cargo of smuggler's ships. It was almost impossible to prosecute a ship owner who lived across the ocean in Europe, so simply seizing a ship and its smuggled goods was a viable alternative.
Unfortunately it's expanded to all sorts of ridiculous and blatantly unconstitutional seizures in the last few decades.
> It was almost impossible to prosecute a ship owner who lived across the ocean in Europe, so simply seizing a ship and its smuggled goods was a viable alternative.
Such seizures should have the same procedural limitations as arrest of an individual does. Individual procedural limitations:
- Police can arrest you and throw you in jail if they have reason to suspect you committed a crime.
- Within a certain number of days of being thrown in jail, they have to either produce concrete charges against you, or let you go
- While the trial is going on, you can apply for bail to get your freedom.
- You can't finally be thrown in prison until you've been convicted by a jury of peers.
You could apply parallel standards in this situation:
- Police / coast guard could seize a ship if they have reason to believe it's smuggled goods
- Within a certain number of days, they have to either produce concrete charges against the owner, or let them have your stuff back.
- While the trial is going on, the owner should be able to apply for "bail" to get their stuff back. A judge can determine if it's worth the risk or not, just as they do for prison cases
- The stuff can't be finally taken away until the owner has been convicted by a jury of peers.
Adding in something like, "All seized goods are distributed to the poor" or something rather than "All seized goods go to the department which seized them" would go a long way towards ending this sort of abuse.
This doesn't seem to be responsive to the point made by the GP: if the owner is in another country, perhaps one that doesn't have extradition to the U.S., then there's not going to be a trial. The U.S. doesn't have in absentia trials except in extraordinary circumstances like a defendant fleeing the country mid-trial.
Looking briefly through the "habeas corpus" stuff, it looks like the way it technically works is this:
- Police arrest you
- You can request a Writ of Habeas Corpus
- The judge then issues the Writ
- The police either have to accuse you of a crime or let you go.
You could do the same thing wrt the stolen goods:
- Police sieze contraband
- Owner requests Writ of Habeas Stuffus
- etc
In the case of an owner in another country and is pretty sure they'll get arrested if they show up to claim their stuff, then they'll choose to leave the stuff where it is rather than apply for a writ. After a year, the police could consider it forfeit by default.
I think gwd's point is, the "thing" wouldn't be the subject of a case. It would be siezed as evidence of a crime, with the subject of the case being the John Doe owner. If the owner is identified/comes forward, they must be charged with the crime. If not convicted, their property is returned. If no owner is found after some period (say, a year or more), the "thing" is considered abandoned property. Basically, eliminating "in rem".
The thing about civil forfeiture is it's not about contraband; the property is usually perfectly legal in itself, however, there is an alleged criminal nexus.
The situations it's intended to address are things like this:
Bob meets regularly with known members of Mexican drug cartels, but doesn't actually seem to be involved with the illegal sale of drugs. Bob files his taxes every year and makes a modest income. However, every day, Bob drives over the border at El Paso in his car with a million dollars of cash in a briefcase.
If the DEA stops Bob, he asserts that the cash is his. Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob?
A lot of reasonable people think the answer to that is "yes"; but it is apparently hard to create a mechanism that doesn't also result in the police confiscating your car because your friend that's riding with you has $500 of cash, a bunch of empty baggies in his pocket, and prior drug dealing conviction.
> If the DEA stops Bob, he asserts that the cash is his. Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob?
Obvious to who?
If it's so obvious then charge Bob. If it's not then no confiscation.
Why do we want some weird half conviction? And if do you want that then do a plea deal.
> Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob? A lot of reasonable people think the answer to that is "yes";
No, those people are absolutely not reasonable! Those people want a magic world where we have crystal balls that tell us exactly who's innocent and guilty. That would certainly be nice, but that's not the world we live in.
It's frustrating when the guilty go free because of the rules we have in place to protect the innocent; but those rules didn't come out of nowhere. They are the result of the hard-won experience of thousands of innocent people being punished. If you remove them then innocent people will be punished again.
No, there shouldn't be, because if you haven't convicted Bob of a crime it's not "obvious profits of crime". It could be perfectly legitimate and you haven't proved otherwise. You can certainly seize the cash as possible evidence of a crime, but if you don't charge Bob then you've got no justification to penalize him by keeping the cash, and it should go back to him.
I was attempting to describe a situation where, if the law permitted it, you could bring in a jury and let a prosecutor make the case that Bob's briefcase constitutes the proceeds of crime, and have a solid chance of success at the "beyond a reasonable doubt" standard of proof which is required for a conviction.
But you can't prosecute a briefcase full of cash; and Bob's actions are not in themselves criminal. Without some kind of asset forfeiture system, nothing can be done.
There's a pretty reasonable public policy argument that this is not an acceptable situation.
I don't think I'm missing anything. You want to be able to claim the briefcase as proceeds of a crime, without actually prosecuting a crime. That is unreasonable. If, as you say, "Bob's actions are not in themselves criminal", you've got no justification to take his stuff. You may think it's proceeds of a crime, and you can treat it as evidence of a possible crime. But if you haven't got enough evidence to convict Bob, then you also don't have enough evidence to keep his stuff. Pretending otherwise is a mockery of justice.
> you could bring in a jury and let a prosecutor make the case that Bob's briefcase constitutes the proceeds of crime ... But ... Bob's actions are not in themselves criminal.
So you're saying:
* You have evidence enough to prove beyond a reasonable doubt that Alice, the owner of the cash, has committed a crime, and that this cash is the result of that crime
* Bob himself hasn't done any crimes at all.
We can't prosecute Alice because she's in Mexico; and we can't prosecute Bob, because he hasn't done anything wrong.
Well then, seize the cash, and let Alice come for it. If Bob claims it's his and applies for a writ, show the evidence to the judge that Bob isn't actually the owner. If Alice applies for the writ, present your case against her. If she doesn't come for it after a year, treat it as abandoned property. Everybody gets due process.
If you don't have enough evidence to prove that Bob isn't the owner, you don't have enough evidence to convict Alice of a crime, and therefore it's a violation of human rights to take her money.
What you're describing is functionally exactly the same as civil forfeiture that everyone is complaining about!
Civil forfeiture works fine for this case, which is the whole point, because indeed neither will Bob be able to demonstrate it's really his, nor will Alice be arriving to collect.
Where it all goes wrong in other cases is "Bob claim it's his and applies for a writ". i.e. it becomes Bob's responsibility to prove his ownership in court, rather than the government's job to prove anything at all.
i.e. the government performs an administrative seizure without any proof obligation, and then reverses the burden of proof onto the person from whom the assets were seized
In the real world, for small-time asset forfeiture, the amount involved is too small to be worth the effort; or Bob often doesn't have the money for a lawyer to bring that action; or this all happens while he's traveling away from home, so the court appearances are going to involve air fare, time off work etc. Or Bob is presented with the problem of proving something that is difficult to evidence, like "I have been saving this shoebox full of cash in the closet for a long time for my daughter's quinceañera"[1].
Ultimately, yes, due process is available but it's not free, it's not low-friction, and it's many a time not worth it.
> Where it all goes wrong in other cases is "Bob claim it's his and applies for a writ". i.e. it becomes Bob's responsibility to prove his ownership in court, rather than the government's job to prove anything at all.
I said at least twice that it's the government's job to prove that it's Alice's and not Bob's.
You proposed a hypothetical scenario where there is plenty of evidence to prove beyond a reasonable doubt that this cash was the result of a crime by Alice. So, when Bob comes and claims the cash is his, present that evidence. It's not a matter of Bob proving that it's his; it's a matter of Bob proving that this "beyond reasonable doubt" evidence you have of Alice's crime is bogus.
We're getting really into the weeds here; I'd expect a lot of the precedents to be established by a series of cases. But I would think that a reasonable starting point would be that possession implies ownership by default; and that if the government wants to prove that the money that was in Bob's possession is not Bob's, then the burden of proof is on the government to prove that. In your hypothetical scenario, there is plenty of evidence that the money is not in fact Bob's, so it's not an issue.
If it turns out the evidence that the money is really Alice's drug money is actually pretty thin, that's a reason Bob should get the money back.
> Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob?
Absolutely-fucking-not.
Law enforcement should never be able to seize property without the charging of a crime when they know who owns the property.
Where courts make a "thing" rather than a "person" the subject of a case, this is called "in rem" (which is Latin for "against a thing").
The legal theory which underlies civil forfeiture is "in rem jurisdiction" where it's not the owner, but rather the property, which is the defendant in the case. If the case is at a Federal level, then it will be something like "United States of America vs. $50,000 in United States currency".
The standard of proof is not at the criminal standard ("beyond a reasonable doubt") but instead the civil standard ("preponderance of evidence").
Right, so the sibling reply was correct. The person I was replying to said that the "problem" they were trying to solve when they invented the practice in the 1800's was things like seizing smuggled goods off a ship, where the owner is overseas and you don't have an extradition treaty with them.
So, seize the goods in anticipation of convicting the owner. Make a law that says the owner can apply for a writ, and a case must be made. If the owner doesn't show up, then the goods are abandoned property. That allows the case described to be prosecuted, while not opening up the insane abuses we've all heard so much about.
The goods should be stored until the owner comes to claim it in person. If the person has committed a crime that the police feel there is enough evidence to arrest them for they can arrest them at that time. If the goods are left and unclaimed for a period of time (30 days? 60 days? 6 months) then the goods can be considered abandoned the dealt with accordingly. However, if someone is present with the goods and claims to be the owner (and the police don't have evidence contrary to that) then the goods should continue on with the current claimed owner.
> It was almost impossible to prosecute a ship owner who lived across the ocean in Europe, so simply seizing a ship and its smuggled goods was a viable alternative.
why not? prosecute them normally, if they show up then the trial proceeds as usual, if not then convict them in absentia and then forfeit the goods. why does this require a whole new system that bypasses all the constitutional rights for domestic citizens?
Because the US does not do "in absentia" trials. It's why Snowden has never been convicted; he fled before he could be charged. And now that he's gone, the US can't do anything if Russia won't extradite him.
In absentia criminal trials are almost unheard of in the U.S. as a result of the due process requirements in the Fifth, Sixth and Fourteenth Amendments.
The only legal way to stop abuse of authority is if those with a higher level of authority put the abusers in handcuffs. So in this case the state prosecutors need to go after the town officials. If the abuse is at the state level then the FBI needs to come in and start arresting people. Otherwise, why would they stop?
Local authorities work with Feds to do this, however. Civil asset forfeiture has been banned in various localities, but is still legal federally - so non-federal police arrange to have a Federal officer (DEA etc) on hand to take care of that part, and then a certain percentage is kept by the federal government and the rest given to the local authorities. So first it would need to be banned federally.
It's a good thought exercise for the "trust the experts" crowd. Reading the text of the constitution, a document designed to be understood by the people it would apply to, makes this a clear and obvious violation yet our appointed legal experts apparently don't see anything wrong.
The constitution is contradictory. It isn't a perfect document written on a stone tablet by god.
And legal systems of any nation are more than just the constitution.
So the idea that you can just read one clause in the constitution and therefore clearly know what is allowed and isn't (also, even the interpretation of that clause is not as easy as you are portraying here) is absolutely false.
> And legal systems of any nation are more than just the constitution.
In any case when a legal system clashes with the wording of the constitution it is that legal system that is wrong. That's what "highest law in the land" means. That is the entire purpose of having a constitution.
Experts love to hide behind "it's complicated!" but in this case they have nowhere to hide.
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Pull over a guy, take the paper cash out of his wallet without charging him with a crime. No amount of wordplay can make that constitutional in a reasonable persons mind.
I do think CAF as it's currently implemented is unconstitutional, but this clause doesn't make CAF as an idea unconstitutional. The entire point (originally) was to secure assets that you have probable cause to believe are funding or proceeds from crime. So you find someone with a trash bag full of pills and $300k in cash in their trunk after a legal search, you need a process to handle that money.
That process has existed since before America has, find probable cause someone is committing a crime, detain the suspect (you can get a warrant first but this is more common), get a warrant (can be done over the phone in a couple of minutes), put the cash away somewhere safe until the trial is over. If they are guilty of that crime and that cash was involved, great! If not you have to return it.
What we are talking about here is just taking the cash, sending you on your way and spending it, sidestepping your legal rights like access to a court provided attorney or a jury trial. It probably doesn't do much to prevent crime even, the fentanyl runners would much prefer you just take the cash they have on them and let them go.
But the way it works today is the "probable cause"is the fact the money is over 10k. No charges end up being filled, or they end up being dropped. But they don't give you the assets back. Even after proving they are legitimate. You still have to fight for it.
As an idea civil asset forfeiture is unconstitutional. Because it was designed to be an end around the constitution.
When interpretations of the meaning of the Constitution differ the one last held by the Supreme Court has the (current) final say. The constitution is by necessity an interpretive document because we don't have a Constitutional Oracle to perfectly map concepts and words for centuries back onto the technological landscape of today.
"Shall not be infringed" is a super common refrain among the 2A crowd but taken hyper literally you couldn't take guns away from criminals actively in prison.
I think civil forfeiture is far outside the bounds of what could be condoned under the Bill of Rights but my interpretation only matters at a distance of influencing representatives to pass laws or the SC to rule differently.
Libel law disagrees with the Constitution by a literal reading. So does banning human sacrifice in religious services. We still treat them as legitimate.
The same document talks about the "Blessings of Liberty" while establishing slaves as 3/5 of a person for Congressional representation?
It's a little hard to reconcile slavery with, say, the Fifth Amendment's prohibition on being "deprived of life, liberty, or property, without due process of law".
> slaves as 3/5 of a person for Congressional representation
You would've granted slave owners more votes? You feel they were under represented? If I lived in a state alone with a enough slaves I should have been able to dictate policy for the entire nation?
I think their concern was more the official endorsement of the practice of treating humans as private property, in contrast with a number of amendments providing individual rights (aforementioned property excluded).
I'd count them negatively personally but the grade school arugment made there has to die, the people who wrote that did so with the hopes of abolishing slavery in the future. It's exactly the opposite of how it is framed.
That's really rich coming from a proponent of federal authority/power.
The alternative here was the articles of confederation or nothing and the states go their own ways as countries, not some fantasy in which the southern states torpedoed their own economies out of some love of the nation.
The constitution and the included 3/5ths compromise most certainly brought about the end of slavery much faster than taking a hard line circa 1790, or anything else that tipped the scales away from the united states forming a national identity would have.
The original was contradictory, it was the result of a political compromise. The current version is not - not legally anyway. Three new amendments to the constitution made the earlier contradictions about slavery a dead letter of no legal effect.
That is what amendments do - they change things, and those ones came at no small price. So what is the point about complaining about a problem that six hundred thousand people already lost their lives in a successful attempt to resolve? Slavery has been illegal in this country for a century and a half.
> while establishing slaves as 3/5 of a person for Congressional representation
No argument against your point, but a similar[0] Constitutional issue persists today:
Residents of Wyoming are established as 3.23 people for Congressional representation.
Residents of California are about 4/5ths of a person.
[0] Nothing is similar to slavery, and specifically here the fact that the voting power of these 3/5ths allocations was given to people who did not represent the interests of the humans that comprised the allocations in the first place!
> > while establishing slaves as 3/5 of a person for Congressional representation
> No argument against your point, but a similar Constitutional issue persists today:
Yes, a very similar issue does exist, but the one you are pointing to is not similar.
> Residents of Wyoming are established as 3.23 people for Congressional representation.
The unequal weighting of population for representation in (in descending order of distortion) the Senate, Electoral College, and House as a whole is not really similar to the awarding of extra weight to those who are permitted by the State to vote specifically for people denied liberty as was done in the 3/5 compromise.
The fact that those disenfranchised by felony disqualification are counted—and as whole persons, not 3/5—especially given the way targeted criminalization and penal servitude directly replaced chattel slavery, is, OTOH, a very similar issue.
I believe you're expanding on my footnote, and I agree.
In addition to felons (permanently disenfranchised in most states), you have temporarily-disenfranchised prisoners, and prison-based population distortions that favor some districts over others.
You could probably make an even greater comparison between the voting powers of:
- a Californian living in a district with high noncitizen population
- a Wyomingian living in a district with a large penitentiary
> Civil forfeiture allows police to seize — and then keep or sell — any property they allege is involved in a crime. Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.
--[1]
They don't need to prove or even charge you to take property from you. It's robbery.
The law needs to require a warrant issued by a judge to sieze the property. The property siezed needs to be stored as evidence, kept separate from other budget items in law enforcement organizations so that it cannot be used to cover expenditures (through auction or otherwise), be under the same sort of provisions as indefinitely holding individuals without charges, be returned in total when charges are not brought to trial or when a trial results in an acquittal, and the material should be subject to destruction after a guilty verdict and appeals are exhausted. Basically, the siezing organization shouldn't be able to use the material proceeds as part of the organizations' operating budgets at any time unless the material is voluntarily submitted by the convicted parties in lieu of levied fines after a conviction. It is evidence, not a funding source.
I'm not saying that the government should not be able to take illegitimately gained property from convicted criminals; but that the incentive to do so for material gains by the government without conviction is rife with the potential for abuse as things currently stand.
Seems a simple way would be that people who have assets seized should get the greater of a) $20k OR b) 3x the value of items seized AND c) attorneys fees
At least this allows 1) people to litigate smaller seizures 2) creates disincentives for the more abusive cases
As it should be if the public wants the assets sized.
Someone should have to pay for the collateral policy damage. It seems that the burden should to those who voted for the policy opposed the innocent victims.
Local governments simply cannot be trusted to dole out any punishment that they benefit from financially. We need to fund our courts from taxes, and require punitive fines to be payed by destroying the money instead of by the prosecutor pocketing it.
The original intent was to stop drug dealers without having enough to convict.
It is difficult for dealers to deal if they lose their car or boat or money. And apparently it is "obvious"the items came from ill gotten gains.
The government just passed a computer fraud act where they differentiate between good faith use of the term "security researcher" and bad faith. I think we can do the same with civil asset forfeiture, making the penalties immense.
There's always the route of undoing civil asset forfeiture entirely, because it makes zero sense to anyone that encounters it or to our justice system.
This is also a good time to point out: when states and the federal government disagree, without mandate for state agencies to follow state law (weed is legal in Michigan) this is the result. The citizens are who pay the price for disagreement, and that mechanic especially needs to change.
Edit:
Fair, they passed "guidance". I'd encourage anything at this point. Doing nothing is for the birds.
They can use discretion on civil asset forfeiture too, if they want. Something would be better than the current approach, which is feeling more cartel-esque by the year.
Nihilist and fatalist approaches like yours make the outcome certain. If I show up, speak like a big boy, and provide evidence someone might listen. This is the difference.
It's not quite as simple as "they can use discretion", because there is no single "they". There's a boatload of states and the federal government, and states have sovereign power on these topics, and states that have outlawed the practice have collaborated with the federal government through "equitable sharing" practices.
But this is literally the first time in this thread that you've mentioned "oversight." Perhaps you're advocating that something be done, but I cannot tell what it is.
It seems like you've been suggesting just that "the relevant authorities should use their discretion." That doesn't strike me (or, apparently, others) as much of a reform, since that exactly describes the status quo, which does not seem to be working.
What is the role for oversight that you're suggesting? Who does the overseeing? How?
excuse me; i commented on the legislature's allergic reaction to actually making changes to the law in this area, noting the difficulty of the task which you have chosen.
> This is also a good time to point out: when states and the federal government disagree, without mandate for state agencies to follow state law (weed is legal in Michigan) this is the result.
Marijuana had nothing to do with this. The police needed a pretense for the civil asset forfeiture, but nothing under the law even requires that the pretense be true, there are no consequences for just lying about it, etc.
People really need to get familiar with civil asset forfeiture. It's done to all sorts of people for all sorts of make-believe reasons by police.
I suppose “write your representatives”? This is an area with reforms actively being proposed, and it feels like banning this stuff is inside the Overton Window.
The police willing to commit this crime under color of law are so incurably corrupt that changing the law wouldn’t stop them. They will still take your stuff, they just won’t give you a receipt.
Police in California siezed an armored car after laws being passed that explicitly made this illegal. It being legal makes it easier for them, but they don't stop at what is legal.
Maybe a dumb question, but how do the police seize a building? Assuming this just means they barred, under threat of arrest, the owners from using the property?
When the police do anything it is ultimately an exercise of raw force. They come, evict you, and change the locks. The only question is do they have legal justification for their actions that will stand up in court? Warrants, judicial sanction, etc. in advance is highly advisable. This is why we are taking your property, go hire an attorney if you disagree.
Not excusing the extortion here, but if you run a high-profit gray-area business, it can be a good idea to butter up the local cops.
There are many ways to do so legally, from equipment donations to contributing to the sheriff’s reelection campaign. For 0.1% of profits you can get them on your side in some situations that might come up:
- you get burgled
- federal law enforcement takes an interest in your industry and asks “who should we look at in your jurisdiction?”
- you need a flexible interpretation of local zoning or fire codes to run your operation, especially if cranky neighbors might complain about noise or smell.
Start with small contributions proactively before they make trouble.
You're normalizing corruption here. Specifically, recommending bribery. That can land you in more hot water than whatever "gray-area" business you're running.
Not if you make sure all of the bribes are legal, or else lobbying wouldn't be an entire industry.
edit: In Illinois, at least, for it to be bribery there needs to be proof of an explicit quid quo pro e.g. a recording of you saying "If you give me X, I will do Y."
Note that "I'm going to give you X," "What a coincidence, I'm going to do Y" does not count.
Also, holding a Concealed Carry license automatically gets the cops to like you. Show it when you're stopped (and tell them that you're not carrying unless you are)...
Very little about the War on Drugs was/is legal let alone moral. But just like "Torture" was gifted a pass during the Bush years, we ignored the reality of the "War on Drugs" in order to pacify the most frightened and ignorant among us... Oh and enrich the makers of fear, weapons and armory.
Sorry if I'm being repetitive ^^^, but seeing the impact of civil forfeiture first-hand really shook me. I still get angry, and it took place 30 years ago!
I'd bet a lot of money that someone related to, friends with, or owed a big favor by, one of the officials that would have had to sign off on this is deeply involved in the local weed industry.
Between the insane capital required and level of asinine compliance stuff and box checking you need to do to get into the legal weed industry more or less precludes those people from being "easy targets". Your local dirt mover is going far less likely to be able show up in court with a "and that's exactly where each dollar bill came from" accounting than your local weed grower.
I would imagine it is worth registering a holding company that would ultimately own the property, and then another LLC that is responsible for renting and maintenance... and then just rent it to yourself.
I don't know if this would make it more difficult for a seizure to occur but it seems that it would since the physical person is no longer the "owner" or even responsible for operating.
If the assets are worth any significant amount, it's worth protecting them and yourself from the law... as crazy as it sounds.
In this case it wouldn’t matter as the city would just seize it from the llc. They never charged anyone with a crime so they could just not charge the owners of the llc.
Police showed to my uncle’s cellphone store. Said their daughter’s IPhone was broken and left a note to an address of a different cellphone shop.
You’re expected to go to that shop, buy the phone in the name of his daughter. They probably won’t actually collect the phone. They will return it for cash.
If you don’t comply, the police will invite your customers to go for a ride around the block.
There's been a lot of outside money invested into legal marijuana businesses in Detroit, particularly along 8 mile road (brand recognition). It's an otherwise poor area, so I could see local police trying to get a taste from these new profitable businesses. They're not going after typical local businesses with tight margins and a neighborhood customer base.
The first time I learned about such a thing I was floored. I couldn’t fathom how that could be legal and how this didn’t get struck down as illegal by the courts. I am real curious to know if this went to courts and corraborted there.
Reminds me of the ATF issuing Leathermans with "ATF Always Think Forfeiture" engraved on them.
Any forfeiture, or any supposed necessary violation of individual rights, should require investigation, and should cost the organization behind it, regardless of outcome. This may seem difficult to work, but incentivizing the opposite is completely absurd, and makes corruption inevitable.
You're right, but I think the mentality around marijuana legality is colored by the fact that marijuana remains illegal federally, marijuana legality is so new in many places, and marijuana isn't fully unrestricted even when "legalized". This page has a bunch of tables regarding the legality of recreational marijuana in Michigan: https://www.clickondetroit.com/news/michigan/2022/05/19/a-gu...
So while I don't think they should have done what they did, I'm not shocked that cops walked into a building full of marijuana plants and thought "we have to bust these guys". I think if marijuana became completely legal and unrestricted nationwide, cops would probably get it - "welp, I guess this is legal now".
Civil asset forfeiture is just theft, and the police who engage in this behavior are happy to steal from all sorts of people engaged in all sorts of perfectly legal activities. It has literally nothing to do with marijuana.
I would love to hear any alternatives from the city on this one, but we won't. It's hard to conclude for certain that they were wrong (IE they didn't actually believe a large scale illegal operation was being operated), although I do agree most of the presented evidence (which includes an email, in my mind the absolute most damning part of the evidence) suggests that the city (not the police) were conducting a shakedown.
> being promoted by Reason, which has a poor reputation for bias in reporting
They're a LIBERTARIAN magazine, it says "free minds and free markets" right on the mast head. They're 100% up front about their view of the world. What do you really expect?
This is like complaining that Jacobin is written by a bunch of socialists.
> This is like complaining that Jacobin is written by a bunch of socialists.
No, it's like suspecting that an article might be distorted to serve socialist ideological interests when Jacobin is the only source. Which is, of course, what any sane person would do, even if they share the outlet’s ideological orientation.
It just isn't a very interesting critique in and of itself. If the OP was pointing out how their ideological outlook influenced the facts presented in the story, or how they left some complicating factor out, then it would be useful. However C.J. Ciaramella, the author of the piece has a long history and good track record of reporting on police misconduct, and civil rights abuses. Moreover the article is covering reporting originally done by WXYZ Detroit, so it not even originally from Reason, they just picked it up for their audience.
My overarching point is that unless you can point to the ideology of the publication negatively influencing the reporting it's just lazy and useless criticism.
Get most non-US corporations to ban American customers with little or no heads up, across all their SaaS, domains, bank accounts and when they complain here on HN, tell them "you don't have it that bad, it's war" etc.
Civil forfeiture is a direct and obvious violation of the US Constitution and shouldn't even exist under the USA legal system and is dangerous to the US legal system:
"Article the sixth... The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Police under the US Constitution have to go before a judge and court and make an Oath under perjury of law describing the items to be seized. There has to be a justification and supported by affirmation meaning evidence and supporting facts. In the case of the building that was seized it was operating a perfectly legal business under state law. It had the necessary licenses and permits. There needs to be a direct challenge against this type of extra-judicial seizure in the US Supreme Court as it's a clear challenge to the entire operation of the rule of law and legal system.
The workaround under which civil asset forfeiture operates is that they're not charging the property owner - or the property holder - with anything. They're bringing a civil case against the property itself (jurisdiction in rem). The property itself is the defendant. [1, 2]
Which leads to some pretty hilarious case titles:
"United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls"
[edit] "South Dakota v. Fifteen Impounded Cats"
[edit] "United States v. One Solid Gold Object in Form of a Rooster"
In my opinion this tactic should be illegal.
[edit] As far as I know this only really exists in the US, and in Canadian admiralty law (so, only in the US).
[1] https://home.treasury.gov/policy-issues/terrorism-and-illici...
[2] https://en.wikipedia.org/wiki/In_rem_jurisdiction
It obviously should be illegal, it's a legal shenanigan on tier with "your honor I didn't assault that man, I was simply swinging my fists and his face got in the way"
It's every bit as dumb as "sovereign citizens" trying to argue that they aren't subject to traffic laws because of a centuries old maritime treaty. Unfortunately, it's the people in charge slinging the dumb argument, so it flies.
What’s weird is that American higher courts are often quite good at eviscerating this kind of nonsense, usually by pointing out that such a “workaround” would make the constitutional amendment toothless, and it was not meant to be toothless, so the workaround is bunk.
That civil asset forfeiture has survived is simply because the courts are gutless about it.
Huh?
There is a very long and plainly wrong string of Supreme Court decisions which stretches all the way back to the nation's founding. The courts are very good at precisely the opposite thing that you're describing.
I think most people kind of assume that the courts are this sort of shining beacon of enlightened liberal thought: they occasionally seem to have "duds" -- but those are intelligent and well reasoned duds. They're interpreting the constitution in a way some don't like, sure, but still upholding it nonetheless, right?
I mean, this thread here about civil asset forfeiture is a great example. If you ask any non-lawyer brained person whether it's wrong, they'll say, yeah, of course it's illegal for the government to just steal your shit. Why is this even a question?
Oh, but no, you see, the courts have wisely decided, using an argument that you might hear from a 5-year-old ("actually, this piece of property is actually a mystical ghost that we can treat as a people!"), that stealing your shit is, in fact, legal.
I really encourage anyone curious about this powerful and unaccountable institution to read some of the shittier Supreme Court decisions. They are often, simply put, stupid. Like, a regular non-lawyer person can read them and handily "eviscerate" their arguments.
My favorite, idiotic decision from a higher court this year was the judge that argued in her opinion that the federal government's legal authority to protect the public from infectious disease did not extend to mask requirements because the law says they can require sanitation, but wearing a mask doesn't "sanitize" anything.
Ignoring the fact that the point of a mask is to "sanitize" the germ filled air coming out of or into your mouth, the same law says "or other measures" as needed to protect the public.
It was such poor logic, especially considering the context of the original law at the time (fighting tuberculosis) and the potentially damaging aftermath of such a precedent (not hard to imagine a future, more deadly virus that some politicians decides is a political inconvenience).
Governments doing stupid shit like this only encourages "sovereign citizens" to think similar word games and semantics will work for them too. They're naive of course; they seem to think the system is a machine indifferent to class or social standing, which simply isn't the case.
Class or social standing aren't the right lens for this, I don't think Warren Buffet vs. Three Dollars would fly in court.
Warren Buffet could do it if he wanted, using his wealth to earn the favor of the right government officials. He could even buy himself a private police force to do the seizing. A real police force, licensed by the state but employed and paid by himself. This sort of thing is already a reality in America.
Anyway, my point is sovereign citizens seem to see the system as a machine, the function of which can be manipulated by giving it cleverly formulated inputs. They have a hacker mindset. They see lawyers and politicians doing this sort of thing all the time, and believe they can do the same if only they find the right incantation. It's as though somebody witnesses the Fonz hit a jukebox to make it work, then figure they can do the same trick if they hit that jukebox in the same way. Except it will never work for them, the jukebox only behaves that way for the Fonz.
Certainly some sovereign citizens see the system as a rigid machine, but many simply believe it should be and act accordingly. They are idealists, not necessarily deluded about reality or trying to hack the system (although those types definitely do exist, I won't deny that). It's almost like a way of turning your life into a demonstrative protest against the "big lie" that is the law and refusing to fall in line.
> not necessarily deluded about reality
but the reality is that law was never this, and their life of protest is led against a straw man, and it's completely ineffective in bringing reality closer to that principle.
So, we should never try to be better, because the past and present suck? Your logic is extremely cynical and self-defeating. No change would ever occur with such a mindset.
It could be argued that Buffet already has such power, as there are all kinds of weirdness around the police forces belonging to the railroad industry in which he is heavily invested through BNSF. I've never heard of him abusing this power but the potential certainly is there.
That would totally fly in the courts of e.g. Judges Kaplan or Preska.
I'm no "sovereign citizen", and occasionally enjoy compilations on youtube of them getting owned in front of a judge (makes for a good laugh).
I do however find some sympathy with _one_ of their arguments, where they argue they never consented to be governed.
I mean when I think about it, I was born into an established system that imposed its rules on me from birth. I had no say in accepting/rejecting the rules. I'm essentially property of the state, subject to its whims with little to no hope of changing them. So I get where some people come from with a "naw fuck that" attitude, even if I see such resistance as futile.
Not directly sov-citizen related, but that does intersect with a broader community of people upset over how property works in the US. Namely, you don't own a damn thing. All deeds/titles are fee-simple, in that you merely buy and sell the right to rent that land from the government for as long as you can afford it. "Renters" in the colloquial sense are really renting twice, which is why "owning" is better. True ownership of property however no longer exists in the US.
Maybe we can experiment with better society designs on mars, where landowners are truly sovereign and the state only owns the commons. Enforcement then only exists in the commons (and optionally on property with the consent of the owner).
Plato's Crito[1] deals directly with this question, after Socrates has been found guilty and sentenced to death for 'Corrupting the youth', his friends offer to help him leave the city rather than die.
To paraphrase, Socrates says "Though not explicitly, I have by my actions agreed to be ruled by the laws of Athens by carrying out my life here and not choosing to move away to somewhere with a different set of laws"
[1]http://www.columbia.edu/itc/lithum/wong/textclip.html @ [52b]
I believe Plato will say they consented to be governed by this state, not at birth, but throughout their life by choosing to stay in a place that is governed by this state and enjoying the benefits.
I think that's somewhat different because in Ancient Greece there was extreme decentralization. Cities were sovereign entities with an extreme diversity of ideological and other values. Compare Athens and Sparta, for instance. And so in this system, if one stays in a city then there is a strong argument to be made that they are implicitly supportive of the laws and rules of said area.
In modern times this isn't really the case. There tend to be immense legal restrictions on movement, let alone living + working in different areas. And the differences that do exist between even nations within the same "sphere" tend to be relatively negligible compared to, again, the sort of monumental differences you'd see just between different Greek city-states like Athens/Sparta.
> There tend to be immense legal restrictions on movement
There were extreme legal restrictions on movement in Ancient Greece, too. You couldn't just pack up your bags and move to Spara or Athens and become part of the citizen class.
And as a non-citizen, there were a lot of different ways that you could be abused by citizens, with little recourse.
Just because despotism and abuse was decentralized, doesn't mean that it wasn't despotism and abuse.
Socrates was never a citizen, nor were the vast majority of the residents of Athens in antiquity.
And how well did that turn out for him/them?
> There were extreme legal restrictions on movement in Ancient Greece, too. You couldn't just pack up your bags and move to Spara or Athens and become part of the citizen class.
Do "sovereign citizens" make to overcome those restrictions on movement? Is there any effort given?
Yes, many purposely don't have driver's license or ID.
"a place that is governed by this state"
In your belief, from what comes Plato's link between place and state? Places exist before states and often afterward. Can a state exist without place? If a place can exist without any particular state, can a person have a link to a place independent of a state?
I do not know enough to answer about that question, nor to say if Plato even makes that link honestly. I think you're arguing with my summary.
Imagine if I'd edited it to read: 'choosing to stay within the bounds of the government, and enjoying the benefits'
Sovereign citizens do enjoy the benefits of the US state, do not reject them nor make strides at moving away from them (from anything I've read).
>I mean when I think about it, I was born into an established system that imposed its rules on me from birth. I had no say in accepting/rejecting the rules. I'm essentially property of the state, subject to its whims with little to no hope of changing them.
Would you rather be born into a state of anarchy? I think Hobbes addressed this.
As a counterargument to Hobbes here is an excerpt from "The Dawn of Everything" in which Graeber and Wengrow argue that Hobbes' assertion isn't based in evidence.
https://lithub.com/the-dawn-of-everything-is-not-a-book-abou...
Most of the anthropological evidence sides with Hobbes. The rates of violence in hunter gatherer societies is massive, with 10-15% of people dying at the hands of other humans. For the 20th century, despite two world wars, this figure was about 2%
The evidence is very sparse, and what we do have suggests that modern hunter-gatherer societies are, on average, no more violent than humanity in general. (My personal if limited observation, having lived briefly with several, is that they seem to be notably less violent than the -- often frontier -- communities around them.)
Steven Pinker has muddied the water with quite a lot of nonsense in The Better Angels of our Nature. An interesting, better-sourced and less cherry-picked read is a 2013 paper in Science[0].
[0] https://www.science.org/doi/10.1126/science.1235675
The evidence is not sparse, it comes from a diverse set of sources from observation of existing hunter-gatheter communities across different continents as well as archaeological evidence. It's true that violence is much lower in absolute numbers. But by virtue of drastically lower overall populations, the proportional rate is much higher. 5 people killed our of a kin-group of 100 people is like 15 million people killed in the USA.
There is an appeal to the thought that humans in a natural state are peaceful. Because if modern society has made mankind violent, then we can hopefully roll back it's influence and restore us to that peaceful state. But that's not what our evidence suggests.
This article examines existing hunter gatherers: https://www.economist.com/christmas-specials/2007/12/19/nobl...
For a book that dives into the archaeological evidence, see War in Human Civilization by Azar Gat.
The problem with this is that all modern hunter-gatherer societies are under extreme pressure due to the theft of their lands and resources. This is particularly true in the context of the anecdotes given in the linked article, even if its characterization of today's !Kung or aboriginal peoples in Australia as being in a state of "almost constant tribal warfare" is bizarre (to put it kindly and assume good faith).
There is also an idealogical appeal by the likes of Pinker to the idea that nation states are the only structures that can prevent us from a return to a kind of endemic violence amongst hunter-gatherers. This thought has historically been exploited by those who would steal their lands, and do it "for their own good".
You might call it "doing a Chagnon" - precipitate violence, use that to characterize a people as warlike, then use that as a pretext to take even more resources.
Of course it's possible to find a hunter-gatherer society which is more violent than a particular modern nation state. It's also trivial to find an inverse example. When you look at what evidence we do have, you see that hunter-gatherers are no more or less violent than the rest of us, and when violence does flare it happens for the very same reasons it happens anywhere else.
Your point about butter gatherers being pressured by the encroachment of civilization is true. But in those situations, the rates of violent death are mostly in the 25-60% range, as was observed in many of the Native American societies during the colonial period. It's important to exclude these outliers due to the influence of encroaching civilizations. But even absent these outliers, and exclusively drawing on archaeological evidence, the rates of violence in hunter-gatheter societies is drastically higher [1].
1. https://ourworldindata.org/ethnographic-and-archaeological-e...
Therein lies the problem though. Even if we take the numbers from the linked article (whose starting point was... Steven Pinker!):
- the "ethnographic evidence", which I accept you're not defending, largely features indigenous peoples during an active genocide.
- the archaeological evidence is, naturally and obviously, extremely few and far between. Much of it doesn't relate to hunter-gatherers at all. As for the rest? Taking one at random: the 12% violent death share at Ile Téviec. Read the sources and this is extrapolated from three (3!) bodies. Two of which were apparently not violent deaths after all. The remaining body? We have no clue if the incoming arrowhead was from warfare or a hunting accident. How unfortunate if a single 6,000 year old hunting accident is labeling entire peoples violent and uncivilized. Either way, it's nonsense all the way down.
What was the historical rate of violence amongst, say, the Zo'é people? They are very isolated today and violence is apparently unheard of, but what happened in the past? We can't possibly know. What of the Awá? No hint. The Sentinelese, even? Who knows?
My point is that all of these data are so limited, so compromised and often so cherry-picked it's revealing nothing very helpful. What little we do know is that rates of violence amongst different hunter-gatherer peoples today, despite them all being under immense outside pressures, are extremely variable... as it is between all other different groups of humans. That observation doesn't sell books, though.
> the "ethnographic evidence", which I accept you're not defending, largely features indigenous peoples during an active genocide.
Incorrect. Plenty of hunter gatherer societies are highly isolated and are not experiencing active genocide or displacement. Even ignoring those outliers that are in such a situation, they still exhibit rates of violence many times greater than modern societies.
> - the archaeological evidence is, naturally and obviously, extremely few and far between. Much of it doesn't relate to hunter-gatherers at all. As for the rest? Taking one at random: the 12% violent death share at Ile Téviec. Read the sources and this is extrapolated from three (3!) bodies. Two of which were apparently not violent deaths after all. The remaining body? We have no clue if the incoming arrowhead was from warfare or a hunting accident. How unfortunate if a single 6,000 year old hunting accident is labeling entire peoples violent and uncivilized. Either way, it's nonsense all the way down.
Correct, no sane anthropologists would use a single sample to draw conclusions. But there are many such sites and estimates are drawn across a wider body of samples.
> What little we do know is that rates of violence amongst different hunter-gatherer peoples today, despite them all being under immense outside pressures, are extremely variable... as it is between all other different groups of humans
For the third time, no, this is incorrect. Rates of violence among hunter gatherers, even among those highly isolated from other societies, is much greater than modern societies. You're probably reading sources that claim that few death occur due to war. But that's because the authors of these papers just categorize the motivation for killing as something else, like revenge. The rate of death is usually in the 10-15% range.
The data you've presented just don't allow us to make those claims, and fall apart at the gentlest interrogation:
- much doesn't relate to hunter-gatherers at all - some is a tiny sample size (in the only case I dug into, n<=1!) - the bulk of it involves peoples under pressure from encroachment (and worse) - by its nature it's woefully incomplete, some of it cherry-picked, and ignores the majority of hunter-gatherer peoples
It's a fascinating and important question, though.
And they're right. They never (formally, explicitly) consented to the rules. But therefore... what?
They have three options. One, they can choose to live and operate under those rules. Two, they can work within the system to change the rules. Or three, they can go somewhere that has rules more to their liking. This isn't a prison; they can leave any time they choose. One could even argue that by staying in the country, they are (informally, implicitly) consenting to be governed by its rules.
But instead, they try a fourth alternative: Stay, but pretend that the rules don't apply to them because of laughably bogus legal theories. That doesn't work, no matter how many new legal theories they try, and no matter how much bogus logic and philosophizing they throw at it.
We've got a lot of non-sov-cit people who don't consent to the rules. We call them "criminals".
> Or three, they can go somewhere that has rules more to their liking. This isn't a prison; they can leave any time they choose.
That's an illusion of choice, though. There isn't any unclaimed, habitable land anymore. If your views don't align with any of the 195 existing countries, then this isn't actually an option. It's just 1 or 2, but in a different location.
You can't be an anarchist, ever. There's nowhere to do it. If you want to live somewhere that pledges itself as a Christian theocracy, you better hope you're Catholic. Ditto for most religions, really. Or if you want to live in a sovereign entity with the population of a small town.
The options are really just "suck it up" or "spend your whole life trying to change it". I'm genuinely curious what the sovereign citizens would do if they were allowed to secede any land they own. It's not for me, but I am curious whether they'd actually leave or if they just don't want to follow the rules.
While your three options are the three practical options, one should note that it's not trivial to move to whatever country you might want, and not just because of costs.
Getting a work permit in another country is usually pretty hard, for instance.
Still, even with that, I think we (as a society/civilisation) need people like that, challenging the system in all sorts of ways. And not everyone not obeying the rules is a "criminal" — none of the civil offenses qualify, for instance, even in the legal sense.
Of course, some of those "challenges", especially most of those criminal ones, should be dealt with proper "retaliation" (prison sentences, large penalties...) from the society so it's obvious which "challenges" are not welcome. But let's not forget that many of the things we take for granted today have been criminal in the not so distant past.
> While your three options are the three practical options, one should note that it's not trivial to move to whatever country you might want, and not just because of costs.
It's also not trivial (Next to impossible, actually) to survive alone, completely independent of society.
If you want the benefits of society, you have to abide by its rules.
Oh, I am not disagreeing with that (though I am sure it is possible in a remote area without roads or any other society-provided infrastructure).
I still think it's good that all norms are being challenged even if it's often times hypocritical or selfish.
And how do we keep government employees honest when the courts uphold government immunity? In the present topic of Michigan town extortion, how will the government employees be financially and criminally punished?
By engaging in government. You know, voting, protesting, primaries, lobbying, running for office, propagandizing, working with organizations who do all those things, etc.
A variety of protests, I'm sure, would look askance at much of this comment.
The sovereign citizen material, though, really does leave the impression that there must be something underlying the absurdity.
Mental illness? It generally comes across as the type of homegrown rant material you'd find stapled to a telephone pole.
See, a protest - even civil disobedience - is working within the system to change the rules. Sovereign citizen stuff? Not so much.
Working within the system isn’t always the answer. Was the Boston Tea Party “working within the system”?
I've wondered at times if it would make sense for there to be an explicit legal proceeding at the age of majority in which you explicitly opt in to the social contract analogous to the naturalization process when a foreigner becomes a citizen.
I get hung up on what happens if you choose not to opt-in.
You would still be subject to not harming others nor break a voluntary agreement/contract. People have rights, and may defend themselves.
I think if you don't think we'll have the same thing on Mars as we do on Earth, then I have some NFTs to sell you.
(I'm skeptical of the very premise of colonizing Mars, but putting that aside..)
I expect what forms on Mars, at least initially, will resemble the high seas a lot more than it does any country. You'll have facilities owned and commanded by corporations operating under flags of convenience, more or less free to engage in any nastiness they like (at least until a navy or coastguard with guns shows up to enforce their will on the facility.)
Perhaps, though that seems like an unstable equilibrium. By the time we have communities up there, they're have their powerful and their not powerful, just like we terrestrials.
At this point, I’m convinced Mars is going to be some sort of neo-feudal territory.
> where they argue they never consented to be governed
They also never consented to birth.
They are free to renounce their citizenship, however. Nobody is forcing them to stay US citizens.
> Maybe we can experiment with better society designs on mars
Hate to break it to you, but Mars colonies (assuming they ever exist) are going to be dictatorships. Lifeboat ethics don't leave a lot of room for arguing, let alone voting.
Is it really that easy for US citizens to leave? Where can you go if you have neither money nor education or skills and are older?
You can leave most countries and renounce citizenship, typically with some hoops to jump through but it can be done.
The questions of where you'll go and how you'll support yourself are something that you'd best figure out before starting that process, because after you start your country of origin may well say 'not OUR problem anymore' about you.
That's not really the US's fault though, right? "You're free to leave, but if you want to stay here you have to abide by our rules," sounds reasonable I think. There are countries in the world where you're not free to leave even if another country will take you, and this argument would hold a lot more water.
Renunciation is not free - they literally charge you for it. You also can't renounce without obtaining another citizenship, which, surprise, surprise, you generally have to buy with both time and money.
Free as in freedom, not beer, as they say.
But Sovereign Citizens are rugged individualists who don't need no handout, eh?
> You also can't renounce without obtaining another citizenship
That is false for US citizens. See:
https://www.usa.gov/renounce-lose-citizenship
The book Decline and Rise of Democracy goes into detail about this. Pretty much all nations that had a resource jugular (I.e. Egypt with the Nile) become extractive societies.
>> you merely buy and sell the right to rent that land from the government for as long as you can afford it.
You seem to be speaking of property tax on land. Did you know not all land is on county assesor tax roles? Have you researched how to find land not in the county tax catalog?
I’m not aware of any land/states with no property tax. Have a link?
That's the thing, they're not really wrong, they just lack the army to back up their claims.
I do think people should be allowed to sue their parents for wrongful birth, though.
>sue their parents for wrongful birth
Nah, not when there's an obvious and simple remedy.
If it was simple, people would be doing it left and right. More like 'they got me hooked on heroine'.
I think parents should be allowed to hit their kids for being ungrateful little runts.
Moreover, parents should own their kids since they gave birth to them. They should be legally be able to take every decision for them, and be their guardian, until they die. They gave their children birth after all.
I’m not impressed. It just reminds me of children who, when they reach a certain age, start whining, “Well I didn’t ask to be born.”
We tell these people about "social contracts" then smirk when they raise the common sense objection of never signing such a contract in the first place.
Of course a social contract is not at all the same as a real contract, a social contract is not a document that you sign, it applies to you whether or not you ever consented to it. But when language that seems to conflate the two is used to persuade people who don't really have a firm grasp on the way the world works, it seems cruel to laugh at their confusion.
It is called “legal fiction”, as judges and lawyers call it among themselves.
Once it was broadly accepted that the 14th amendment made corporations into people, the die was cast on the creation of these types of legalistic shenanigans.
I'm not sure there's legal or historical basis for that assertion?
Edit: see this comment from elsewhere in this thread with a link to a scholarly history of civil asset forfeiture: https://news.ycombinator.com/item?id=31449092
The issue is that in rem jurisdiction was originally intended and justified for cases where the owner of the property was unknown or beyond the reach of the law (say overseas.) The early cases were things like an overseas shipper not paying proper import taxes. For cases like this, in rem seems reasonable to me.
Where things went off the rails is when they started applying this to cases where the owner of the property was known, and that owner should have their normal fourth amendment rights.
You give the government an inch and, historically over and over again, they take a mile.
The Presidential Surveillance Program was justified using Smith v. Maryland. The argument was that, if Smith had no reasonable expectation of privacy for metadata in isolation, no aggregate of citizens had an expectation of privacy. Therefore mass surveillance of metadata is legal. You let the government see the phone records of one citizen without a warrant and decades later you have something like 33% of all email, TCP/IP, and phone metadata being collected and analyzed by a government agency without a warrant.
The old saying that the 1st Amendment doesn’t apply to “yelling fire in a crowded theater” was an argument a Supreme Court justice used to justify jailing a man for handing out anti-draft pamphlets. You let the government regulate speech that poses a clear and present danger and they use that to make it illegal to oppose a draft.
> The old saying that the 1st Amendment doesn’t apply to “yelling fire in a crowded theater” was an argument a Supreme Court justice used to justify jailing a man for handing out anti-draft pamphlets.
This whole 'you can't yell fire in a crowded theater' thing is not a real thing.
Per @popehat:
5/ '"shout fire in a theater" is a rhetorical device used in 1919 to justify jailing people for writing anti-draft pamphlets in World War I. The First Amendment standard (to use the term generously) applied in that case has been dead for more than a half-century.'
6/ 'The same judge went on to smirk "three generations of imbeciles are enough" to justify forcible government sterilization of persons deemed undesirable by the state, so you know, he had a way with words.'
7/ 'So when you trot out "you can't shout fire in a theater" in response to a First Amendment question, you're using the catchphrase a eugenicist used to support jailing people for criticizing the draft in a case that hasn't been good law for a half century.' [1]
[1] https://twitter.com/Popehat/status/1356670918706089985
There's no modern attachment to eugenics or the draft though. A person full of bad ideas can still have a good one, and it's noticeable that his others do not persist
> 7/ 'So when you trot out "you can't shout fire in a theater" in response to a First Amendment question, you're using the catchphrase a eugenicist used to support jailing people for criticizing the draft in a case that hasn't been good law for a half century.' [1]
That's true, but it's also true to criticize anyone citing the constitution by pointing out that it was written by slaveowners and perpetrators of genocide.
For some reason, though, that argument never goes over well. Maybe it's because the character of the person who made an argument hundreds of years ago is only relevant when you disagree with the argument.
So the defense of violating people's right to be secure from seizurs is some mumbo jumbo about charging objects with a crime? How does charging anyone or anything relate to the 6th amendment?
People have constitutional rights, objects do not
The right of the people to be secure in their ... effects, against unreasonable ... seizures, shall not be violated
The building was part of the person's effects. I don't understand how your argument is legal (not that I don't believe you - civil forfeiture has been going on long enough that I assume SCOTUS has heard a sampling of cases).
It beggars belief that this practice has stood for decades.
I agree with you and think it's a crazy practice. I was just saying how they justify it (flaws aside)
Seizing objects violates the owners rights, not the objects rights.
Another angle of defense might be to ask if it's even possible to violate the 6th amendment. What would violating the 6th amendment look like? I suspect the answer will closely resemble civil forfeitures.
So is it even possible to violate the 6th amendment? Could the police not just seize anything since that object has no rights?
And objects can't commit crimes
It's about being used in the commission of a crime, not that the object committed the crime itself
If that's the case, then what's the point in seizing it? The crime has already been committed, the pile of money being taken doesn't change that one bit.
If I use a payphone to order a hit, is it reasonable for the government to come rip it out of the ground? What if I use a freeway to smuggle drugs? Now the road must be torn out?
Money is fungible and has all sorts of uses. Any particular pile of cash is no more or less likely to be intrinsically criminal in nature. Just like phones and freeways.
The point is to make the crime unprofitable so people will not want to do it. This is not a crazy policy assuming the crime actually happened. The ridiculous part about civil asset forfeiture is that no one has to prove a crime even occured. The onus is on the pile of money or whatever to prove its innocence.
If the object didn't commit the crime, then how can you bring a court case against it?
That's a great question. Unfortunately I don't have the answer but I believe it has something to do with civil v. criminal cases. I just know that's the line of thinking that these top legal minds are using to justify this bs
Yeah no guilty mind.
> People have constitutional rights, objects do not
I'm pretty sure that's been modified to US people on US soil, at least 100 miles from a border, have constitutional rights, but those rights were all intended to mean something different than what they actually say.
The "defendant" arg is passed by value and can't be null.
The hack they came up with is to just disable type checking and pass in whatever object they have available.
TFA describes the inevitable runtime errors
This is precisely like the prohibition on “cruel AND unusual punishment” being circumvented by making cruelty usual.
I’d mourn for the US, but it seems it’s been dead & gone longer than I’ve been alive.
I've thought about that one a lot and I think it is the real intention. The admitted purpose of punishment in the legal system is punishment, not rehabilitation. That is something that can be change, but until it is, only punishments both cruel and unusual are prohibited. Unusual but not cruel punishments allow for flexibility like forcing someone to write a paper or read a book. Other punishments, like putting someone in a cage, are necessarily cruel.
This country was founded with a workforce of slaves and indentured servants, ankle deep in the blood of natives. One might rationalize with difficulty some way to argue the US isn't racist by design because of that, but to argue that it was civil libertarian is a step too far.
The civil libertarian language comes from being heavily seeded by small Protestant cults, but not wanting to fall into European-style religious wars over it. Also, ironically, to protect the rights of a slaveholding minority.
How on earth is this able to stand? It’s absurd. Have challenges made it to the Supreme Court and lost?
Customs /international shipments. There is a long history of seizing illegal or suspect material at boarder crossings where the actual owner/importer is unknown or not available. A funny-named lawsuit against a box is significantly better than the alternative: zero legal process and no case recorded anywhere.
Agreed, it makes sense in some contexts. The issue with asset forfeiture is that the state pretends not to know who the owner is so they can move forward in rem.
[edit] Well, two problems: frequently the entity seizing the property gets to keep it and add it to their budget - or split the proceeds. This creates an incentive for them to move forward this way.
It'd be better to do a John Doe case, because an item can't represent itself. A hyptothetical defndant can.
There's also the problem of you have no rights at the border anyway, even though you should.
> lawsuit against a box
I just can't make sense of the "vs" in the case titles, in what way is the object fighting back? Why is there a case at all and not "here is a list of contraband seized at the border" ?
Why is there a case at all and not "here is a list of contraband seized at the border" ?
I would assume the legal procedure is what determines what actually happens to the object. Just like the police arrest people but don't sentence them or put them in prison directly.
Legal Research and Writing day one: it is never written as "vs", always "v." It is Roe v. Wade, not Roe vs. Wade.
That makes sense in that case, but if that’s the reason, how can that apply to situations where the ownership of the property is well understood?
Lawyers have that habit of taking an obviously false fact and rewrite it so that you can't prove by Boolean logic using laws or prior legal decisions as premises that they are false. Instead, you have to recourse for synonyms or even to the words meaning (some times, the meaning as used, not as the dictionary says). Then they pretend the new writing is a completely different thing from the meanings it convoys, and that what they said is absolutely true, since you can't algebraically prove it's false.
That practice should be a crime, by itself.
It's common in admiralty law everywhere. If you have a ship that hasn't paid its docking fees, what can you do? The owner is an ocean away and won't come to court even if you find a way to inform them. If you let the ship sail the port will never be paid. It can be arrested and, if necessary, auctioned to pay the debt. But you can't do that without a court order. So there is an in rem action against the ship itself. It makes perfect sense in that context (and in the one that other commentators have mentioned, which is unaccompanied packages of contraband). Also prize and salvage actions, which are also admiralty proceedings.
The difficulty comes when you stretch the concept like with civil forfeiture. It's not even necessary: England and Wales has the Proceeds of Crime Act to allow seizure and forfeiture of criminal property and all the cases under that are ordinary in personam actions between the state and the putative criminal.
> If you have a ship that hasn't paid its docking fees, what can you do?
You can sue the owner. If they don't show up that doesn't mean that they automatically win the case - if anything, it's the opposite. If you can't identify the owner you can make the case against John Doe and still have a state appointed defender represent the owner's rights. You can get a court-ordered injunction to detain the ship until the case is resolved.
I don't see why you need to invent a new legal concept here at all - other that it makes things easier for the state to seize things when they don't need to worry about such pesky things as rights.
Hmm. I've been wondering why all the Russian yachts have been "arrested" lately in the news as opposed to "seized", for example. It sounded very strange to me as I thought that "arrested" only applied to people.
Your use in this comment make me think that usage is tied to this legal concept of in rem.
I didn’t know this, thanks. This is preposterous. I was already strongly opposed to civil forfeiture but the shaky constitutional foundation makes things even worse (if that was possible).
Which just goes to show how absolutely fucking insane our court system is.
Any sane court system would believe that charging an inanimate object with a crime is beyond bonkers.
The case titles are utterly hilarious, and do such a great job in highlighting the absurdity of this entire process.
Creative accounting can still be fraud.
Bringing a civil suit doesn’t change the fundamental fact of this being unreasonable seizure. It’s seizure. And it’s unreasonable.
Naming it something else or inventing a process for doing it doesn’t change reality.
> The property itself is the defendant
Hope it has a good lawyer then I guess?
Hah. Boxes don't have a right to representation.
If only the owner was reachable to answer for the boxes instead.
One of my favorite (although also sad) was the time the U.S. Government sued a bunch of shark fins: United States v. Approximately 64,695 Pounds of Shark Fins.
I'm curious to if/how this relates to corporations having free speech rights under Citizens United vs. FEC.
Property is an asset, not a corporation (though could a corp. be an asset of a holding company?) but philosophically-speaking, "property itself as a defendant" and "corporation as a legal individual" seems connected.
Of course the same party who says that corporations should have “free speech rights” are the same ones that target corporations that speak out against their policies. It almost happened in GA with Delta Airlines and did happen in Florida with Disney.
In the case of Florida, if it isn’t struck down, it’s going to caused the cities in the surrounding area to have to pay higher taxes and take on Disney’s debts.
Next we'll start charging animals of murder again. Maybe Chassenée's rats will show up for the US government to be tried
Here is a lengthy and relatively accessible discussion of how the mechanics work. It’s essentially a byproduct of the language in the Controlled Substances Act and a few procedural tricks. Aka another way the war on drugs has harmed us at a fundamental, moral, and constitutional level.
https://www.yalelawjournal.org/feature/the-constitutionality...
I know that courts just interpret the constitution to mean what they want, but they really outdid themselves on this one.
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
We "follow the constitution" for abortion rights but when it comes to NSA surveillance we look the other way.
lets just drop the pretense of even using that phrase
To me it is disqualifying for those analyses being taken seriously. If you are claiming that you are doing no interpretation and others are, that just not credible within the law. Of COURSE they are interpreting - that's literally the job. The idea that you aren't interpreting and instead are only divining what others meant is so incredible that it needs to stop being repeated.
Stop repeating the propaganda because it just normalizes a ridiculous phrase.
My point was, the powers that be will make any excuse so long as it increases state power.
Powers will use any excuse, the excuse is a distraction. It’s much clearer and more effective to properly name what they are doing rather than indulge their demand of what ever silly term they invent to justify it.
There is no such thing as textualism, there is just (1) a belief that your are doing a thing you labeled textualism but is philosophically incompatible with the concept of the law or (2) lying. Anything from the right in the us as it relates to the constitution is (2).
And in this country, 'state power' often includes 'the power of the states (good state power) to tyrannize their residents as they see fit, without any federal (bad state power) oversight.'
Abortion isn't covered in the U.S. Constitution, aside from perhaps a right to life? Are you referring to Roe v. Wade? If so, that's a court decision.
According to Roe v. Wade, abortion is covered by the 14th Amendment. Which is ludicrous regardless of how you feel about abortion.
The 9th amendment certainly covers it. It says:
> The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The upcoming court ruling, denies and disparages a right that was retained by the people for the last 50 years. In fact, it leads me to believe that the very reasoning used by the SC according to the memo is unconstitutional (they argue that since the word abortion doesn't appear in the constitution that it can't be considered by the court, a position that goes against the text and spirit of the 9th amendment)
Abortion is absolutely not covered in the Constitution and Roe v Wade was a one of the most twisted bits of logic I've ever seen out of the court. We need real legislation rather then trying to stretch amendments to cover things that they clearly don't.
I was tempted to see it that way, but the general right to be left alone by the government is most certainly in the founding character of the country. That right to be left alone most certainly applies to medical care. The only thing novel about Roe v Wade was applying the newer standard of gender equality to extend the right to be left alone to women.
Since we're talking about abortion, let's restate what should be abundantly clear - nobody is using abortion as a substitute for birth control. "Pro-choice" is an utterly stupid term that plays right into the political tempest-in-a-tea-pot, completely on-brand for the Democratic party. An appropriate label would be pro-medical-care. This whole topic is akin to debating whether individual states should be able to prevent their residents from receiving blood transfusions.
How is pro choice a stupid term? You are literally arguing that the government shouldn't get involved in someone's medical care, that they should be allowed to make their own choices rather than having the decision forced on them by the court.
The only reason i can see you saying this is that you are angry and have found a group to other. Perhaps you should do some meditation or smoke a joint or whatever to relax, and stop directing your anger at people advocating for a position you agree with.
"Choice" implies that abortion is some optional activity, directly supporting this red team narrative of convenience. Putting the focus on individual choice carries little weight with collectivists/conservatives, especially when there is an imagined second person involved. Meanwhile from someone in the position of needing a medically necessary or medically prudent abortion, the situation is anything but a choice.
The politickers have chosen the strongest statement to rally their own group around, but what it has actually done is create a potent straw man for opposition to rally around.
pro-medical-care is identically stupid.
This is about the right to bodily autonomy, not medical care. Right now we have a right to not be searched, but don't have a right to do what we want with our own bodies. Give it a few years, watch in amusement as redneck states start attempting to ban tattoo parlors for "decency" reasons under the auspices of "proper medical care."
> This is about the right to bodily autonomy, not medical care.
Does "bodily autonomy" apply to vaccines?
What number of people were forced to take a vaccine?
> What number of people were forced to take a vaccine?
Folks who worked for govt agencies and contractors were fired for refusing and there were serious efforts to deny govt services on that basis.
Feel free to play games with "forced" but we both know how you'd come down wrt comparable measures and abortion.
Oh, I'm not playing games.
They're literally different and you know it to be true, but you'd prefer to play semantics because you can't back it up with logic. Like the idea that losing your job for failing to comply with public safety measures is the same as being charged with murder for aborting an ectopic pregnancy. Severing an employment relationship is nothing like incarcerating someone.
So, you're okay with women being fired or denied govt benefits if they have an abortion.
What? You're not? But you said that they were different.
The difference is that one involves abortion while the other involves vaccines.
And yes, I'm going to argue meaning. There aren't any tautologies here.
redneck states
Yes, redneck states (I'm from Louisiana and live in Texas... I have no reason to be politically correct). The current opposition to bodily autonomy is historically intertwined with opposition to dismantling segregation, and there are many "super-concerned" adults living south of the Mason-Dixon who would be just fine with prohibiting their kids from getting tattoos because they clash with appearances at Sunday service. The exact same disregard for bodily autonomy for the purposes of preserving the life of a fetus also applies to body art.
Ironically the bible forbids tattoos (LV 19:28), but doesn't say much about abortion.
The 9th amendment...
This argument proves too much. One might say, for example, that the right to crush annoying smartphones isn't specifically addressed in the constitution or amendments thereof, and thus we must have that right. However, the states do have laws against theft, vandalism, etc. so we don't actually have the right to crush any smartphones that annoy us. The way to preempt those state laws would be with a federal law establishing such a right.
I am pro-choice, but such a federal law addressing abortion could have been passed at any point in the decades since (or before?) Roe. My understanding of the leaked ruling is that it would be overruled by such codification.
The weakness of the appeal to 9A explains why Roe itself did not rely on that.
> The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
That's great and all, but how did they ass-pull the third trimester restriction? Courts recognizing rights not explicitly found in the Constitution is what the 9th amendment permits. But to ass-pull a restriction to a right, when that restriction isn't found in the Constitution or any law passed by congress? Is that really what the 9th Amendment is about? That's hard to swallow if so. What if SCOTUS ass-pulls a restriction to the 1st Amendment and says it never applies to computers? Is that the sort of thing the 9th Amendment permits?
> The upcoming court ruling, denies and disparages a right that was retained by the people for the last 50 years.
That ruling returns the relevant power to the states, see the 10th amendment.
The Supreme Court has been stacked with ideologues and possibly criminals (given Mr. Kavanaugh’s history). I’ve even read that getting Gorsuch on the court required a huge payoff to Mr. Breyer — open corruption.
I’m not well versed enough in its history to know if this is abnormal. I find it unacceptable, but given the state of government in the US, I don’t have any solutions.
roe v wade also only really concerns itself on whether it is a federal or state level issue.
Hmm, I don't think that's accurate. Roe v Wade did say that Texas's statutes against abortion violated the fundamental right to privacy found in the 14th amendment. If Roe v Wade had simply said "It's a federal issue, it's up to Congress to pass an amendment if they want it changed", then I think you'd be right.
But Roe v Wade went further than that, with all the talk about pregnancy trimester nonsense. I buy into the premise of a right to privacy being derived from the 14th Amendment, but there's certainly nothing about trimesters in that amendment; it reeks of the court trying legislate. Either this right to privacy exists or it doesn't, it shouldn't be conditional on trimesters. I think this is where they fucked up.
Anyway, now Congress has to do what they should have done 50 years ago and sort this mess out the proper way.
Their argument about trimesters isn't terribly bad. The basic gist is that there are competing interests: that of the woman and control over her body, and that of the state in its interests in protecting humans.
They basically ignore the question of whether a fetus is alive or a citizen. It's the state's interest in protecting a potential person/citizen vs the woman's right to privacy.
The trimester system allows the controlling interest to shift as the fetus becomes closer to a citizen (and thus increasing the validity of the state's interest). In the first trimester, it's not at all close to a citizen and the woman's rights reign supreme. There are some concessions for the state in the second trimester, and by the third trimester, it's close enough to a citizen that the state has a compelling interest in preventing harm.
They explicitly call out that the right to privacy is not absolute, which is basically par for the course. The 1st Amendment doesn't let you incite violence, the second doesn't guarantee your right to buy a tank and ammunition, felons can't vote, prisoners can be slaves, etc. Basically none of our rights are absolute. It's a balance between preserving the rights of the people and the interests of the state.
It's an arbitrary framework, which the SC acknowledged, but you have to draw a line somewhere. Without a consensus on when life begins, that's always going to be an arbitrary line.
You should try reading the constitution some time - there's an amendment that disagrees with your reasoning. It's called the 9th amendment and it literally says that there are rights beyond those specifically enumerated in the constitution.
The constitution doesn’t grant rights to the people but sets down the restrictions on what the federal government can and can not do.
Anything and everything not specifically outlined in it is either retained by the people or governed by the states.
If the Supreme Court says the federal government doesn’t have jurisdiction they are simply returning the responsibility to the states or default legal status. They literally can’t strip away a right by returning it to the people.
I think you should read my comment again. I agree with the premise of a right to privacy being found in the 14th Amendment. It you understand that I understand that and are trying to draw my attention to something else, then I'm afraid I don't understand what you mean. What I find suspect is the court seemingly to invent a restriction to such an inferred right, the trimester rule.
The Supreme Court upholds a proud tradition of pretending that the 9th and 10th amendments don’t exist. I believe I remember Judge Bork pointing out, to general outrage, during his “confirmation” “hearings” that these amendments essentially don’t mean anything. He was just calling attention to the sad truth of the matter.
> There needs to be a direct challenge against this type of extra-judicial seizure in the US Supreme Court as it's a clear challenge to the entire operation of the rule of law and legal system.
There has been, and the Supreme Court upheld it. As I recall, they didn't even bother hearing the case.
Didn't hear /= upheld
Since it has been ruled constitutional, that leaves two options:
1) change all state laws to nuke the practice
2) leverage the practice much more heavily such that more important and influential people want to nuke it
> change all state laws to nuke the practice
Even that's just a start. According to https://www.forbes.com/sites/nicksibilla/2018/12/19/cops-can..., when one state banned civil forfeiture, it was so profitable that several cities kept doing it in violation of the state law, until courts finally forced them to stop 3 years later.
So next the federal DEA stepped in. Since the federal government still practices civil forfeiture in the state, local police agencies are encouraged to tip off the DEA to any property that might be federally seizable, and then the DEA pays kickbacks to the local police force that provided the tip.
This all sounds like racketeering and conspiracy to me. But you see, when the federal government does it, it's NOT racketeering and conspiracy.
yeah the fed profit sharing program is a real big one
Let's say my vehicle is stolen, and police find a vehicle at my neighbor's house with the identical make, model, and year but with the VIN sanded off. And this neighbor just so happens to operate a shipping company that specializes in shipping vehicles out of the country, but has never been convicted of anything criminal.
How would you say we should handle this scenario? We have a good reason to believe that the property is actually mine, and also that if it is not seized soon then it will be lost forever. (Since, as we all know, court rulings happen on much longer time scales.)
If you have an overly aggressive civil forfeiture law then the police can seize things when they shouldn't. But if you have none, then don't you hamstring law enforcement unnecessarily, and instead provide greater incentive for crime?
I think you have a pretty fundamental misunderstanding of what civil forfeiture is about. Civil forfeiture would mean the police take the car, don't return it to the rightful owner, and don't charge the thieves with a crime.
Police don't need civil forfeiture to hold evidence in advance of pressing charges, or to recover stolen property and return it to its rightful owner. They only need civil forfeiture if they intend to keep the car for themselves.
They can get a warrant based on probable cause signed by a judge.
That argument might actually hold up with the current originalist Supreme Court. It's worth pursuing. There are upsides to constitutional originalism. There's no reason the Fourth Amendment shouldn't be taken as literally as the Second.
> That argument might actually hold up with the current originalist Supreme Court. It's worth pursuing. There are upsides to constitutional originalism. There's no reason the Fourth Amendment shouldn't be taken as literally as the Second.
You are confusing originalism with textualism (there is an argument that the current Court’s dominant philosophy [or mode of rationalization, for the more cynical] is both originalist and textualist, but your particular argument is more of an appeal to textualism than originalism.)
The Fourth Amendment is tricky... it's got that word "unreasonable" you can just drive a truck through.
And all the stuff about particularity of warrants is nice, but it doesn't actually lay out when warrants are required.
This is why Legalese was invented. They have to be as explicit as possible to avoid any possible interpretation of what was written other than what was actually meant. A legal document with any phrasing that is "subject to interpretation" will eventually be interpreted in a way the origin author did not intend.
"Unreasonable" is a highly subjective term and should not exist in legal documents.
Seems like the ACLU should go to bat here. Isn't this exactly the sort of thing they exist to do?
"Do not quote laws to we who hold swords."
It clearly isn't a direct and obvious violation.
Even ignoring any say the rest of the Constitution has on civil forfeiture, even the parts that you quote do not prevent civil forfeitures on their own.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"
The rub here is "unreasonable". The fact that the constitution explicitly proscribes "unreasonable" seizures means it also allows "reasonable" seizures.
So there is no clear answer here because unreasonable is completely subjective.
It’s only ambiguous if you ignore the clear intent of what was written. Just like how the right to a “speedy” trial somehow allows them to be delayed for over a year. Sorry the language isn’t ambiguous, the language is being ignored.
> Just like how the right to a “speedy” trial somehow allows them to be delayed for over a year.
Generally, when trials take a very long time to happen, it's because the defendant has decided it is in their interest to waive the right to a speedy trial.
Ummm, Gitmo? J6 detainees? And countless other stories of young black men being held without trials to their own detriment.
> Ummm, Gitmo?
Umm, Gitmo was messed up. But, to be clear, the United States does not guarantee constitutional rights to non-citizens who have not touched US soil, so this is a bit of a canard.
> J6 detainees?
Despite rumors of hundreds of January 6th detainees languishing in jails-- the actual number is approximately 35. Most of these have waived speedy trial. Most of these have not been detained for a very long time.
A few are still undergoing legal discovery. It's a problematic set of circumstances: further, closely related arrests happen; without providing additional information on the new arrests to existing arrestees' counsel, convictions could later be set aside. In turn, this restarts some clocks. On the other hand, judges are getting frustrated and warning the prosecution that these delays are becoming excessive.
the United States does not guarantee constitutional rights to non-citizens who have not touched US soil
I can't find this detail in my copy of the constitution. 6A in particular specifies "the accused". It's true that most Gitmo prisoners were never actually accused of anything (because they had never done anything, in particular anything related to actions undertaken by Saudi nationals under the direction of Saudi intelligence personnel), and were eventually released without apology. However, any prisoner who ever actually went to trial would certainly be classified as "accused".
In the context of civil asset forfeiture, it is not uncommon for the state to drag it out and make it not worth reclaiming the money.
Here in this subthread, we're talking about the right to a speedy criminal trial.
Speedy civil trials are not a constitutional right. (Though, when it comes to forfeiture, the long timelines are one of many problematic aspects).
These forfeiture trials are criminal trials. If the government is suing over a breech of contract or something that’s a civil matter, but when the government is acting with powers outside of those of a normal citizen it’s a criminal trial in everything but name.
So it’s doubly troubling as they are also ignoring the presumption of innocence and other such protections.
> These forfeiture trials are criminal trials.
These forfeiture trials are not criminal trials. There are plenty of ways you can be civilly liable without breach of contract.
I do think the standard should be higher than a typical civil case (beyond preponderance of the evidence).
But this artifact of law has a reason to exist: if there's stuff that's most likely involved in a crime with no identifiable owner, it makes sense for it to be seized. Especially the original case of distant and difficult to identify ship owners. (Once an owner can be identified, I do think there should be greater protections-- deriving from the fourth, not the sixth, amendment.
We both agree with what’s going on and that it’s wrong.
I am saying the court system is misclassifying criminal cases as civil ones. You want to increase the standard of evidence which IMO means roughly the same thing. But, I can see why you might disagree.
There are quite a lot of kinds of case that don't fall neatly into one or the other. Another one (at least in England and Wales) is contempt of court hearings arising from civil proceedings. Judges have powers against, for example, litigants ignoring their orders. They're clearly coercive, and can carry prison sentences, but they aren't clearly criminal: the original judge can handle it summarily (even if they don't sit in criminal cases) and in any case the rules are those of the Civil Procedure Code (not the Criminal one). On the other hand, the contemnor is expressly given access to a lawyer, and a finding of contempt is on the criminal standard ('beyond reasonable doubt') rather than the civil ('the balance of probabilities').
An interesting instance of this happened recently, when an appellant in a civil case to our Supreme Court (who also happened to be a lawyer) deliberately leaked the court's draft opinion to the press while it was under embargo. The court wasn't sure what to do, as contempt findings carry an automatic right of appeal and yet there's no-one to appeal to from the supreme court.
(As we have more than one benchful of Supreme Court justices, they decided to assemble one panel for the 'first instance' hearing, which was itself distinct from that who had heard the original case, and a completely fresh panel for the appeal[0]. He was fined £5000 and the appeal was dismissed on all grounds.)
Allegations of fraud in a civil case have also historically been treated differently, because losing could have a similar effect on a litigant's reputation (and ability to carry out a business) as a criminal conviction. It's sometimes possible to get a civil jury trial under these circumstances, for example, which have been effectively abolished in this jurisdiction.
[0]: https://www.supremecourt.uk/cases/uksc-2021-0160.html
They _should_ be like criminal proceedings, but actually operate as civil actions. Civil Asset Forfeiture - it's right there in the name.
I agree that’s what’s happening.
Your post that I responded to put it upon the defendant who stretches things out. Regardless of whether it is the civil or criminal, it is frequently the state which delays and adds procedure to these forfeitures for the purpose of grinding out the defendant.
And if they don’t waive, it’s still on the order of months in most jurisdictions, isn’t it? That’s not speedy.
> And if they don’t waive, it’s still on the order of months in most jurisdictions, isn’t it? That’s not speedy.
Shorter would compromise the defense, who has less warning of the need to prepare for trial (that's why in the federal system, the defense, in addition to having a waivable statutory right for trial to start within 70 days of charging, also has a waivable statutory right for it to not start less than 30 days from charging.)
And it is speedy compared to the problems which motivated the guarantee.
IMO-- A few months to arraign, exchange evidence, make procedural rulings before trial, etc, isn't unreasonable.
I realize this is the predominant view, but it never made sense to me. I think we’ve just grown accustomed to it. The Constitution doesn’t say “prompt”, it says “speedy”. I’m sure those without the ability to pay pail, or who are denied bail, don’t regard their few months in the US’s notoriously dangerous jails as reasonable.
I think the bigger problem here is bail and pretrial detention, and that's what should get fixed instead of trying to ram trials through quickly.
(Yes, the timeframe is longer than it was in the 18th century, but trials have also gotten more complex: mostly in ways that benefit defendants).
I agree, except that it’s a long time to be in jail, especially in some of the larger counties in and around cities in the U.S.. Fatally long, in some cases.
EDIT: Nevermind, I see that you addressed this down thread.
The problem here is not generally but rather those cases where people haven’t waved their rights.
I'm saying most of the cases where people are held up as "detained for ____ days without trial", they have waived right to speedy trial.
The overwhelming majority of defendants not waiving speedy trials get a trial within a year.
Of the remaining, there's a big share that are various kinds of edge cases where it makes sense that a trial has taken a little longer than normal.
And then there's the remaining abuses and problems, which are relatively small in number but should be addressed.
Look even waiting 3 months is already a failure of the speedy requirement. Saying well 1 year is too long but edge cases isn’t a minor issue… No anyone ever hitting 1 year is clear evidence of total failure of the system to even pretend to care about this issue.
> Look even waiting 3 months is already a failure of the speedy requirement.
3-4 months to get a criminal case together, with discovery requirements, etc, seems reasonable.
> No anyone ever hitting 1 year is clear evidence of total failure of the system to even pretend to care about this issue.
I don't agree. Terrible stuff happens occasionally-- it is not evidence that every element of the system is broken everywhere.
IMO the big issue is bail and pre-trial detention. Yes, criminal cases being in limbo is bad (and the constitutional right of speedy trial is important)-- but a lot of the reason why they take longer now than in the 18th century is because of additional protections for defendants.
I'm sure all the Jan 6 protestor have waved their right to a speedy trial...
"Shall not be infringed" is another one that is commonly interpreted quite differently than the most plain reading would suggest. (I say this as someone who does not own a firearm, so this is probably not gun-nuttery.)
The modern pro-gun movement has erased the words "well-regulated militia" as well.
The thinking of course is everyone could potentially join a militia, therefore everyone is defacto covered under the second amendment.
Nah, well related militia was not a restriction on the right, it was a reason for everyone to have the right. You have to remember that the Constitution doesn't give the people rights, it delineates the governments rights. The 1st 10 amendment's were added because the anti- federalists were (rightly) worried that the government would misappropriated all powers and eventually the people would no longer be free. They were basically a list of rights for a minimum viable free society.
And the Anti-gun movement conveniently ignores the concept of a preposition.
Because one first part explains the rationale, the second part describes the right.
The first part also provides a context for understanding the second part. For example the right to "bear" arms shouldn't be read as including a general right to brandish arms, even though a less constrained reading of "bear" might suggest that. Conversely, it does include a right to fire those arms, since that is necessary for a well regulated militia to bear them effectively.
I think it’s fair to question why out of the 10 amendments that make up the bill of rights, only the second amendment would have a part that is non-functional and “describes the rationale”. The preposition is part of the amendment, and its existence puts a qualification on what the right to bear arms means.
I personally think the current state of affairs does a pretty good job balancing the two parts of the amendment. States are allowed to put a lot of restrictions on how you can buy guns, and where you can carry/use them, but ultimately people are allowed to have them. You aren’t allowed a nuke, you are allowed a shotgun. Exactly what level of personal firepower should be allowed for a “well regulated militia” could be a constant source for debate, but I think the balance is kept pretty well.
> it’s fair to question why out of the 10 amendments that make up the bill of rights, only the second amendment would have a part that is non-functional and “describes the rationale”.
I know this is apostasy, but because the founders weren't omniscient beings that drafted perfect documents. Rather they were politicians basically just winging it while trying to come to some consensus. Critically, they lacked an understanding of the limitation of logical systems that would only be discovered in the 20th century - the repercussions of which are with us to this day.
> Exactly what level of personal firepower should be allowed for a “well regulated militia” could be a constant source for debate, but I think the balance is kept pretty well.
From the commoner's perspective, most explosives are basically illegal even though they could be responsibly kept by anyone with a little land. So no, I don't think any balance has been achieved. For starters, anything that a domestic-facing police department is allowed to have should be fair game for the rest of the People as well.
They put the qualifier on it because they felt extremely strong that the country should not have a standing military that could be used as a tool of oppression. Instead, they felt that it should have an armed citizenry, which could form an army in the event of a war.
And now we have a militarized police force who extort citizens for cars…
The restrictions that some states put on gun purchases/ownership have are quite excessive and onerous, and may end up being struck down by a SCOTUS decision coming down within the next few months.
This is an example of what I am referring to.
Hand waving away the wording about military utility, and only focusing on the individual right.
We can, and need to have a debate about both, and not just the latter. That is my point.
Every able-bodied American male 17 or older and under 45 is already a member of a well-regulated militia[1]. Now you may think Congress should ask more of the militia of the United States, but being a statutory organization certainly meets the well-regulated criteria.
[1] https://www.law.cornell.edu/uscode/text/10/246
The statute calls them unorganized, which is arguably not well regulated...
"(2)the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."
Regulated in the constitution did not mean controlled or restricted as in 'regulations'. It meant armed and capable.
Private gun-owning citizens are not automatically counted among active unorganized militia.
Even in the few active state militia they would be considered eligible, not members.
SCOTUS has had contradictory decisions in the past on whether private gun rights hinge on military applications of the specific firearms, but indeed this is the talking point - state militias.
Collectively, the people who parrot "Shall Not Be Infringed" are really trying to avoid the militia debate entirely.
Considering there's letters from James Madison endorsing cannon ownership, I don't think it means what you think it means either.
Heh we can still get our cannons: https://www.nationalreview.com/corner/americans-can-still-bu...
Which is exactly the same rationale that the 2nd amendments authors used.
There is a very long history of jurisprudence over the past 2+ centuries that has done a pretty good job of defining what "unreasonable" means, and there are tons and tons of SCOTUS cases that have dealt with that. The basics, though, nearly always involve a judge reviewing the evidence to determine if a crime is probable, and issuing a warrant in that case.
The fact that civil forfeiture is so contrary to all the other definitions of "reasonable" that courts have emphasized over the years should make it a clear violation of the Constitution.
From the US constitution:
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable … seizures, shall not be violated, … but upon probable cause, supported by Oath or affirmation, and particularly describing the … things to be seized.
From the article:
> In a response to an interrogatory filed in the Kozbials' subsequent lawsuit against Highland Park, a city police officer answered "none" when asked to identify any predicate felony offenses justifying the seizure.
What was the probable cause supported by oath or affirmation?
One test the law likes for reasonableness is to ask a jury.
We presume the jury are reasonable people (unfortunately the US also screws up how juries work) and so if they have a consensus that must be reasonable.
The UK uses "double reasonableness" in it's anti-tax avoidance law. It says the jury should ask themselves if any reasonable person might have done this anyway. If your jurors can't conceive of how even one other reasonable person could think what you did made sense, except that it reduced tax liability, then in fact it did not reduce liability, your avoidance scheme doesn't work.
The broader question isn’t whether a specific action is reasonable in context, but whether civil asset forfeiture is constitutional. So it’s a question of law for the courts to decide, not a question of fact for a jury to decide.
We'd love to see a constitutional ruling against civil asset forfeiture. It's the right thing.
In the absence of that, though, jury rulings against the specific seizure is the next best defense.
There is no clear answer to the question of reasonableness/unreasonableness, but civil asset forfeiture as used today is *far* into unreasonable territory.
> The fact that the constitution explicitly proscribes "unreasonable" seizures means it also allows "reasonable" seizures.
Yes, a reasonable seizure is either through eminent domain (with just compensation) or the result of a criminal proceeding as punishment.
Unreasonable would be seizures with no criminal proceedings or just compensation.
reasonable here could easily be aligned with, you know, having due process.
The constitution describes people's property and makes people subject to it. Suing a car or a pile of cash is farcical - because the constitution doesn't have authority over objects, it has authority over the people who own and possess the objects.
Its the same basic factual explanation as to the difference between two consenting adults and adults and children/animals that seems to befuddle those who don't like gay rights.
> because the constitution doesn't have authority over objects
First, the overwhelming majority of civil forfeiture happens in states, where a mere claim of the constitution not explicitly giving the federal government authority doesn't hold water (or invoke the incorporation doctrine).
Second, Federal courts have long exercised authority over objects and courts having authority over objects is something that is broadly considered constitutional.
> Suing a car or a pile of cash is farcical
It may seem farcical, but it has a decent legal basis and a reasonable reason for existance: there are times that property seems to A) be involved in crime, and B) unclaimed by owners. E.g. distant shipowners engaged in smuggling. It seems reasonable for the government to seize the property in these cases.
It's much more problematic when a clear owner can be identified (or, when an owner comes forward after seizure). I agree in those circumstances action should be brought against the people, and should require a higher standard than the preponderance of the evidence, for property to be kept.
> Its the same basic factual explanation as to the difference between two consenting adults and adults and children/animals that seems to befuddle those who don't like gay rights.
I don't quite see the connection.
This forfeiture notice is crazy: https://www.documentcloud.org/documents/4614019-Chappell-Not...
So much for innocent until proven guilty.>So much for innocent until proven guilty.
I'm not sure how long it has been this way, but "innocent until proven guilty" isn't true in most of the country. If you are arrested, you will spend at least a day in jail if you can make bail. If not, you will spend weeks or months in jail prior to your first hearing. Often, that hearing will just be to setup another hearing, months down the line. So, you could be in jail a very long time without ever having a hearing at all, and without the state proving your guilt.
Even if you are rich and innocent and lucky, then you will spend a day in jail, and spend thousands on bail and lawyers, and if found innocent you will still have all of it on your record, lost all of that money, a day of your life, the abuse of the police officer and jailors, and there are many situations where answering "yes" to "have you ever been arrested" will disqualify you.
So, yeah, innocent until proven guilty is not a thing in the US. I fear that people might read this and think it's hyberbole, or that I'm part of some right-wing conspiracy theorist thing. It's not, I'm not. If you know a LEO, ask them. A LEO in the US is judge, jury and executioner, and they are quite happy for this to be the case. It means they get to do whatever they want. It is remarkable that Chauvin got convicted for murdering George Floyd on camera! That's why I think the BLM protests aren't quite right - should be CLM, civilians lives matter, because it's not about race, it's about giving low-to-average intelligence people absolute power over everyone around them.
I've been to jail for awhile, it really is like this. On top of that, you are told almost nothing about how to make bail, what's going on, etc, and also congratulations, now everyone looks down on you even if you are proven innocent, especially the people inside the system (judges, lawyers, etc.)
Indeed. "Well, I would never have been so stupid as to get arrested!" is the attitude. It's a hueristic based on false assumptions about the system set mainly by the media, which is entirely, supremely false. It would be amazing for a story, any story, to take place in a realistic justice system where the meat grinder is on glorious display. (Public defenders would be good people to interview on this; maybe some ex-LEOs disenchanted with the system)
> Even if you are rich and innocent and lucky, then you will spend a day in jail, and spend thousands on bail and lawyers, and if found innocent you will still have all of it on your record, lost all of that money
Not quite.
If rich you get all your bail money back. If poor you do a bail bond and dont get the deposit for the bond back. Or cant even afford that and stay in jail. (The effects compound because its often not the first time)
If rich, an arrest record means nothing. If rich enough, an indictment or being found guilty means nothing because you don't need employment.
And thats before we talk about fighting the case. Or making the investigation harder.
Its a completely parallel society because the consequences are so different.
>If rich you get all your bail money back.
That is not true. In most places you are NOT ALLOWED to post cash bail, you have to get a bond because it has the effect of outsourcing police-work. No, I'm not joking.
> Even if you are rich and innocent and lucky, then you will spend a day in jail, and spend thousands on bail and lawyers, and if found innocent you will still have all of it on your record, lost all of that money, a day of your life, the abuse of the police officer and jailors, and there are many situations where answering "yes" to "have you ever been arrested" will disqualify you.
If you have your arrest records expunged you are expected to answer "no" to the "have you ever been arrested" question when asked by an employer or potential employer. It's a stupid system. In at least a few states, they're not even supposed to ask, because it's such a dumb question.
Emanuel Fair spent 9 years in jail. He was acquitted.
https://www.seattletimes.com/seattle-news/law-justice/jailed...
The question is never "have you been arrested." It is, always, "have you ever been convicted"
I've definitely seen "Have you ever been arrested and held for >24 hours?".
> So much for innocent until proven guilty.
That's only for people and organizations with expensive legal teams.
I've long had an idea for solving the civil asset forfeiture problem.
It's simply this: any asset seized must go to the general fund, not into a law enforcement fund.
If a local police department seizes cash or a car, that asset goes to the state. If federal law enforcement does the same, it goes to the treasury, not the FBI or ATF or the Justice Department.
This small change would remove the incentive to seize assets for any reason other than stopping criminals.
We also need due-process reforms, but this would be a good start. Government departments should never profit from criminal activity.
Or go a step farther: any asset seized (including money) must be publicly destroyed. Set fire to the defendant's pile of cash in the town square, while everyone watches.
This would remove the financial incentive for seizure and would preserve its punitive aspect, both general and specific deterrence. As a check against wanton destruction, the seizing entity should remain subject to a civil cause of action of conversion (in regular language, liable for taking stuff) in case the defendant (or now plaintiff) can prove that the seizure didn't follow due process, or that the underlying justification for seizure in the first place was unfounded.
Obviously, this suggestion isn't fully baked. But it's worth considering why anyone should benefit from punitive measures such as asset seizure (or punitive damages in a civil lawsuit).
This seems worse. At least today I have a small chance of getting my item returned. The reality is, just don't sieze. It sieze AFTER the trial and conviction.
Or auctioned with the proceeds going towards a small UBI check.
Would be a shame to burn a Rembrandt.
In this scenario, the circumstances that would lead to burning a Rembrandt would be quite extreme. The convicted criminal would have to use the Rembrandt in crime and the punishment would have to be a fine in excess of the value of the Rembrandt.
But besides that: Just because it would be a "shame," doesn't mean it shouldn't be done. After all, some people think it would be fun to burn a Rembrandt.
> This small change would remove the incentive to seize assets for any reason other than stopping criminals.
What about spite?
I had the same thought. Some police have punished citizens for petty reasons and that door is still wide open in this solution. It's still better than what we have now, but it's not perfect.
Perhaps an additional measure could be that a jury of the people should decide if the property is returned to the person or if it goes to the state/treasury. Most people seem to think civil forfeiture is problematic.
It's not a solution. Local police sieze. Hand over to general fund, and somehow, their budget grows.
Yeah, I had the same idea. Someone else pointed out to me how easy it would be for a kick back system to be arranged, with the police stealing money for the general find and being rewarded in return with larger budgets or other tit for tat arrangements. So I changed my mind.
Better simply to not allow it at all.
The solution is to not sieze. It do it after a conviction. And to stop the war on drugs
how about a strong punishment for unjust seizures with an independent oversight board
Or, another idea, for when you're out of luck, furious, and have nothing to lose: https://www.imdb.com/title/tt0120768/
No police that have been a part of any instances of civil forfeiture can possibly be reformed to a point where they should be allowed to hold any position of power whatsoever. This email is a nice smoking gun but every instance of this is the same exact mafia style violence against civilians even if they don’t admit to it in writing each time.
Civil asset forfeiture laws are just begging to be abused. While I understand the original intent, there needs to be greater consequences to those abusing it.
edit I'm not sure of the best way to improve or change this, so would love to hear from others on the best way to make that change possible.
The immediate first thing that should be done is that police departments should have no way of benefiting from the seized cash or assets because it creates a perverse incentive across the board for everyone in the police department to overlook transgressions. It should be held by the county/state and the interest accrued till a judge decides. If it's forfeited, it should go into the county or state public benefits program that only benefits the poorest of the poor, seniors and homeless people.
There is actually proof that this works. Using Felony Probation and Parole in a particular state as an example, at one point it went to the department that ran Probation/Parole. So the Probation/Parole Officers were encouraged to aggressively pursue getting the fees for probation/parole. Then it was changed to go to the states general fund (so the department stopped getting it effectively). MAGICALLY the officers only got encouraged to care about restitution payments and started being very blaise about failure to pay fines and fees.
The obvious thing to happen next cycle from instituting such rules: the benefits program's dedicated budget gets adjusted down by the expected value of forfeitures.
Maybe instead any money collected civil asset forfeiture should be required to be sent to the Federal Reserve where it is destroyed. That should prevent any of these sorts of perverse incentives.
For money that could work. For other assets (e.g. art, anything that has an environmental cost to create it) society may benefit from them being preserved. I guess you could still auction them off and burn the money.
And that's how you get auctions where all the bidders are personal friends of the judical officer.
It just shouldn't exist. A judge can impose such penalties upon conviction, but there shouldn't be a way for police to seize assets like this themselves.
Civil asset forfeiture makes a little bit of sense where it was first used: dealing with the cargo of smuggler's ships. It was almost impossible to prosecute a ship owner who lived across the ocean in Europe, so simply seizing a ship and its smuggled goods was a viable alternative.
Unfortunately it's expanded to all sorts of ridiculous and blatantly unconstitutional seizures in the last few decades.
> It was almost impossible to prosecute a ship owner who lived across the ocean in Europe, so simply seizing a ship and its smuggled goods was a viable alternative.
Such seizures should have the same procedural limitations as arrest of an individual does. Individual procedural limitations:
- Police can arrest you and throw you in jail if they have reason to suspect you committed a crime.
- Within a certain number of days of being thrown in jail, they have to either produce concrete charges against you, or let you go
- While the trial is going on, you can apply for bail to get your freedom.
- You can't finally be thrown in prison until you've been convicted by a jury of peers.
You could apply parallel standards in this situation:
- Police / coast guard could seize a ship if they have reason to believe it's smuggled goods
- Within a certain number of days, they have to either produce concrete charges against the owner, or let them have your stuff back.
- While the trial is going on, the owner should be able to apply for "bail" to get their stuff back. A judge can determine if it's worth the risk or not, just as they do for prison cases
- The stuff can't be finally taken away until the owner has been convicted by a jury of peers.
Adding in something like, "All seized goods are distributed to the poor" or something rather than "All seized goods go to the department which seized them" would go a long way towards ending this sort of abuse.
This doesn't seem to be responsive to the point made by the GP: if the owner is in another country, perhaps one that doesn't have extradition to the U.S., then there's not going to be a trial. The U.S. doesn't have in absentia trials except in extraordinary circumstances like a defendant fleeing the country mid-trial.
Looking briefly through the "habeas corpus" stuff, it looks like the way it technically works is this:
- Police arrest you
- You can request a Writ of Habeas Corpus
- The judge then issues the Writ
- The police either have to accuse you of a crime or let you go.
You could do the same thing wrt the stolen goods:
- Police sieze contraband
- Owner requests Writ of Habeas Stuffus
- etc
In the case of an owner in another country and is pretty sure they'll get arrested if they show up to claim their stuff, then they'll choose to leave the stuff where it is rather than apply for a writ. After a year, the police could consider it forfeit by default.
In rem jurisdiction over property is the exact basis of civil forfeiture - this isn't a solution, it's the problem.
I think gwd's point is, the "thing" wouldn't be the subject of a case. It would be siezed as evidence of a crime, with the subject of the case being the John Doe owner. If the owner is identified/comes forward, they must be charged with the crime. If not convicted, their property is returned. If no owner is found after some period (say, a year or more), the "thing" is considered abandoned property. Basically, eliminating "in rem".
The thing about civil forfeiture is it's not about contraband; the property is usually perfectly legal in itself, however, there is an alleged criminal nexus.
The situations it's intended to address are things like this:
Bob meets regularly with known members of Mexican drug cartels, but doesn't actually seem to be involved with the illegal sale of drugs. Bob files his taxes every year and makes a modest income. However, every day, Bob drives over the border at El Paso in his car with a million dollars of cash in a briefcase.
If the DEA stops Bob, he asserts that the cash is his. Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob?
A lot of reasonable people think the answer to that is "yes"; but it is apparently hard to create a mechanism that doesn't also result in the police confiscating your car because your friend that's riding with you has $500 of cash, a bunch of empty baggies in his pocket, and prior drug dealing conviction.
> If the DEA stops Bob, he asserts that the cash is his. Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob?
Obvious to who?
If it's so obvious then charge Bob. If it's not then no confiscation.
Why do we want some weird half conviction? And if do you want that then do a plea deal.
> Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob? A lot of reasonable people think the answer to that is "yes";
No, those people are absolutely not reasonable! Those people want a magic world where we have crystal balls that tell us exactly who's innocent and guilty. That would certainly be nice, but that's not the world we live in.
It's frustrating when the guilty go free because of the rules we have in place to protect the innocent; but those rules didn't come out of nowhere. They are the result of the hard-won experience of thousands of innocent people being punished. If you remove them then innocent people will be punished again.
No, there shouldn't be, because if you haven't convicted Bob of a crime it's not "obvious profits of crime". It could be perfectly legitimate and you haven't proved otherwise. You can certainly seize the cash as possible evidence of a crime, but if you don't charge Bob then you've got no justification to penalize him by keeping the cash, and it should go back to him.
You're missing the point here.
I was attempting to describe a situation where, if the law permitted it, you could bring in a jury and let a prosecutor make the case that Bob's briefcase constitutes the proceeds of crime, and have a solid chance of success at the "beyond a reasonable doubt" standard of proof which is required for a conviction.
But you can't prosecute a briefcase full of cash; and Bob's actions are not in themselves criminal. Without some kind of asset forfeiture system, nothing can be done.
There's a pretty reasonable public policy argument that this is not an acceptable situation.
I don't think I'm missing anything. You want to be able to claim the briefcase as proceeds of a crime, without actually prosecuting a crime. That is unreasonable. If, as you say, "Bob's actions are not in themselves criminal", you've got no justification to take his stuff. You may think it's proceeds of a crime, and you can treat it as evidence of a possible crime. But if you haven't got enough evidence to convict Bob, then you also don't have enough evidence to keep his stuff. Pretending otherwise is a mockery of justice.
> you could bring in a jury and let a prosecutor make the case that Bob's briefcase constitutes the proceeds of crime ... But ... Bob's actions are not in themselves criminal.
So you're saying:
* You have evidence enough to prove beyond a reasonable doubt that Alice, the owner of the cash, has committed a crime, and that this cash is the result of that crime
* Bob himself hasn't done any crimes at all.
We can't prosecute Alice because she's in Mexico; and we can't prosecute Bob, because he hasn't done anything wrong.
Well then, seize the cash, and let Alice come for it. If Bob claims it's his and applies for a writ, show the evidence to the judge that Bob isn't actually the owner. If Alice applies for the writ, present your case against her. If she doesn't come for it after a year, treat it as abandoned property. Everybody gets due process.
If you don't have enough evidence to prove that Bob isn't the owner, you don't have enough evidence to convict Alice of a crime, and therefore it's a violation of human rights to take her money.
What you're describing is functionally exactly the same as civil forfeiture that everyone is complaining about!
Civil forfeiture works fine for this case, which is the whole point, because indeed neither will Bob be able to demonstrate it's really his, nor will Alice be arriving to collect.
Where it all goes wrong in other cases is "Bob claim it's his and applies for a writ". i.e. it becomes Bob's responsibility to prove his ownership in court, rather than the government's job to prove anything at all.
i.e. the government performs an administrative seizure without any proof obligation, and then reverses the burden of proof onto the person from whom the assets were seized
In the real world, for small-time asset forfeiture, the amount involved is too small to be worth the effort; or Bob often doesn't have the money for a lawyer to bring that action; or this all happens while he's traveling away from home, so the court appearances are going to involve air fare, time off work etc. Or Bob is presented with the problem of proving something that is difficult to evidence, like "I have been saving this shoebox full of cash in the closet for a long time for my daughter's quinceañera"[1].
Ultimately, yes, due process is available but it's not free, it's not low-friction, and it's many a time not worth it.
[1] https://thehill.com/opinion/criminal-justice/578798-the-high...
> Where it all goes wrong in other cases is "Bob claim it's his and applies for a writ". i.e. it becomes Bob's responsibility to prove his ownership in court, rather than the government's job to prove anything at all.
I said at least twice that it's the government's job to prove that it's Alice's and not Bob's.
You proposed a hypothetical scenario where there is plenty of evidence to prove beyond a reasonable doubt that this cash was the result of a crime by Alice. So, when Bob comes and claims the cash is his, present that evidence. It's not a matter of Bob proving that it's his; it's a matter of Bob proving that this "beyond reasonable doubt" evidence you have of Alice's crime is bogus.
We're getting really into the weeds here; I'd expect a lot of the precedents to be established by a series of cases. But I would think that a reasonable starting point would be that possession implies ownership by default; and that if the government wants to prove that the money that was in Bob's possession is not Bob's, then the burden of proof is on the government to prove that. In your hypothetical scenario, there is plenty of evidence that the money is not in fact Bob's, so it's not an issue.
If it turns out the evidence that the money is really Alice's drug money is actually pretty thin, that's a reason Bob should get the money back.
I think you are conflating "forfeiture" and "seizure".
> Since it's not obvious that Bob has actually committed a crime, shouldn't there be some mechanism to allow the obvious profits of crime to be confiscated without having to convict Bob?
Absolutely-fucking-not.
Law enforcement should never be able to seize property without the charging of a crime when they know who owns the property.
Unfortunately I can't understand what you're saying (perhaps beacuse I'm missing the appropriate background). Can you please explain what you mean?
Where courts make a "thing" rather than a "person" the subject of a case, this is called "in rem" (which is Latin for "against a thing").
The legal theory which underlies civil forfeiture is "in rem jurisdiction" where it's not the owner, but rather the property, which is the defendant in the case. If the case is at a Federal level, then it will be something like "United States of America vs. $50,000 in United States currency".
The standard of proof is not at the criminal standard ("beyond a reasonable doubt") but instead the civil standard ("preponderance of evidence").
Right, so the sibling reply was correct. The person I was replying to said that the "problem" they were trying to solve when they invented the practice in the 1800's was things like seizing smuggled goods off a ship, where the owner is overseas and you don't have an extradition treaty with them.
So, seize the goods in anticipation of convicting the owner. Make a law that says the owner can apply for a writ, and a case must be made. If the owner doesn't show up, then the goods are abandoned property. That allows the case described to be prosecuted, while not opening up the insane abuses we've all heard so much about.
The goods should be stored until the owner comes to claim it in person. If the person has committed a crime that the police feel there is enough evidence to arrest them for they can arrest them at that time. If the goods are left and unclaimed for a period of time (30 days? 60 days? 6 months) then the goods can be considered abandoned the dealt with accordingly. However, if someone is present with the goods and claims to be the owner (and the police don't have evidence contrary to that) then the goods should continue on with the current claimed owner.
> It was almost impossible to prosecute a ship owner who lived across the ocean in Europe, so simply seizing a ship and its smuggled goods was a viable alternative.
why not? prosecute them normally, if they show up then the trial proceeds as usual, if not then convict them in absentia and then forfeit the goods. why does this require a whole new system that bypasses all the constitutional rights for domestic citizens?
Because the US does not do "in absentia" trials. It's why Snowden has never been convicted; he fled before he could be charged. And now that he's gone, the US can't do anything if Russia won't extradite him.
In absentia criminal trials are almost unheard of in the U.S. as a result of the due process requirements in the Fifth, Sixth and Fourteenth Amendments.
You are describing a criminal situation.
The only legal way to stop abuse of authority is if those with a higher level of authority put the abusers in handcuffs. So in this case the state prosecutors need to go after the town officials. If the abuse is at the state level then the FBI needs to come in and start arresting people. Otherwise, why would they stop?
Local authorities work with Feds to do this, however. Civil asset forfeiture has been banned in various localities, but is still legal federally - so non-federal police arrange to have a Federal officer (DEA etc) on hand to take care of that part, and then a certain percentage is kept by the federal government and the rest given to the local authorities. So first it would need to be banned federally.
It's a good thought exercise for the "trust the experts" crowd. Reading the text of the constitution, a document designed to be understood by the people it would apply to, makes this a clear and obvious violation yet our appointed legal experts apparently don't see anything wrong.
The constitution is contradictory. It isn't a perfect document written on a stone tablet by god.
And legal systems of any nation are more than just the constitution.
So the idea that you can just read one clause in the constitution and therefore clearly know what is allowed and isn't (also, even the interpretation of that clause is not as easy as you are portraying here) is absolutely false.
> And legal systems of any nation are more than just the constitution.
In any case when a legal system clashes with the wording of the constitution it is that legal system that is wrong. That's what "highest law in the land" means. That is the entire purpose of having a constitution.
Experts love to hide behind "it's complicated!" but in this case they have nowhere to hide.
What part of the constitution do you think it clashes with?
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Pull over a guy, take the paper cash out of his wallet without charging him with a crime. No amount of wordplay can make that constitutional in a reasonable persons mind.
I do think CAF as it's currently implemented is unconstitutional, but this clause doesn't make CAF as an idea unconstitutional. The entire point (originally) was to secure assets that you have probable cause to believe are funding or proceeds from crime. So you find someone with a trash bag full of pills and $300k in cash in their trunk after a legal search, you need a process to handle that money.
That process has existed since before America has, find probable cause someone is committing a crime, detain the suspect (you can get a warrant first but this is more common), get a warrant (can be done over the phone in a couple of minutes), put the cash away somewhere safe until the trial is over. If they are guilty of that crime and that cash was involved, great! If not you have to return it.
What we are talking about here is just taking the cash, sending you on your way and spending it, sidestepping your legal rights like access to a court provided attorney or a jury trial. It probably doesn't do much to prevent crime even, the fentanyl runners would much prefer you just take the cash they have on them and let them go.
But the way it works today is the "probable cause"is the fact the money is over 10k. No charges end up being filled, or they end up being dropped. But they don't give you the assets back. Even after proving they are legitimate. You still have to fight for it. As an idea civil asset forfeiture is unconstitutional. Because it was designed to be an end around the constitution.
Take it as evidence until the owner goes to trial. If there is no speedy trial, return it to the owner.
Please define reasonable in legal terms.
In what context can a law disagree with the Constitution and still be legitimate?
When interpretations of the meaning of the Constitution differ the one last held by the Supreme Court has the (current) final say. The constitution is by necessity an interpretive document because we don't have a Constitutional Oracle to perfectly map concepts and words for centuries back onto the technological landscape of today.
"Shall not be infringed" is a super common refrain among the 2A crowd but taken hyper literally you couldn't take guns away from criminals actively in prison.
I think civil forfeiture is far outside the bounds of what could be condoned under the Bill of Rights but my interpretation only matters at a distance of influencing representatives to pass laws or the SC to rule differently.
Until it gets overturned. The problem is they don't let things go to trial to get it overturned
Libel law disagrees with the Constitution by a literal reading. So does banning human sacrifice in religious services. We still treat them as legitimate.
Libel is a civil matter. The government can't charge you with libel.
The government provides a judge and courtroom, decides the result, and enforces the judgement.
If you prefer a criminal matter, swap it out for fraud.
>The constitution is contradictory.
Could you give an example of this?
The same document talks about the "Blessings of Liberty" while establishing slaves as 3/5 of a person for Congressional representation?
It's a little hard to reconcile slavery with, say, the Fifth Amendment's prohibition on being "deprived of life, liberty, or property, without due process of law".
> slaves as 3/5 of a person for Congressional representation
You would've granted slave owners more votes? You feel they were under represented? If I lived in a state alone with a enough slaves I should have been able to dictate policy for the entire nation?
I think their concern was more the official endorsement of the practice of treating humans as private property, in contrast with a number of amendments providing individual rights (aforementioned property excluded).
They should have made that clear since the complaint reads as being largely about the 3/5 part.
Very strange that you went that direction instead of the more obvious "if slaves are property then they don't count at all".
I'd count them negatively personally but the grade school arugment made there has to die, the people who wrote that did so with the hopes of abolishing slavery in the future. It's exactly the opposite of how it is framed.
> You would've granted slave owners more votes?
I would have not had slaves.
That's really rich coming from a proponent of federal authority/power.
The alternative here was the articles of confederation or nothing and the states go their own ways as countries, not some fantasy in which the southern states torpedoed their own economies out of some love of the nation.
The constitution and the included 3/5ths compromise most certainly brought about the end of slavery much faster than taking a hard line circa 1790, or anything else that tipped the scales away from the united states forming a national identity would have.
You can say "this was the compromise they had to do" if you like. It's not even a bad argument.
You can't pretend it's not contradictory, though, in a document talking about rights and liberty, and that was the question posed.
The original was contradictory, it was the result of a political compromise. The current version is not - not legally anyway. Three new amendments to the constitution made the earlier contradictions about slavery a dead letter of no legal effect.
That is what amendments do - they change things, and those ones came at no small price. So what is the point about complaining about a problem that six hundred thousand people already lost their lives in a successful attempt to resolve? Slavery has been illegal in this country for a century and a half.
> while establishing slaves as 3/5 of a person for Congressional representation
No argument against your point, but a similar[0] Constitutional issue persists today:
Residents of Wyoming are established as 3.23 people for Congressional representation.
Residents of California are about 4/5ths of a person.
[0] Nothing is similar to slavery, and specifically here the fact that the voting power of these 3/5ths allocations was given to people who did not represent the interests of the humans that comprised the allocations in the first place!
> > while establishing slaves as 3/5 of a person for Congressional representation
> No argument against your point, but a similar Constitutional issue persists today:
Yes, a very similar issue does exist, but the one you are pointing to is not similar.
> Residents of Wyoming are established as 3.23 people for Congressional representation.
The unequal weighting of population for representation in (in descending order of distortion) the Senate, Electoral College, and House as a whole is not really similar to the awarding of extra weight to those who are permitted by the State to vote specifically for people denied liberty as was done in the 3/5 compromise.
The fact that those disenfranchised by felony disqualification are counted—and as whole persons, not 3/5—especially given the way targeted criminalization and penal servitude directly replaced chattel slavery, is, OTOH, a very similar issue.
I believe you're expanding on my footnote, and I agree.
In addition to felons (permanently disenfranchised in most states), you have temporarily-disenfranchised prisoners, and prison-based population distortions that favor some districts over others.
You could probably make an even greater comparison between the voting powers of:
WY and CA already start at a 4:1 disparity.I don't see how you can count a illegal immigrant who can't legally hold a job or have a bank account as a free person either.
How do you understand the original intent?
> Civil forfeiture allows police to seize — and then keep or sell — any property they allege is involved in a crime. Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.
--[1]
They don't need to prove or even charge you to take property from you. It's robbery.
The law needs to require a warrant issued by a judge to sieze the property. The property siezed needs to be stored as evidence, kept separate from other budget items in law enforcement organizations so that it cannot be used to cover expenditures (through auction or otherwise), be under the same sort of provisions as indefinitely holding individuals without charges, be returned in total when charges are not brought to trial or when a trial results in an acquittal, and the material should be subject to destruction after a guilty verdict and appeals are exhausted. Basically, the siezing organization shouldn't be able to use the material proceeds as part of the organizations' operating budgets at any time unless the material is voluntarily submitted by the convicted parties in lieu of levied fines after a conviction. It is evidence, not a funding source.
I'm not saying that the government should not be able to take illegitimately gained property from convicted criminals; but that the incentive to do so for material gains by the government without conviction is rife with the potential for abuse as things currently stand.
[1] https://www.aclu.org/issues/criminal-law-reform/reforming-po....
Seems a simple way would be that people who have assets seized should get the greater of a) $20k OR b) 3x the value of items seized AND c) attorneys fees
At least this allows 1) people to litigate smaller seizures 2) creates disincentives for the more abusive cases
I appreciate that you're offering a solution. I think the proposal would put the burden on tax-payers.
As it should be if the public wants the assets sized.
Someone should have to pay for the collateral policy damage. It seems that the burden should to those who voted for the policy opposed the innocent victims.
Local governments simply cannot be trusted to dole out any punishment that they benefit from financially. We need to fund our courts from taxes, and require punitive fines to be payed by destroying the money instead of by the prosecutor pocketing it.
A great video on the subject: Civil Forfeiture: Last Week Tonight with John Oliver
https://www.youtube.com/watch?v=3kEpZWGgJks
The original intent was to stop drug dealers without having enough to convict. It is difficult for dealers to deal if they lose their car or boat or money. And apparently it is "obvious"the items came from ill gotten gains.
The government just passed a computer fraud act where they differentiate between good faith use of the term "security researcher" and bad faith. I think we can do the same with civil asset forfeiture, making the penalties immense.
There's always the route of undoing civil asset forfeiture entirely, because it makes zero sense to anyone that encounters it or to our justice system.
This is also a good time to point out: when states and the federal government disagree, without mandate for state agencies to follow state law (weed is legal in Michigan) this is the result. The citizens are who pay the price for disagreement, and that mechanic especially needs to change.
Edit:
Fair, they passed "guidance". I'd encourage anything at this point. Doing nothing is for the birds.
No they didn't. The justice department announced their interpretation of that policy and how they'd use discretion.
You want meaningful reform on anything within 500 miles of this topic from the legislature? Good luck.
They can use discretion on civil asset forfeiture too, if they want. Something would be better than the current approach, which is feeling more cartel-esque by the year.
Nihilist and fatalist approaches like yours make the outcome certain. If I show up, speak like a big boy, and provide evidence someone might listen. This is the difference.
It's not quite as simple as "they can use discretion", because there is no single "they". There's a boatload of states and the federal government, and states have sovereign power on these topics, and states that have outlawed the practice have collaborated with the federal government through "equitable sharing" practices.
Something at the top could help.
> They can use discretion on civil asset forfeiture too, if they want.
That's how it works already. That's also why they can do it to whoever they like.
Right, leaving discretion without oversight is a massive gap. I am advocating that something be done. What are you advocating?
But this is literally the first time in this thread that you've mentioned "oversight." Perhaps you're advocating that something be done, but I cannot tell what it is.
It seems like you've been suggesting just that "the relevant authorities should use their discretion." That doesn't strike me (or, apparently, others) as much of a reform, since that exactly describes the status quo, which does not seem to be working.
What is the role for oversight that you're suggesting? Who does the overseeing? How?
kodah was saying we should try something
>I'd encourage anything at this point.
fennecfoxen was advocating that it isnt worth trying something
>You want meaningful reform on anything within 500 miles of this topic from the legislature? Good luck.
The goalposts were clearly moved from if even attempting reform is a waste of time, to having a workable solution
excuse me; i commented on the legislature's allergic reaction to actually making changes to the law in this area, noting the difficulty of the task which you have chosen.
I certainly read that as defeatism. Is there an alternative avenue for reform outside the legislature, independent of how difficult it is?
Legislatures don't want to make any change unless the people want it. People have to demand it.
> This is also a good time to point out: when states and the federal government disagree, without mandate for state agencies to follow state law (weed is legal in Michigan) this is the result.
Marijuana had nothing to do with this. The police needed a pretense for the civil asset forfeiture, but nothing under the law even requires that the pretense be true, there are no consequences for just lying about it, etc.
People really need to get familiar with civil asset forfeiture. It's done to all sorts of people for all sorts of make-believe reasons by police.
I suppose “write your representatives”? This is an area with reforms actively being proposed, and it feels like banning this stuff is inside the Overton Window.
Eg https://reason.com/2020/12/17/justin-amash-introduces-bill-t..., https://ivn.us/2017/09/13/amash-gabbard-lead-surprising-vict....
The police willing to commit this crime under color of law are so incurably corrupt that changing the law wouldn’t stop them. They will still take your stuff, they just won’t give you a receipt.
Police in California siezed an armored car after laws being passed that explicitly made this illegal. It being legal makes it easier for them, but they don't stop at what is legal.
https://www.google.com/amp/s/www.forbes.com/sites/institutef...
Maybe a dumb question, but how do the police seize a building? Assuming this just means they barred, under threat of arrest, the owners from using the property?
When the police do anything it is ultimately an exercise of raw force. They come, evict you, and change the locks. The only question is do they have legal justification for their actions that will stand up in court? Warrants, judicial sanction, etc. in advance is highly advisable. This is why we are taking your property, go hire an attorney if you disagree.
It would mean they had ownership of the building transferred to them.
Not excusing the extortion here, but if you run a high-profit gray-area business, it can be a good idea to butter up the local cops.
There are many ways to do so legally, from equipment donations to contributing to the sheriff’s reelection campaign. For 0.1% of profits you can get them on your side in some situations that might come up:
- you get burgled
- federal law enforcement takes an interest in your industry and asks “who should we look at in your jurisdiction?”
- you need a flexible interpretation of local zoning or fire codes to run your operation, especially if cranky neighbors might complain about noise or smell.
Start with small contributions proactively before they make trouble.
You're normalizing corruption here. Specifically, recommending bribery. That can land you in more hot water than whatever "gray-area" business you're running.
Not if you make sure all of the bribes are legal, or else lobbying wouldn't be an entire industry.
edit: In Illinois, at least, for it to be bribery there needs to be proof of an explicit quid quo pro e.g. a recording of you saying "If you give me X, I will do Y."
Note that "I'm going to give you X," "What a coincidence, I'm going to do Y" does not count.
You're describing flaws in the legal system that lead to corruption.
Also, holding a Concealed Carry license automatically gets the cops to like you. Show it when you're stopped (and tell them that you're not carrying unless you are)...
Philando Castile would like a word.
Yes, you have to work your way UP to two police cars.
Very little about the War on Drugs was/is legal let alone moral. But just like "Torture" was gifted a pass during the Bush years, we ignored the reality of the "War on Drugs" in order to pacify the most frightened and ignorant among us... Oh and enrich the makers of fear, weapons and armory.
https://news.ycombinator.com/item?id=17395675#17398314
Sorry if I'm being repetitive ^^^, but seeing the impact of civil forfeiture first-hand really shook me. I still get angry, and it took place 30 years ago!
Is there a map of civil forfeiture intense areas so we can all avoid living and starting businesses in those areas?
It's legal in all 50 states, good luck. :)
Just not as intense everywhere
I'd bet a lot of money that someone related to, friends with, or owed a big favor by, one of the officials that would have had to sign off on this is deeply involved in the local weed industry.
Between the insane capital required and level of asinine compliance stuff and box checking you need to do to get into the legal weed industry more or less precludes those people from being "easy targets". Your local dirt mover is going far less likely to be able show up in court with a "and that's exactly where each dollar bill came from" accounting than your local weed grower.
I would imagine it is worth registering a holding company that would ultimately own the property, and then another LLC that is responsible for renting and maintenance... and then just rent it to yourself.
I don't know if this would make it more difficult for a seizure to occur but it seems that it would since the physical person is no longer the "owner" or even responsible for operating.
If the assets are worth any significant amount, it's worth protecting them and yourself from the law... as crazy as it sounds.
In this case it wouldn’t matter as the city would just seize it from the llc. They never charged anyone with a crime so they could just not charge the owners of the llc.
I spent a summer in Vietnam 12 years ago.
Police showed to my uncle’s cellphone store. Said their daughter’s IPhone was broken and left a note to an address of a different cellphone shop.
You’re expected to go to that shop, buy the phone in the name of his daughter. They probably won’t actually collect the phone. They will return it for cash.
If you don’t comply, the police will invite your customers to go for a ride around the block.
Jesus, the headline made me think this was done by citizens. I hate civil asset forfeiture so god damn much.
https://www.aclupa.org/en/issues/criminal-justice-reform/civ...
“The Town” sounds like “citizens”?
yes, citizens live in towns
What an absolute joke. And I see this is in Detroit - are they trying to chase investment away?
There's been a lot of outside money invested into legal marijuana businesses in Detroit, particularly along 8 mile road (brand recognition). It's an otherwise poor area, so I could see local police trying to get a taste from these new profitable businesses. They're not going after typical local businesses with tight margins and a neighborhood customer base.
They’re attacking the best thing that’s happened to their town in decades. All the best to them
The first time I learned about such a thing I was floored. I couldn’t fathom how that could be legal and how this didn’t get struck down as illegal by the courts. I am real curious to know if this went to courts and corraborted there.
Reminds me of the ATF issuing Leathermans with "ATF Always Think Forfeiture" engraved on them.
Any forfeiture, or any supposed necessary violation of individual rights, should require investigation, and should cost the organization behind it, regardless of outcome. This may seem difficult to work, but incentivizing the opposite is completely absurd, and makes corruption inevitable.
As someone that has had to deal with the Wayne county legal system on a consistent basis at work, this doesn’t at all surprise me.
“Nice building ya got here; it’d be a shame if something happened to it.”
Legalizing marijuana federally cannot come soon enough.
Nothing about federal marijuana legalization would have prevented the local police from performing civil asset forfeiture.
You're right, but I think the mentality around marijuana legality is colored by the fact that marijuana remains illegal federally, marijuana legality is so new in many places, and marijuana isn't fully unrestricted even when "legalized". This page has a bunch of tables regarding the legality of recreational marijuana in Michigan: https://www.clickondetroit.com/news/michigan/2022/05/19/a-gu...
So while I don't think they should have done what they did, I'm not shocked that cops walked into a building full of marijuana plants and thought "we have to bust these guys". I think if marijuana became completely legal and unrestricted nationwide, cops would probably get it - "welp, I guess this is legal now".
Yeah I guarantee there will be way less of this bullshit once it’s 100% legal.
Civil asset forfeiture is just theft, and the police who engage in this behavior are happy to steal from all sorts of people engaged in all sorts of perfectly legal activities. It has literally nothing to do with marijuana.
This is called "extortion"
Marvin Heemeyer was right
Man, civil forfeiture in the United States is really something else.
This seems like a nightmare.
Related video by John Oliver on Last Week Tonight regarding Civil Forfeiture https://www.youtube.com/watch?v=3kEpZWGgJks
Just another gang.
I would love to hear any alternatives from the city on this one, but we won't. It's hard to conclude for certain that they were wrong (IE they didn't actually believe a large scale illegal operation was being operated), although I do agree most of the presented evidence (which includes an email, in my mind the absolute most damning part of the evidence) suggests that the city (not the police) were conducting a shakedown.
Possibly except that they returned the building the day after the article was published.
You don't really have to go much further than the source they reference multiple times - WXYZ Detroit.
> being promoted by Reason, which has a poor reputation for bias in reporting
They're a LIBERTARIAN magazine, it says "free minds and free markets" right on the mast head. They're 100% up front about their view of the world. What do you really expect?
This is like complaining that Jacobin is written by a bunch of socialists.
> This is like complaining that Jacobin is written by a bunch of socialists.
No, it's like suspecting that an article might be distorted to serve socialist ideological interests when Jacobin is the only source. Which is, of course, what any sane person would do, even if they share the outlet’s ideological orientation.
It just isn't a very interesting critique in and of itself. If the OP was pointing out how their ideological outlook influenced the facts presented in the story, or how they left some complicating factor out, then it would be useful. However C.J. Ciaramella, the author of the piece has a long history and good track record of reporting on police misconduct, and civil rights abuses. Moreover the article is covering reporting originally done by WXYZ Detroit, so it not even originally from Reason, they just picked it up for their audience.
My overarching point is that unless you can point to the ideology of the publication negatively influencing the reporting it's just lazy and useless criticism.
> This is like complaining that Jacobin is written by a bunch of socialists
Which you can expect to see in the comments whenever it’s posted on HN as well.
See my other response here[1], but just pointing to the ideology of the publication as a form of criticism is substance-less and lazy.
[1]https://news.ycombinator.com/item?id=31449663
Too bad China can't sanction you for such an abusive practice.
What's the connection? This comment went right over my head.
The US sanction other countries for bad stuff they are doing... he wants China to join the sanctioning party so that they can help Americans?
We're getting very close to the flip, when the US will start complaining that China's sanctions on it are inhumane and unfair.
Get most non-US corporations to ban American customers with little or no heads up, across all their SaaS, domains, bank accounts and when they complain here on HN, tell them "you don't have it that bad, it's war" etc.