More civil forfeiture

[MechAg94]

As bad as asset forfeiture is, a credit line is not an "asset" to be seized IMHO.  I'd think credit cards are safe.  I'd also think retirement accounts are safe.  

One I would worry about is back when I had a home equity loan they offered me an ATM card linked to it.  It seemed like a bad idea, not how I was going to use the loan, and declined it.  I could see their fancy machine seeing this ATM card linked to that account and interpreting it as a checking account, rather than a line of credit.

All that said, isn't this (right now at least) just for pre-paid and gift cards which are in the grand scheme of things like carrying cash?

I tend to agree that this will mostly be targeting funds that are "in hand" such as pre-paid cards and ATM cards.  IMO, that is bad enough.  My concern would be if they are able to make this stick, would they then push the limits further in a few years. 

[MechAg94]

I was trying think of what it would take to control asset forfeiture down to keep them honest (instead of getting rid of it).  The only option I could come up with is 1)they have prove it is funds from a crime, 2) if you get your money back, they have to pay you triple, and 3) they have to compensate legal fees and costs of recovery.

I am still not sure it is enough, but it might make it more worthwhile to recover even small amounts and easier to get representation to help.

[Ben]

I was trying think of what it would take to control asset forfeiture down to keep them honest (instead of getting rid of it).  The only option I could come up with is 1)they have prove it is funds from a crime, 2) if you get your money back, they have to pay you triple, and 3) they have to compensate legal fees and costs of recovery.

I am still not sure it is enough, but it might make it more worthwhile to recover even small amounts and easier to get representation to help.

I like the triple damages.

Also, as mentioned above, seized funds/goods should never go to the seizing agency, or to LE in general. They should be designated to something totally different, like the library, or medical services or something.  If the money is going to go to new computers for the library instead of a freakin' MRAP, I suspect around a 75% drop in seizures.

[RevDisk]

That's actually an interesting point. How do banks handle that now?

They get paid. If govt seizes a house with a mortgage, the bank gets paid the balance of the mortgage with conditions. Essentially, any of the mortgage up to the fair market value of the house.

Page 9: https://www.treasury.gov/resource-center/terrorist-illicit-finance/Asset-Forfeiture/Documents/redbook.pdf

Hence why banks have no problem with asset seizure. Not saying they prefer it, but the US govt is usually less of a credit risk than your average homeowner.

As a reminder, if the government seizes your assets, you have to pay court costs at a minimum of tens of thousands, no public defender assistance either. Technically, the police seizing the assets press charges against the inanimate object. You have to sue on behalf of that third party and prove your standing to sue in place of your boat suing. If you successfully do that, you have to prove the assets' innocence. If the feds seize your assets and you successfully challenging a civil forfeiture proceeding under federal law, you get mandatory award of attorney’s fees. That's the good news.

The bad news is, not all state and local courts work that way. If the local cops steal your firearms or car and you win them back, you may not successfully be able to get back attorney fees.  As you can imagine, quite a few states and local entities prefer the odds be titled even more in their favor.

How this is remotely allowed is beyond me. There's no due process, there's no presumption of innocence, the odds are astronomically against the citizen, etc

[AJ Dual]

I like the triple damages.

Also, as mentioned above, seized funds/goods should never go to the seizing agency, or to LE in general. They should be designated to something totally different, like the library, or medical services or something.  If the money is going to go to new computers for the library instead of a freakin' MRAP, I suspect around a 75% drop in seizures.

Some states have Victim Compensation Funds.

[MechAg94]

I like the triple damages.

Also, as mentioned above, seized funds/goods should never go to the seizing agency, or to LE in general. They should be designated to something totally different, like the library, or medical services or something.  If the money is going to go to new computers for the library instead of a freakin' MRAP, I suspect around a 75% drop in seizures.

They have done that in Texas with a number of traffic fines due to speed traps, etc local agencies were doing to bump their funding.  It was targeting outsiders so the locals weren't affected.  The money generally goes to the state general fund I believe which takes away the incentive for the locals.  

On the compensation for legal costs, I think that should also include damages/costs due to losing the funds.  If they put a small shop out of business because they seized their money without good reason, they should have to pay damages.  If they have to give it back, it wasn't a good reason.

[Balog]

I like the triple damages.

Also, as mentioned above, seized funds/goods should never go to the seizing agency, or to LE in general. They should be designated to something totally different, like the library, or medical services or something.  If the money is going to go to new computers for the library instead of a freakin' MRAP, I suspect around a 75% drop in seizures.

That's generally how it's set up, but budgets are fungible. If the Bumfvck East Dakota PD brings in $XXXk in seized funds to the general ledger, they can count on receiving a commensurate (even if not 1 to 1) bump in their own budget.

[Ben]

How this is remotely allowed is beyond me. There's no due process, there's no presumption of innocence, the odds are astronomically against the citizen, etc

That should be the caveat thought for this entire thread. It's something we shouldn't have to be discussing at all outside of the theoretical.

[Balog]

The whole thing could be fixed by simply changing it to criminal instead of civil asset forfeiture. As part of the conviction, the prosecutor has to prove beyond a reasonable doubt that the funds/goods etc were acquired with illicitly obtained funds or were directly used in the commission of a serious felony (to stop the "He provably used his car to commit this traffic offense so we're seizing it.") Done.

[MechAg94]

The whole thing could be fixed by simply changing it to criminal instead of civil asset forfeiture. As part of the conviction, the prosecutor has to prove beyond a reasonable doubt that the funds/goods etc were acquired with illicitly obtained funds or were directly used in the commission of a serious felony (to stop the "He provably used his car to commit this traffic offense so we're seizing it.") Done.

IMO, that is not enough.  Criminal "evidence" could be seized and held for quite a long time while they decide whether or not to press charges and then longer if they do press charges.  Even if the charges are bogus, you could still be without cash or property for quite a long time. 

[Firethorn]

And I know it isn't that difficult to prove that the money was obtained by legal means, but the burden should never be on the accused.

Isn't that difficult?  I've heard that it costs tens of thousands in legal fees to do so!

I mean, how can I 'prove' the money in my bank account didn't come via illegal means?  I mean, sure, most of the deposits are from my employers, but what about the other deposits?  How do I prove that the occasional deposit isn't because I have a minor drug trade on the side, rather than selling stuff on craigslist?

How I prove that, despite the $200 withdrawal last week, that the $100 in my pocket isn't from that money as opposed to drug proceeds, my already having spent the $200?

All that said, isn't this (right now at least) just for pre-paid and gift cards which are in the grand scheme of things like carrying cash?

That's what I was thinking.  A "gift card" is a lot easier to hide than several hundred dollars, can carry thousands, and until now was less likely to be seized, thus safer for the crooks.  Hell, give the 'numbers' to an accomplice and if you're arrested with the physical cards, they could retrieve the funds.

That's actually an interesting point. How do banks handle that now?

They try to only target homes with significant equity.

As for seizing houses, one 'landmark' case I remember is that the grandson of a woman was running from the cops over drug related stuff.  He cut through her house and was caught in the back yard.  No drugs were found in the grandmother's house.  When the cops were chasing him, she pointed him out, not showing any approval of his chosen activities.  He didn't live there, and hadn't been there regularly for years.

Despite this, they confiscated her house because it was associated with the arrest, and therefore him.  It ended up reversed, but the people in charge of deciding what to seize still said it was perfectly inline.

[cordex]

Civil asset forfeiture is unconscionable and should be illegal.  As far as I can tell it already is according to our Bill of Rights.  When I saw this article, my first thought was that I rarely use my debit cards anymore, and maybe I shouldn't carry them at all.

Three details that really get me steamed:
1. When someone tries to fight Civil Forfeiture, states will often hire local attorneys to handle these cases for a cut of the theft.  Those attorneys have every reason to fight for the money and absolutely no incentive to seek justice.
2. Police agencies in states which have enacted laws requiring that little or none of the assets seized go back to police can sometimes get around the limitations by seizing the property under the state statutes then negotiating with the rightful owner to settle out of court.  Any settlement can go straight to the agency instead of being distributed as the state requires.
3. If they still want to get around state laws the federal government has a program called equitable sharing that will allow a local agency to seize property under federal civil forfeiture statutes, then will split the take with the seizing agency.  State laws need not apply.

It doesn't matter that I'm unlikely to ever get hit with this, it is scary as hell.

My impression is that law enforcement is riding a thin line on this one, trying to extract as much value as possible from it without risking too much bad press.  One sufficiently mediagenic case and their golden goose could go away.

[Balog]

IMO, that is not enough.  Criminal "evidence" could be seized and held for quite a long time while they decide whether or not to press charges and then longer if they do press charges.  Even if the charges are bogus, you could still be without cash or property for quite a long time. 

Hmmm, interesting point. I hadn't considered that the property would be seized and held until trial. I don't think anything should be seized and held until it can be seized for good.

[MechAg94]

Hmmm, interesting point. I hadn't considered that the property would be seized and held until trial. I don't think anything should be seized and held until it can be seized for good.

I was thinking about the people that have had their gun seized after a legal shoot then have to fight to get it back.

[roo_ster]

They have done that in Texas with a number of traffic fines due to speed traps, etc local agencies were doing to bump their funding.  It was targeting outsiders so the locals weren't affected.  The money generally goes to the state general fund I believe which takes away the incentive for the locals.  

On the compensation for legal costs, I think that should also include damages/costs due to losing the funds.  If they put a small shop out of business because they seized their money without good reason, they should have to pay damages.  If they have to give it back, it wasn't a good reason.

They get around that by raising "court fees" and dropping the ticket charge in return for "court fees" that amount to about the same amount of $$$ as the ticket.  And then you are told the ticket will be expunged and if you sin no more for a time.  For a month in N Richland Hills.  Dallas only requires you to be traffic violation free for 24 hours to make the deal stick.

[Hawkmoon]

Chris, this sort of thing is why I said in the other thread that cops (as a class) are the enemy. No matter how warm and fuzzy any individual officer friendly is, they're still part of a violent and heavily armed gang of thugs.

Correct.

Any "asset forfeiture" is nothing but larceny under color of law. Any seizure absent or prior to a warrant is a violation of the 4th Amendment. Any forfeiture prior to a conviction and sentence is both a violation of the 4th Amendment and theft under color of law.

[cordex]

Any "asset forfeiture" is nothing but larceny under color of law. Any seizure absent or prior to a warrant is a violation of the 4th Amendment. Any forfeiture prior to a conviction and sentence is both a violation of the 4th Amendment and theft under color of law.

I can think of plenty of cases where a police officer would be fully justified in temporarily taking control of something during the course of an investigation but prior to getting a warrant. Taking something permanently without a warrant is another thing altogether. Totally agree that forfeiture absent a conviction or admission of guilt is outright theft.

Abandoned property (I.e., boat load of drugs, no one willing to claim the boat) I don't care so much about. Treat as any other lost and found - attempt to notify owner, and after some time period auction off or whatever.

[MechAg94]

They get around that by raising "court fees" and dropping the ticket charge in return for "court fees" that amount to about the same amount of $$$ as the ticket.  And then you are told the ticket will be expunged and if you sin no more for a time.  For a month in N Richland Hills.  Dallas only requires you to be traffic violation free for 24 hours to make the deal stick.

You are correct.  I forgot about that.  I had to deal with a ticket that way in Pasadena, TX.  Same cost with deferred adjudication then clean record.