A Gun Shop Owner and the Bank Secrecy Act

[Ben]

Sounds like their might be some push to remove the stupid Bank Secrecy Act. One can hope. Funny how the IRS is apologizing, but not refunding the money that the small business owners are out from fighting the "charges".

http://www.foxnews.com/politics/2015/02/11/small-business-owners-battle-irs-over-seized-bank-accounts/

[Angel Eyes]

Ben, I appreciate you alerting us to these shenanigans, but such stories are not good for my blood pressure.

[MechAg94]

If they are not going to remove that law, wouldn't it at least be prudent to require a speedy hearing where the seizing agency would have to prove actual criminal activity? 

I guess the lawyers are running the asylum. 

[Angel Eyes]

If they are not going to remove that law, wouldn't it at least be prudent to require a speedy hearing where the seizing agency would have to prove actual criminal activity? 

No no no, you've got it all wrong.  The idea is to make the process of recovering seized assets so onerous, so Kafka-esque that most of the victims will simply give up, either out of frustration or because they can't afford to keep fighting.  Then the .gov gets to keep its ill-gotten gain.

I guess the lawyers are running the asylum. 

. . . with lots of help from politicians and career bureaucrats.

[Ben]

Ben, I appreciate you alerting us to these shenanigans, but such stories are not good for my blood pressure.

Mine either. 

[Hawkmoon]

No no no, you've got it all wrong.  The idea is to make the process of recovering seized assets so onerous, so Kafka-esque that most of the victims will simply give up, either out of frustration or because they can't afford to keep fighting.  Then the .gov gets to keep its ill-gotten gain.

. . . with lots of help from politicians and career bureaucrats.

That's the gist of it.

The entire concept of asset forfeiture is contrary to the Constitution and the Bill of Rights. The Sixteenth Amendment states (in part):

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

And the Fifth Amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The gummint probably argues that getting a judge to sign off is "due process" but, strictly speaking, any sort of ex parte proceeding is not due process.

[brimic]

. . . with lots of help from politicians and career bureaucrats.

I noticed that Koskinen was quoted in the article. This is the same pile of *expletive deleted*it that lued to congress and the American people over the IRS emails.

[Fly320s]

I read stories like this and I can't help but think, "Let's start the revolution already!" 

[Firethorn]

I read stories like this and I can't help but think, "Let's start the revolution already!" 

Just dropped a line to my congresscritters:

Hello xxx,

I'm writing to urge you to do something to prevent the growing practice of the IRS and FBI confiscating people's money under the 'presumption' that it's tied to drug dealing or other criminal activity, but without so much as charging the individual with a crime, or indeed any evidence of a crime other than them either having a large amount of cash on them or making multiple sub-$10k deposits.

I view this as a travesty of justice here in the USA, and against the US Constitution.  People are forced to 'prove' the innocence of their money or assets, as opposed to a court of law imposing a penalty due to conviction under 'beyond a reasonable doubt'.

These are only a couple of examples, I keep seeing these stories pop up time and time again.
IRS seizing bank accounts:
http://www.foxnews.com/politics/2015/02/11/small-business-owners-battle-irs-over-seized-bank-accounts/

Police seizing money:
http://www.npr.org/templates/story/story.php?storyId=91555835

Thank you for your attention,

xxxxx[real name redacted because I'm shy]

Remember, congresscritters are busy but have aids.  Be polite, but to the point.

[Jocassee]

No no no, you've got it all wrong.  The idea is to make the process of recovering seized assets so onerous, so Kafka-esque that most of the victims will simply give up, either out of frustration or because they can't afford to keep fighting.  Then the .gov gets to keep its ill-gotten gain.

The process is the punishment.

[birdman]

If they are not going to remove that law, wouldn't it at least be prudent to require a speedy hearing wherehanging of the seizing agency would have to prove actual criminal activity? 

I guess the lawyers are running the asylum. 

FIFY

[230RN]

I believe there was some legal trickery such that the money (or assets) got defined as the actual "criminal."  Since this "criminal" is mute, it can't defend itself and therefore remains in government custody.

I'm not clear on the logic behind that, since I'm stupid, so some lawyer will have to amplify on this.

Terry

[Angel Eyes]

I believe there was some legal trickery such that the money (or assets) got defined as the actual "criminal."  Since this "criminal" is mute, it can't defend itself and therefore remains in government custody.

I'm not clear on the logic behind that, since I'm stupid, so some lawyer will have to amplify on this.

Terry

ObDisclaimer:  IANAL

Yep, the money or asset is accused in cases like "People of the United States vs. $100,000 in cash" or words to that effect.  Since a car, house, or pile of cash has no Constitutional rights, mounting a legal defense is problematic.

I have no idea what the legal justification is.  How can an object be a defendant?

[Firethorn]

I have no idea what the legal justification is.  How can an object be a defendant?

How can a corporation be a defendant?  Legal fiction, just like the objects.

[Angel Eyes]

How can a corporation be a defendant?  Legal fiction, just like the objects.

Except that corporations are made up of people, and those people can participate in the corporation's legal defense.   A pile of cash, not so much.

[RoadKingLarry]

It never ceases to amaze me that we do not see more killdozer type events.  I'm not sure if that's a good thing or a bad thing....

[De Selby]

Asset seizure comes from the very old principle that you cannot have title in proceeds or instruments of crime.

The in rem proceeding is also very old - property itself that facilitates crime can't be owned by anyone (same reasoning), so it's charged in its own right and subjected to forfeiture proceedings.  The rationale is that if you own something, you should take care that it not cause harm to the community by facilitating a crime.

These are very old and arcane legal proceedings being applied to an economy that didn't exist when they were around.  That's why you get the odd results, imo. 

The founding fathers and authors of the constitution were well versed in this area of law though.  It is not an accidental consequence of anything.

[Angel Eyes]

https://www.youtube.com/watch?v=3kEpZWGgJks

Not sure whether to be or 

[wmenorr67]

I believe there was some legal trickery such that the money (or assets) got defined as the actual "criminal."  Since this "criminal" is mute, it can't defend itself and therefore remains in government custody.

I'm not clear on the logic behind that, since I'm stupid, so some lawyer will have to amplify on this.

Terry

Based on this logic the government entity that detains this "criminal" shouldn't be allowed to spend it.

[RevDisk]

Asset seizure comes from the very old principle that you cannot have title in proceeds or instruments of crime.

The in rem proceeding is also very old - property itself that facilitates crime can't be owned by anyone (same reasoning), so it's charged in its own right and subjected to forfeiture proceedings.  The rationale is that if you own something, you should take care that it not cause harm to the community by facilitating a crime.

These are very old and arcane legal proceedings being applied to an economy that didn't exist when they were around.  That's why you get the odd results, imo. 

The founding fathers and authors of the constitution were well versed in this area of law though.  It is not an accidental consequence of anything.

I concur with the first sentence. I'm merely pointing out it's not applicable to anyone who has not been convicted of a crime. Folks are not being convicted of any crime, just shaken down or outright robbed without due process.

[MechAg94]

My problem with this is that the govt had no proof or evidence that a crime was being facilitated.  There was only knew the size of the deposits.  No investigation was done to confirm or deny criminal activity before seizure.  

There were also no "forfeiture proceedings".  They just seized it.  If there were immediate court hearings where the state would present its evidence or give the money back (immediately), this would be a little easier to deal with.  

There was IMO intent to harm the business and business owner.  They knew there was no criminal activity either before or soon after.  They didn't give the money back until they were forced to.  IMO, that should be illegal and actionable via civil liability.  

Asset seizure comes from the very old principle that you cannot have title in proceeds or instruments of crime.

The in rem proceeding is also very old - property itself that facilitates crime can't be owned by anyone (same reasoning), so it's charged in its own right and subjected to forfeiture proceedings.  The rationale is that if you own something, you should take care that it not cause harm to the community by facilitating a crime.

These are very old and arcane legal proceedings being applied to an economy that didn't exist when they were around.  That's why you get the odd results, imo.  

The founding fathers and authors of the constitution were well versed in this area of law though.  It is not an accidental consequence of anything.

[roo_ster]

It never ceases to amaze me that we do not see more killdozer type events.  I'm not sure if that's a good thing or a bad thing....

Bad thing.  Bureaucrats and elected officials should be in fear of the citizenry.

[De Selby]

I fully agree on the policy that a criminal conviction should precede a seizure, Rev and Mech.

I'm just pointing out that charging property with a crime and seizing it on nothing more than probable cause is a very old feature of our laws.  It makes more sense applied to pirate ships and unidentified stashes of loot, but it is hardly a novel practice.

Seizing property even where no charge has even been laid against a person is literally as old as the Republic.

[MechAg94]

Does anyone know if anyone has tried to sue on the basis that there was no probable cause in some of these cases?  It seems to me that in this case, just the fact that there were deposits under $10K is not sufficient probable cause.  I was curious what the court precedent is.  

At the least, the bar should be raised for what is considered probable cause or evidence required to initiate the seizure of property/money.  It seems as though law enforcement agencies have been seizing assets on nothing more than assumptions.  

[Scout26]

At the least, the bar should be raised for what is considered probable cause or evidence required to initiate the seizure of property/money.  It seems as though law enforcement agencies have been seizing assets on nothing more than assumptions. a chance to grab some quick cash and prizes.

FTFY.

And that's pretty much what it is.  Piracy by .gov.