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Comment by vaadu | Hacker News Reader

How is civil forfeiture(cash register justice) not a constitutional violation?

The 4th Amendment declares that citizens have a right to "their persons, houses, papers, and effects, against unreasonable searches and seizures" and that no warrants may be issued without a statement of probable cause "particularly describing…things to be seized."

The 5th Amendment says the accused criminals shall not be "deprived of life, liberty, or property, without due process of law."

The 6th Amendment ensures that people accused of crimes must be "informed of the nature and cause of the accusation,"

The 8th Amendment forbids the government to impose "excessive fines" or "cruel and unusual punishments."

Opponents of the change have little more than 'the ends justify the means' as a counter argument.

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The loophole relied on is that you aren't seizing "their" property, you're seizing property of unknown ownership. The onus is on the purported owner to prove it belongs to them so they can have Constitutional rights in it.

See https://en.wikipedia.org/wiki/In_rem_jurisdiction, https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United... and https://en.wikipedia.org/wiki/Asset_forfeiture#United_States

Note that the government can admit the person used to own it. Under https://www.law.cornell.edu/uscode/text/18/981, property used in certain crimes belongs to the government, and so the government takes it. It's then the person's job to prove it was not involved in a crime. Courts have ruled this doesn't violate anyone's rights.

(I probably have some of this wrong, IANAL, but I gave sources so you can look those up.)

What I don't understand is how courts can assume it's used in a crime before a crime has been proven in court.

Presumably, if I can prove I earned/bought something, and am not convicted of a crime, turf the government seizure is wrongful and I should get restitution, but from what I read, that doesn't work?

Only persons have the presumption of not being guilty. Not property. The government can claim crimes all they want, they just can't claim a person committed a crime (and punish them for it).

This is all about shifting the burden of proof to the accused. Allowing the money to be charged separately does that, or so courts have ruled.

(Insert above disclaimer here.)

Then shouldn't the law that transfers ownership be "seizing property without due process" and therefore unconstitutional?

The law says (assuming I'm understanding properly) if a crime was committed with property, then that property automatically belongs to the government.

The government says "this property belongs to us. You have no rights in it, because a crime was committed with it. Therefore, you have no constitutional protections. Prove that it's yours, and to do so, you must prove that no crime was committed."

The comment you're replying to is asking how that is not siezing property without due process. Repeating what they're doing doesn't answer the question of where due process occurs before the person is deprived of their property.

The person is not deprived of "their" property. They may be deprived of property that they have no way to show is, in fact, theirs.

Then the question is, what is property rights? What safety in my property and protection against seizure thereof do I have from the constitution?

Any property not accused of a crime is protected, plus some other categories. I posted a law review article above that went into detail.

If that's the loophole, then how does it not apply just as well to all searches and seizures? Why can't cops just show up at a house, search it, take whatever they want, and leave it up to the owner to prove they're the owner or try to fight it in court after the fact? Of course, that's a rhetorical question, because that exact thing does routinely happen.

Because they don't have any basis for claiming that it belongs to them.

Whereas property accused of being used for illegal purposes does have such a basis.

So the cops just have to declare that they believe the property has been used for illegal purposes, then they can search your house and take whatever they want. That's not much of a barrier.

It's more complicated. A house is treated differently (I linked some resources on why elsewhere in this thread), and going in requires a warrent.

They're using a legal loophole, charging the property with being complicit in a crime, not the person. So the piles of money they seize aren't protected by the constitution. This is obviously absurd, corrupt, ridiculous, etc. We have a very corrupt justice system.

If the police catch you outside of an electronics store with a broken back door in the middle of the night walking away with a big screen TV do you think they should have to convict you of a crime before they take the TV from you?

And if you say "no" to that then where exactly do you draw the line in between law enforcement taking obviously stolen property and law enforcement taking personal property?

I don't ask this question rhetorically, I ask it because I'm honestly not sure.

Yes, I think they should have to charge you with a crime. If they're sure enough that you took it, they should be able to get a conviction. If they're not, they shouldn't take it.

To add to that much of the property in criminal cases isn't claimed to begin with. When they bust a drug stash no one in their right mind would claim ownership on neither the drugs nor the money seized.

That money will get into evidence and will normally be returned the the federal reserve, the program allowed the DOJ to appropriate a portion of that money and distribute it to local law enforcement agencies to increase their funding.

Money and other assets will still be seized and they will still not be returned to the criminals they were seized form even if they do not go to trial this might seem unfair but those assets are unclaimed if they claim them they need to prove ownership and that will get them into a sea of trouble.

Where will this money go now, well most likely back to the fed or will be kept on the DOJ books, I really don't understand why people have trouble with this policy or why they hail the halt to it as some great achievement to civil rights.

Because the cops can simply pull you over for a bogus traffic violation, search you, seize any cash you have on you, and send you on your way. Now it's up to you to prove that your $3000 in cash was legitimate.

Costs more than $3000 to fight the case, so what are you going to do about it? The cops just stole your $3000 and there isn't shit you can do.

And now the government has stolen it from the cops. Well, it's better than nothing I guess.

It creates an obvious conflict of interest. The cops now have a reason to abuse their power. They get paid.

Take it from you and put it in evidence? Sure, but that is a time limited thing. The court will either rule it is your TV, and they should give it back to you, or it is ruled as stolen and given back to the proper owner. The part where they keep it is obviously wrong.

I'm fairly certain that when assets are forfeited any party has the opportunity to claim the property. There is no case where no claim is found valid and law enforcement gets to keep it.

In your example it's not forfeiture, it's evidence. Evidence treated differently. It's either held until a verdict is reached or it's returned to its rightful owner.

From wheat I read, police have been pulling people over, and if there is cash in the car, "suspected" it might be used for drugs (even though the accused claims it's for other reasonable purchases) and then the person doesn't get the money, even after making a claim to get it back.

> where exactly do you draw the line in between law enforcement taking obviously stolen property and law enforcement taking personal property?

The difference is the "obviously stolen" part. None of the ludicrous instances of civil asset forfeiture I have read involve property that is obviously (or even allegedly) stolen. Heck, half the time it's just a cop pulling someone over on a highway, stealing their cash, and sending them on their way.

Without data to support the claim, I'm pretty suspicious of the idea that half the time it's a cop taking money from some random person on a highway.

I was talking only about blatant misuses of civil asset forfeiture, and the "half" figure wasn't meant to be taken literally. All I meant is that there are plenty of instances of civil asset forfeiture where there is not even the pretense of criminal involvement, where a police officer simply takes property from someone and it's up to them to fight to get it back.

The software I work on has plenty of bugs (as it was made by humans) but it's still pretty useful. I think to have any real discussion here we need some sort of data on error rates. Sure, it's sucks for the guy that gets his rightful property taken from him. But is that happening 10% of the time? 1% of the time? .01% of the time?

My opinion on the matter would change drastically depending on which one of those numbers reflects reality.

I don't understand. My position is that blatant abuses of civil asset forfeiture should happen less and should be punished severely. The standard required to seize assets should probably be higher, and there should be far less burden on the asset owner to reclaim their assets.

In your analogy, that's me saying that we should try to reduce the number of bugs in our software. I don't think this is controversial.

Ah. Then we agree!

I think I mixed up your opinion with some other folks who think we shouldn't have asset forfeiture at all. Sorry about that. My mistake.

People have been posting these stories here for a while, here's a couple of examples:

http://www.washingtonpost.com/sf/investigative/2014/09/06/st...

http://edition.cnn.com/2015/01/21/us/asset-seizures/

That first one was ok.

In general though I wish articles like this relied less on anecdote and more on data. I'm way more convinced by evidence of large scale issues than I am by a single story no matter how egregious.

If there is a suspicion of a crime they should be able to stop and search you (hence the reasonable clause). But if they only see you carrying a TV they should not be able to stop and take it. And that is what they've done. "You have a lot of money in your possession, it must have been ill gotten gains from a crime so we will take it." They do this without even knowing what crime was committed.

Under the 4th, the government has proposed and the courts have accepted a mendacious definition of reasonable.

Under the 5th, due process basically means you have a right to a hearing where you can present evidence, examine witnesses, have counsel if you desire, etc and have the reasoning for the decision written down. It doesn't require that the rules being applied be fair.

Under the 6th, nobody is being accused of a crime, otherwise it'd be a criminal forfeiture.

Under the 8th, civil forfeitures aren't fines or punishments.

The courts are far too deferential to the government. Unfortunately, presidents tend to appoint and the senate tends to confirm judges who will ignore all but the most egregious violations of the constitution when given laughable but marginally plausible arguments as to why the constitution is not in fact being violated.

If you appoint strict constructionist judges who would interpret the literal text and original intent of the constitution, you would probably also have to give up Roe v. Wade and things like affirmative action, that are not literally in the constitution.

You'd also have no hope of a future Supreme Court reading into the Constitution protection against surveillance as violating of some "right to privacy" that appears nowhere in the text of the Constitution.

No, not because of "right to privacy," but it would be pretty easy for those justices to rule that the federal government has no authority to conduct mass surveillance precisely because there is no explicit such authority given to the federal government in the Constitution.

But a very broad national security power is part of the Constitution, by design. The necessary and proper clause would mean nothing if that doesn't fall within the grant of power to provide for the national defense.

I don't know how to begin to estimate whether the good things (according to my own policy preferences) would outweigh the bad.

Regarding the fourth amendment, the assets must be discovered pursuant to a legitimate search (either a legitimate search incident to arrest or traffic stop or a search pursuant to a warrant). Regarding the other amendments: civil asset forfeiture does not involve the government taking away your legitimate property to punish you for a crime. It involves seizing property that is more likely than not the proceeds or instrumentality of criminal activity. It has its roots in admiralty law and the seizure of contraband from ships, which was not considered a deprivation of property subject to due process at the time of the founding: http://www.forbes.com/2011/06/08/property-civil-forfeiture.h....

The courts have also managed to disregard the 'enumerated powers' clause of the constitution and the tenth amendment.[1][2] In some ways, it is unrealistic for us to expect a creature of the federal government to restrict the powers of the federal government. Most of the federal agencies are defended by an 'ends justify the means' type argument.

[1] https://en.wikipedia.org/wiki/Enumerated_powers

[2] https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_...

"How is civil forfeiture(cash register justice) not a constitutional violation?"

It is. But you assume that laws cannot violate the constitution. They can and they do constantly, all the time. The constitution doesn't mean shit (I wanted to add "anymore", but from reading history, I'm not convinced it ever meant shit). That's just reality. It only means something when people in power want it to mean something. And yes, it's incredibly ironic that this is the exact system we had a revolution to get away from. Maybe not so much when you consider that a revolution is a 360 degree rotation that ends up in the exact same place. In that case, it probably isn't ironic that such programs had a huge resurgence under King George II (2000-2008), although had he been the third, the irony and historical allusion would have been even better.

As far as justice and rule by law in the US, I think it's time for us to accept reality, that the US "justice" system is beyond broken and unfixable. This simply isn't justice and most of what the system deals with is not either: it's the opposite. If we keep lying to ourselves that this is justice, we'll never be able to stop this horrific system that ruins millions of lives and creates such a terrified, divided society. Once you understand that there are no laws and no Constitution protecting you, that the gang in blue can do whatever the fuck they want and get away with it up to and including murder, shit gets a lot scarier. And no, you don't have to be a minority to see this reality.

Fatalists do the least. When you throw your hands up in resignation you're simply ceding the game to the ones you claim to hate. Life's hard, tough shit. Plenty of societies have been moved from within through citizen's actions. To imply that suddenly now it's harder than ever is narcissistic whining. There are a thousand people grinding right now to move the needle to green, and I bet not a single one of them asked for permission from "people in power".

I'm not trying to suggest that there's nothing that can be done, though I can see how you might interpret it that way, or that it's harder now than in the past, though I can't possibly see where you got that from. I'm simply saying that the "justice" system cannot be fixed without completely dismantling and replacing it, and that's not something you're going to do by changing a few laws or even releasing thousands of prisoners. Both are good ideas, but neither change the inherent injustices in our system of which there are way too many to even list. Plea bargains, mandatory minimums, criminalization of everyday activities, habeas corpus (or lack thereof), policing for money, prison officials that encourage rape and violence, racial profiling, different judicial outcomes based on wealth, police committing blatant murders without recourse or consequences, etc. are all huge problems in our current system and are not going to be fixed by a system that can't even ensure its basic principles (the constitution) is upheld.

I don't see it as "fatalist," at least not in a negative sense. It's quite possible that the average person does have effectively no control over policy, and that one's time is better spent directly making one's life as best as possible by fostering relationships, furthering one's career, enjoying hobbies and entertainment, etc.

And of course I don't think it's now harder than ever. I'm not sure where that notion came from.

That's why the US should have a Constitutional Court (even if it's "one-sided") the same way it allowed itself to have a one-sided secret spy Court. At least most of the unconstitutional bills would be filtered out then, before they ever become laws. Merely hoping to ban an unconstitutional law at the Supreme Court two decades after it passed doesn't sound very democratic or "justice-like" to me, but it seems to be the system Americans have allowed to exist.

AKA the Supreme Court.

Edit: I think the end of your comment was edited in. Regarding waiting, often it's because nobody considered it problematic at the time. Many rulings striking down laws are overturning previous rulings upholding those laws, and are rarely unanimous.

Find me a law that was overturned unanimously, would be struck down by any court looking at it, yet was both law and enforced for decades because nobody looked at it.

The Supreme Court cannot proactively take on an issue. Hacking around stuff like jurisdiction and standing is how obviously unconstitutional practices like what the NSA and various other agencies do are able to persist so long.

You realize that several courts have disagreed with your blanket finding of "obviously unconstitutional"?

And the legal issue there is mostly whether the law actually authorizes the NSA to do what they do, not Constitutional issues (with exception).

Which specific practices have courts not found to be constitutional, yet wasn't stopped because of "jurisdiction and standing"?

Do you think that a program like BULLRUN, where the government secretly modifies systems belonging to US and other entities is constitutional?

The answer is almost certainly "no". But good luck litigating it.

That's got nothing to do with jurisdiction and standing, and everything to do with the people in charge denying that it takes place.

Could you link to which specific leaked info says that they secretly modified US systems?

How would a court looking at more laws have stopped whatever happened?

This Supreme Court has. Look at Citizens United.

This, and other decisions, is why this Supreme Court has done more damage to the US than ISIS could ever hope to do.

The Citizens United case in brief: The Supreme Court said that the Federal Elections Commission's attempt to censor a documentary about Hillary Clinton as an "electioneering communication" within x days of an election was a violation of the first amendment.

If you don't like the outcome in Citizens United, you've either been lied to about what the decision was or you believe that the first amendment doesn't apply to political speech when people organize together to speak it.

No not at all. You have to have standing, and you have to bring your case. The exact opposite of the supreme court.

Anyone whose rights could conceivably be violated under some law has standing to challenge it.

"You have to bring the case" what's the alternative, that someone sues for every new law even if nobody thinks it's unconstitutional? Who exactly do we get to argue for outcomes nobody believes or wants? (Yes, lawyers will argue for things they don't believe, but somebody wants that outcome).

So if everyone likes a law, the best thing should be not to have a lawsuit. If someone doesn't like a law, then they can go ahead and sue.

Or do you want all laws to be delayed until pending lawsuits finish? But if a court agrees that you're very likely to prevail, they can issue an injunction to prevent the law from going into effect. Most laws have a waiting period before becoming law anyway.

Could you be very specific in which particular aspect of modern American jurisprudence you would abolish, what your justification for that is, and what you'd replace it with?

> Anyone whose rights could conceivably be violated under some law has standing to challenge it.

It is extremely difficult for an individual to bring a case before the court to challenge a law _without_ having that law being used against the same individual. You have to commit the crime and be charged using the law. That would give you standing.

The government can pass all the unconstitutional laws they want, which then get applied to people, if someone has the means to fight and win, then the law gets overturned. There is no lower or time limit to which laws can violate the constitution.

That's incorrect. For first amendment violations, everyone has standing, and for everything else, you only need to show that it will harm you, not that it's being used against you. See https://en.wikipedia.org/wiki/Standing_(law)#Recent_developm... and the next two sections.

Thanks for the link, I will have to look into this more.

Why do you suppose that a constitutional court would rule with an interpretation of constitutionality similar to your own? Heck, I don't even see a good way to incentivize constitutional courts to rule honestly, even if the judges own beliefs about the constitution did match mine. Apart from individuals' own desires for power, there's really very little reason for branches of government to do anything other than collude.

> And yes, it's incredibly ironic that this is the exact system we had a revolution to get away from.

I don't know if that's the case. It seems to me that one plausible reading of the history of the United States is that the rich colonists ("founding fathers") wanted to make sure they had all the power they wanted over the new government.

The law means what everyone says it means. A plain reading of the constitution (and without a doubt the founders intentions) prohibit civil forfeiture. Unfortunately the courts have rubber-stamped the ridiculous legal fiction that the government is suing the property so here we are.

This is what makes libertarianism a cruel joke: even if it made sense, it would be subverted immediately by powerful or moneyed interests.

The constitution means nothing if the courts or executive won't enforce it.

> The law means what everyone says it means.

Not quite. The law means what the people with actual power say it means. I find it odd that people express surprise when something happens that seems to violate some text written on a piece of paper. It's people with guns versus a text document. Not really a fair match, and not a surprising outcome.

> This is what makes libertarianism a cruel joke: even if it made sense, it would be subverted immediately by powerful or moneyed interests.

Not sure what that has to do with libertarianism specifically. Seems like "democracy" or even just "government" fits better in that sentence.

Re the 8th, https://scholar.google.com/scholar_case?case=100051333946330... seems to say that it does apply.

Re the 5th, https://scholar.google.com/scholar_case?case=527393711501700... seems to say it does apply, but only for "real" property (land).

https://www.pennlawreview.com/print/163-U-Pa-L-Rev-867.pdf seems to have a good summary of the legal aspects here.

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