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Comment by konradb | Hacker News Reader

> If you can prove can prove that you have a legitimate reason to have that money

Exactly, why is it not incumbent upon them to prove that you have gained that money through illegitimate means?

Because this being a civil case, the legal standard is "balance of probabilities". In other words, if they can give a convincing explanation of how your money is likely to be tied to some criminal activity, so long as it's "more likely to be true than not true", they win - unless you offer a convincing rebuttal to make it less likely.

Here's the part which I don't understand: if it's a civil case, why do they get to seize the property before proving anything?

If I open a civil proceeding against you, I can try to prove that you owe me $5k and if I prove that to the appropriate standard you can be compelled to provide me with $5k. I can't hack your bank account, withdraw $5k, and then open a civil proceeding to retroactively legitimize my robbery.

The whole system is a massive violation of due process, no matter what legalese you try to use to justify it. If you're allowed to take people's property and then retroactively sue them if they complain, what is even the point of having the Fifth Amendment?

If the police catch a person running away from a recently robbed bank holding a bag of money do you think they should have to convict the person before taking back the money?

If there is reason to believe that someone is in possession of property that doesn't belong to them it seems perfectly reasonable for the police to confiscate said property.

In that case, wouldn't it be evidence? I genuinely don't know all the details of how this works, but I do find it disturbing that the police turn around and spend the forfeited cash. Should they be allowed to do that with the sack of money from the bank, in your example?

Sure, if it's clear who the property is owned by it goes back to the rightful owner. But in cases where that is unclear or nonsensical (like money obtained by selling illegal drugs) it goes to the state. Where else would it go?

It goes to the state after due process.

That's not what's being described here.

There is due process for civil asset forfeiture.

That is the discussion going on - that what _could_ be due process is being manipulated for the various departments' purposes.

There's a process, but it's not "due" to anything but avarice and corruption.

It's actually due to the well established legal procedures of our country.

I'm no Con Law scholar, but where exactly do you find a basis for United States v. $124,700 in U.S. Currency in either the writings or expressed intentions of our founders?

Where else would it go? A disinterested third party - not the police department that had the power to confiscate it. The state or a specific public good - i.e.: housing/food banks etc. could work.

I do agree with this actually. Rather that going straight to law enforcement budgets the money should go to the general coffers to be allocated by the legislature.

I'd rather see it directed, specifically, to needed public goods. Otherwise it becomes just another generic revenue source (i.e.: a tax) and, over-time, it becomes all too tempting to still milk it for more money. Red light cameras are a good example of this. Revenues from them (in Chicago, at least) went to the city's general fund. That didn't stop the city from reducing yellow light times to increase revenues.

I like that goal too, but I'm not sure how to really do that. A lot of states direct all lottery money to education but that just allows the states to spend less on education out of the general fund. Ultimately money is a fungible thing. No way around that.

That's certainly fair/true. FWIW, I appreciate the symbolism and/or keeping revenue streams constrained. At least that forces governments to be honest in taxation rather than allowing these back-door taxation strategies.

If the police catch a person running away from a recently robbed bank holding a bag of money do you think they should have to convict the person before taking back the money?

Yes. The money may be held in escrow pending the trial, but appropration by police is unjust -- and should be illegal if the person is not charged and arrested.

So if it's clear that a person is in possession of illegally obtained property, but it's a mystery exactly how they got it so law enforcement can't indict them for a crime, they should just get to keep it?

If how the individual came into possession of the property is a mystery, how is it clear the property was illegally obtained? I would be hard-pressed to prove that many of my assets truly belong to me.

Edit: all of this is off-topic, as the bank can be proven the owner and the police would not keep the money.

If it's "clear" the money result from illegal activity, they will be charged with a crime. Surely you are not advocating replacing the courts with truthiness and gut feelings?

No, I'm just saying that the legal standard for proving that property (usually money) was obtained illegally is lower than the legal standard for convicting someone for a crime and throwing them in jail.

Asset forfeiture is, and always has been, subject to judicial oversight.

The entire point of this story (and others like it) is precisely that there is NO judicial oversight over this kind of police theft.

That is a misreading of the story. This story outlines a method that allows law enforcement to confiscate money stored on pre-paid credit cards in a similar fashion to how they've previously confiscated cash. It says nothing at all about judicial oversite.

There are, in fact, well established and relatively simple procedures for contesting civil forfeiture. There is a fair argument to be made that they sometimes don't work as well as they should but when you say that there is "NO judicial oversight" at all you are just just flat out wrong. You need to update your worldview if you want it to conform to reality.

This isn't perfectly reasonable though. Presumably the bank gets their money back when the cops catch a bank robber. But the police keep the money that they confiscate through asset forfeiture. They had no right to it in the first place so what gives them the right to keep the confiscated money? It's robbery.

I don't think the argument is "police shouldn't confiscate [stolen] property from somebody they're detaining because of suspicion the individual has committed a crime", it's "police should not take property unrelated to the crime and, in the event the individual is cleared of any wrongdoing, return _all_ property", the latter of which isn't happening.

If it turns out the guy running away from the bank just likes jogging with a bag of money the police should return his money and whatever else _immediately_ after the person is released.

> police should not take property unrelated to the crime

How about "police should not take property where no crime is known to have been committed"

How do you propose to detect when the reason is fabricated? Legal systems need to be able to detect insider attacks on themselves.

This is why someone who has assets confiscated can make a claim (with a very low burden of proof) to get them back. People here are making it sound like that doing this is incredibly difficult or expensive but it's really not.

Depriving someone of their property – even temporarily – and forcing them to spend otherwise profitable time making a claim to get it back is a form of damage. What you're proposing would allow agents of the government to damage people as frequently as they wanted, with impunity.

You realize you can be arrested and held in jail before a trial right? That's exactly same thing as confiscating assets pending a trial.

only for a short period of time before getting to address a judge

That's actually not true at all. You can be held in jail for months pending completion of a trial depending on your ability to make bail and the seriousness of the crime in question.

You didn't mention a trial in your previous post, but rather a low standard of evidence to "make a claim". In that scenario, the burden of proof is on the victim of the property seizure rather than the accuser, which makes it different IMO.

The burden of proof in civil asset forfeiture trials (and there is a trial) is still on the plaintiff. It is not on the victim.

False, at least in the US. The government's case is considered to be against the property, not against you. The standard of legal proof is a preponderance of evidence, not beyond a reasonable doubt. "Assets [are only] returned if [the] owner proves [his/her] innocence". See https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United... for details.

"preponderance of evidence" is still a burden on the plaintiff. It's just a lower standard than "beyond a reasonable doubt".

In practice in the United States it's been shown to present little to no burden. These cases have been widely covered in the press. Again, see the link.

The Christian rock band raising money for a Thai orphanage[1] was a slam dunk, in terms of this so-called "low burden of proof", but it still took them two months to get their money back.

(Edited to add: I just realized they didn't actually get their money back. They got a check. Yep. You can generally cash those for free if you have a bank account.)

Imagine the situation of someone whose circumstances are less clear, or who can't otherwise afford to stay in one place and fight the seizure for however long it actually takes.

What happens to the person who just had all of their money taken away?

[1] http://www.nbcnews.com/news/asian-america/months-after-53-00...

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