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Comment by rbtprograms | Hacker News Reader

Civil Asset Forfeiture is one of the greatest constitutional crises of the modern era United States. It's existence is evidence that the federal government plans to continue furthering its encroachment on civil liberties and I truly hope that the people can find a way to get rid of it. 84 percent of Americans reportedly oppose it, and I often have a hard time understanding how the Supreme Court hasn't struck it down (outside of the obvious reason they don't, which is to continue to have stronger federal power).

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The Supremes don't roam the legal badlands like caped crusaders, looking for injustices to set right. Somebody has to appeal a verdict in a lower court to them and they have to agree to hear it. Which generally doesn't: according to [1] they receive over 7000 petitions per year, so something like 30 per working day.

Do you know whether they have in fact refused to hear a case against CAF, or heard such a case and upheld it?

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

For context, there was a recent case on civil orfeiture in the Supreme Court (Timbs v Indiana 2019), but it was on whether or not the Eighth Amendment was incorporated (i.e., required to be upheld by the states and not just the federal government).

[0] https://www.aclu.org/blog/criminal-law-reform/reforming-poli...

SCOTUS actually ruled on this in 2019. https://www.aclu.org/blog/criminal-law-reform/reforming-poli...

It ruled that civil asset forfeitures are subject to the 8th Amendment prohibition against excessive monetary fines. This doesn't mean that they necessarily violate the 8th Amendment, only that they are subject to it. Unfortunately, almost every state already has such a restriction on their books and it hasn't stopped CAFs yet.

It's likely that another CAF case would result in the court deeming federal CAFs to violate the Sixth Amendment where the CAF is not actually related to a criminal conviction. (This is conjecture based on certain justices' remarks to the Federalist Society before they were appointed to SCOTUS.)

"The Supremes" have long since failed the People of the United States and have proven all of Jefferson's fears about what the court would become to be true.

"The Supreme's" can not be trusted to protect the constitution, and because of their failure the constitution has more exemptions, and holes than swiss cheese

>Civil Asset Forfeiture is one of the greatest constitutional crises of the modern era United States.

Civil Asset Forfeiture (CAF) goes back to 17th century Britain[0], and such laws were first enacted and ruled constitutional from the very beginnings of the United States.

You won't get any argument from me that CAF is a serious issue that needs to be addressed, but the idea that it's somehow a recent development doesn't comport with reality.

>It's existence is evidence that the federal government plans to continue furthering its encroachment on civil liberties and I truly hope that the people can find a way to get rid of it.

While the Federal government certainly engages in CAF, they took action[1] in 2015 to reduce (woefully inadequately, but action nonetheless) the incentive of state and local law "enforcement" to engage in CAF.

As such, while I agree in general (CAF is antithetical to liberty, is routinely abused and should almost never be used), your characterization of the history and main offenders/benefactors is flat wrong.

It's states and localities that engage in this sort of abuse much more frequently (and much more capriciously) than the Federal government.

[0] https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United...

[1] https://newrepublic.com/article/120799/holder-ends-most-equi...

I would argue the fact it was deemed legal in 17th century Britain and incorporated into the US early on doesn’t have any bearing on whether it’s a modern issue in a way that it wasn’t, or that it’s not a constitutional issue. Lots of things were legal and constitutional back then that would be a constitutional crisis now.

It’s a modern issue because of what’s changed. Now small police forces in on the cut shake people down in rural America like highway robber barons.

The institution of asset forfeiture is funky and stale IMO but, that notwithstanding, the modern constitutional crisis is that this literal highway robbery likely violates the due process clause of the 14th amendment.

>I would argue the fact it was deemed legal in 17th century Britain and incorporated into the US early on doesn’t have any bearing on whether it’s a modern issue in a way that it wasn’t, or that it’s not a constitutional issue.

I never said it wasn't (or couldn't be) a constitutional issue. And I disagree that the origins of CAF have no bearing on its current incarnation.

I bring up the history of CAF, not as some sort of endorsement of it, or to excuse its excesses or the harm it causes in our world today.

Rather, I look to history because it's generally an excellent guide to understanding who we are today and how we came to be that way. The old saw, "the past is prologue" is an old saw because it's both intuitively obvious and recommends one (of several) pathway to understanding current circumstances.

As Eugen Weber observed[0]:

"...This is what history is about. Where we come from, what lies behind the way we live and act and think. How our institutions, our religions, our laws were made."

Understanding the thought processes and mindsets that caused those who came before us to meet certain circumstances with CAF, as well as (as you correctly point out WRT the 14th Amendment) how changes in those thought processes and mindsets have (or should have) affected how we perceive and address the issues surrounding CAF today -- and most other things for that matter.

[0] https://youtu.be/XCyO8meahME?t=430

Edit: Clarified language.

I think the difference now is that the war on drugs turned a large percentage of the population into criminals and an even larger percentage of the population into suspects.

It is useful to understand the origins of CAF and I appreciate your comment. I don't think it significantly changes the discussion, but it does enhance and inform it.

Most people aren't even aware of CAF. I think the ones that are, are either folks who have been stung by it or civil libertarians. The civil libertarians appreciate how serious the problem is, but I also think they may have a slightly inflated sense of the preponderance due to the news outlets they follow. In any case, I hope we fix it soon.

>I think the difference now is that the war on drugs turned a large percentage of the population into criminals and an even larger percentage of the population into suspects.

And more's the pity.

It's just one more good reason, on top of the many other serious harms (economic, social and personal rights) to the United States, to end the disastrous "war on some drugs."

Civil Asset Forfeiture stems from older in rem cases, which were intended as a remedy when the owner of some object is unknown, or potentially not subject to the country's jurisdiction, and thus prosecuting the owner is not feasible.

I'm fine with use of in rem based seizures in the following cases:

1. The object in question is unlawful, or creating a problem, and nobody claims ownership of the object in question. (E.G. police find a stash house full of contraband, and the actual owners don't want to claim it for obvious reasons.) Please note that I would allow for in rem to be used when the owner is obvious if said owner claims "not mine". This of course would not prevent separate prosecution of the obvious person if the state feels they can prove ownership.

2. The owner is known (claimed), but is not subject to US jurisdiction, and is unwilling to subject themselves to US jurisdiction. (e.g. somebody from overseas owns a boat to be seized for non-payment of fees, or somebody from overseas is found to be unlawfully flying a drone in the United Sites and the drone is to be seized and auctioned because we cannot do anything to the actual owner.)

Notice how neither of these are even remotely like the common scenario in civil asset forfeiture.

> It's existence is evidence that the federal government plans to continue furthering its encroachment on civil liberties

The federal government doesn't have ideas of it's own.

It's steered by elected officials.

Politicians winning votes for "showing strength" being "tough on crime" and "standing with the police", is why some in the government might have a mindset where this makes sense.

Electing better politicians probably won't fix civil forfeiture anytime soon though, because there is far more pressing matters to fix -- say improve police training, or restore credibility of government agencies.

> The federal government doesn't have ideas of it's own.

Constructed minds have goals and desires like any other mind. Weather or not the federal government is conscious is another question.

You can't fix government credibility without fixing blatant abuses like civil asset forfeiture.

> 84 percent of Americans reportedly oppose it, and I often have a hard time understanding how the Supreme Court hasn't struck it down

That is because you shouldn't be looking to SCOTUS to decide cases based on popular vote. That's the responsibility of state and federal legislatures, either by adding constitutional laws or changing the constitution.

SCOTUS' job is just to make sure those laws are legal and followed. So only legal arguments are relevant.

It isn't a constitutional crises any more than time manner and place restrictions on protests, or warrant-less searches of cars, or stops for DUI checkpoints without any suspicion, or a hundred other things are, or requiring a clear background check before purchasing a firearm.

Your constitutional rights are not absolute. With the appropriate level of scrutiny, in furtherance of a valid interest the government can restrict these rights

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