But just because something is constitutional doesn't mean we have to do it, which is why simply getting the legislature to say "hey don't do that" is the approach left right now.
That is a ridiculous argument. Taking someone’s car or money isn’t “punishing the property” or “hurting the car’s feelings,” it’s depriving a citizen or resident of what is (until proven otherwise in a court of law) rightfully theirs and transgressing on their individual liberties. It is theft.
It can’t be theft until after the courts decide who owns it. Then it can be theft.
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The 5th amendment
> 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.
IMO it's pretty cut and dry that the government can't just seize your stuff on a whim, and was written as a reaction to the British Crown doing exactly this sort of thing.
So what counts as "unreasonable"?
The larger point, however, is that you can't appeal to the constitution in this case, because it's so ambiguous.
> No person
This is what the courts have decided to focus on, after the police and district attorneys filed cases against property, and not people.
This is how a monopoly on power acts in absence of constitutional limitations.
I think the first big shift happened with Oliver Wendell Holmes and the move away from originalist interpretation. Arguably this was bound to happened, and will continue to expand further out. The Constitution is honestly just given a nod and has little bearing on law at this point.
This is accurate insofar as it represents the current jurisprudence, but absolutely false in the moral or straightforward reading of the constitution.
The 'takings' clause of the 5th amendment, for example:
"nor shall private property be taken for public use, without just compensation"
That seems to clearly establish that humans have a right to their private property not being taken from them. Whether the legal fiction is a case against my car, or "a Toyota Corolla" doesn't have any practical difference on the outcome. The government can seize my car without due process,
Civil asset forfeiture is flat-out unconstitutional. The fact that is exists without due process or just compensation is wrong, and the current jurisprudence on it is simply wrong. It's rare for me to be willing to step out on a limb and say the courts are simply wrong on an issue, but civil asset forfeiture is a limb I will happily step out onto.
For this reason, the argument of "no, the courts said otherwise" with regards to jurisprudence can be particularly frustrating.
the more people bring these half baked cases in front of stupid judges, the more they keep crystallizing the reality.
> the more people bring these half baked cases in front of stupid judges, the more they keep crystallizing the reality.
Honestly, common law kind of sucks.
This was an outgrowth of the 80's and the war on drugs. It ruffled the feathers of average Americans that drug dealers got to keep their fancy cars and boats. Hence this was a legal way for the state to take those ill gotten gains. Over time its use has grown. Since the initial 'victims' were so unsympathetic, case law was established that everything was legal.
Seems right there, in plain english, in the 4th Amendment. I don't know what you're on about.
It seems straightforward enough, until you realize that it basically shifts the burden of proof for any ownership to you. And that includes the recursive problem of the money you used to buy it, so merely having a receipt doesn't suffice.
In a straightforward sense, it really does turn out to be that the word "their" is more complicated than it seems at first blush. But it's also clear that this complication is easily abused, and has been -- to a degree that courts should have stomped on long ago.
One case that is an example is a waitress who stored their tips in a jar at home getting all of it seized because 15 years ago she had a marijuana possession charge while in college (which was likely why she's a waitress in the first place (but thats another issue)).
Or people losing their cars because they got lost and drove down a "red light street" twice so they must clearly be looking for street workers.
Not to mention states that border vegas seizing winnings of anybody they can pull over who decided to cash all or part of their winnings in hard cash and make the mistake of letting hte officer see it. (for the meme of it mostly)
That's what this bill is about.
The difference is people must actively defend the constitution, on it’s own it’s just a document without lawyers or legal standing to defend itself.
I don't have emotions on this matter and I don't care what you think and I haven't stated my actual opinion. The authority on this matter are the courts.
The courts have evaluated civil forfeiture under
4th amendment arguments
5th amendment arguments
6th amendment arguments
8th amendment arguments
14th amendment arguments
and only found the 8th amendment argument against excessive fines to hold some weight, but not to undo civil asset forfeiture but only clarifying that the 8th amendment actually applies to the states.
if you want the executive branches to act differently and the courts to rule differently then you have to change what the legislature allows them to do.
like I wrote, just because something is constitutional doesn't mean we have to do it.
i might even write a comment about how thats the most effective way to change the reality, I wonder if people will read that part though, what do you think?
https://www.ted.com/talks/adam_foss_a_prosecutor_s_vision_fo...
If people with the power to, start making more use of these discretionary powers, it can make a big difference without having to overturn the seemingly extensive jurisprudence.
Some legal hacking.
As an anecdotal experience, I have been convicted of a felony and allowed to keep the cash in my possession by the judge, which was not SOP. I guess I had made an impression. No snitching involved.
The president and congress are just as sworn to upheld it, and with respect to several portions of it (e.g. impeachment) are the only arbiters of what it means. With the rare exception of cases where the Supreme Court has original jurisdiction [1] - congress is even allowed to replace the Supreme Court with a new final court of appeals. The Supreme Court has surprisingly little constitutional power if Congress decides to sideline them.
[1] > In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction
[2] (Emphasis added) > In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
And again, in theory Congress can make exceptions to it, but in the end its still up to the Supreme Court to decide that they make sense. A piece of paper has no meaning in and of itself.
Otherwise this comment (and the one you copy-pasted) looks like knee jerk damage control.
Of course, by this point, other people have seen through your rhetoric and have adjusted your comments score accordingly.
But that doesn't mean that a CAF isn't an illegal seizure of property from someone who does have constitutional rights not to be deprived of their property without due process.
https://en.wikipedia.org/wiki/Austin_v._United_States
This was the push that got the snowball rolling, so to speak.
4th amendment arguments
5th amendment arguments
6th amendment arguments
8th amendment arguments
14th amendment arguments
and only found the 8th amendment argument against excessive fines to hold some weight, but not to undo civil asset forfeiture but only clarifying that the 8th amendment actually applies to the states
They file the case against the property, not the human. If we want a constitutional guarantee on the property then we need a new constitution with its own property based bill of rights
the cases aren't on my clipboard but anyone passing by feel free to fill them in. The 8th amendment case was before the US Supreme Court this year or last, despite the positive ruling it did not get the man's property back until the state he was in re-ruled.
I guess someone needs to file a civil rights suit because they were deprived of that property under the color of law. The 4th ammendment is quite clear that one is to be secure in their affects. Doesn't matter if the case was filed against the property, the effect was felt by the person.
I trust you that there probably are many court decisions that have found civil forfeiture not to be unconstitutional. But it feels like it comes down to some pedantic twisting of words which go against the spirit of the constitution.
In this case because the human is not on trial, they don't get to exercise those rights.
Well, the US courts had affirmed slavery as constitutional at some point too, time and again, until the 13th amendment. And then you had e.g. the declaration of independence and its "unalienable rights". What a farse.
It makes sense to think about the spirit of a constitution, not just what some judges has historically or thus far accepted as such.
https://en.wikipedia.org/wiki/Three-fifths_Compromise
It also explicitly said that you can't escape "service or labor" just by going to a state that didn't allow it.
https://en.wikipedia.org/wiki/Article_Four_of_the_United_Sta...
They called it the Fugitive Slave Clause, even though the word doesn't appear in the Constitution. So yeah, that really wasn't just a matter of judges thinking about the "spirit" of the constitution. It was very clear that this was a slave nation.
Bonus: it still is, even with the 13th amendment. It does use the word slavery, and then provides an exception for people convicted of a crime.
Property lacks agency, property lacks an opinion, property lacks an ability to express oversight and input on the system...therefore property should not be subject to that system.
Same goes for juveniles, frankly. If you can't vote for the system or participate...why the heck can it take away your liberty? It already has.
This is where I (not from the US) stop and ask: Wait, what?
Yeah, I've heard it before, but I never understood this part. Does the property go to the court and speak on its own behalf? Does it have a right to stay silent? How does the case work?
The court cases are filed like
US v. $124,700 in US Currency
https://scholar.google.com/scholar_case?case=677960395272430...
One of the bigger controversies around civil cases is that they are often filed while the owner is not charged with anything.
In both civil and criminal issues, the human is often deprived of the very property they would use to pay a lawyer and help to defend themselves. By design.
Solution is to have stuff that nobody including the state knows about. "I have nothing to hide" well you should.
Also, whatever judgement happens, it's initiated by the owner, so there isn't an issue with timing.
That clarifies a bit how it works.
Anyway, the idea that just having large quantities of money creates strong suspicion of drug crimes that appears again and again on that linked document is beyond disgusting.
It's funny because I did think I remembered something in the ammendments about due process.
Sure.
> cases can be levied against property directly
That part is absurd.
Users use consensus as a proxy for accuracy, but it has no way of accomplishing that.