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TechDirt reports
After years of civil asset forfeiture abuse, legislators are finally fighting back. Reform bills have been offered up all over the country. Unfortunately, very few of them have made it to state governors' desks intact.
The Free Thought Project continues
California Governor Jerry Brown recently [September 29] signed into law a piece of legislation requiring police to secure an actual conviction before stealing people's stuff in drug-related offenses.
Civil asset forfeiture has been rightly likened to state-sanctioned armed robbery as it allows police to commandeer cash, vehicles, homes, or any property of value--even if the person is never charged with a crime--and then use or sell the items for profit for their departments.
Police in Oklahoma, for example, recently honed their thievery by rolling out nefarious Electronic Recovery and Access to Data machines, known as ERAD, which can scan your bank account and prepaid cards, and--if an officer believes any balances are tied to a crime--can wipe those accounts dry.
California's new law, formerly Senate Bill 443, quashes this nightmarish policing-for-profit in the exact way advocates of civil asset forfeiture (CAF) reform have been demanding for years.
[Continues...]
TechDirt also notes
Not only does the law contain a conviction requirement--something that should greatly reduce the amount of abuse--but it closes a loophole [that] law enforcement agencies love using to route around state-level restrictions.
Beginning Jan. 1, 2017, police departments in California will be largely prohibited from transferring seized property to federal agencies in order to sidestep state conviction requirements. The legislation forbids the transfer of property, like vehicles and homes, and specifically raises the threshold on cash seizures, requiring the government to obtain a conviction before permanently confiscating any amount under $40,000. (The previous cap was $25,000.) For larger cash seizures, authorities must provide "clear and convincing" evidence of a connection to criminal activity before taking the money for good.
Previous: Civil Asset Forfeiture Goes Digital [ERAD]
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(Score: 4, Insightful) by Anonymous Coward on Friday October 07 2016, @10:09AM
Not being a constitutional lawyer, or even being an American, I have to wonder why civil asset forfeiture the way it seems to be done in some places in the US can be legal, when the Fifth Amendment to the US Constitution says in no uncertain terms (emphasis added):
I don't see how any lawyer, no matter how crooked, can argue that civil asset forfeiture the way I hear it's being done these days is not depriving someone of their property without due process of law in direct violation of the Constitution, which is supposed to trump any and all other laws, state or federal. If you have to get a conviction first, the way this new law in California mandates, then arguably it would be Constitutional, since there would then be due process of law, but if the police can take away any of your property without first convicting you of a crime, then how is that not a blatant violation of the Fifth Amendment?
(Score: 4, Informative) by UncleSlacky on Friday October 07 2016, @10:34AM
It seems that "civil" and "criminal" forfeiture are two different things - in civil cases, the property, not the person, is considered the "offender", so the 5th amendment arguably doesn't apply. There's more here:
https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_States#Civil_versus_criminal_forfeiture [wikipedia.org]
(Score: 3, Insightful) by Anonymous Coward on Friday October 07 2016, @10:58AM
(Score: 5, Interesting) by Arik on Friday October 07 2016, @02:38PM
Well clearly that's bullshit. If that were the intent of the clause the section before it would not be there. That's obvious to anyone who can read. They still make the argument with a straight face, and they still get away with it, because the judges bought into it long ago, so that their careers would lead to judgeships.
Another way they've done this is slighly less obvious, as you need to be sophisticated enough to realize that language changes over time and some of the words used then did not mean the same thing they've come to mean now. So there's a power given to "regulate commerce." After over 200 years that one word, 'regulate' has not just changed meaning a bit naturally, as words do, it's actually a word that's been completely redefined in order to slip those chains further. You see, when the constitution was written, to 'regulate' simply meant to make regular. When your shotgun barrel was old and bumpy and inaccurate and you took it to the gunsmith and had the bore reconditioned so that it was all regular and smooth again, this was called 'regulating the barrel.' Regulating commerce originally just meant that, making it regular. So if south carolina wanted to impose a tariff on imports from say connecticut, this would be where that power was originally intended to apply. The feds have authority to say 'well, no, you can't target another state with a tariff like that, that would make commerce irregular, so we're actually allowed to stop you from doing that. You could place the same tariff on all imports regardless of origin, but you can't play favorites like you're doing, we have to keep it regular."
Well now that's been twisted and stretched to the point where they argue jurisdiction, not just on anyone involved in interstate commerce, but even people NOT involved in interstate commerce at all! They say it's enough to be involved in an activity, where that activity more broadly has some effect on interstate commerce. Again, this is obvious bullshit. If that was what was meant, there would have been no reason at all to write the constitution.
If laughter is the best medicine, who are the best doctors?
(Score: 0) by Anonymous Coward on Friday October 07 2016, @07:32PM
Until Reactionary judges start dying (by whatever mechanism, natural or otherwise), I don't see things changing for the better.
...and "better" presupposes that it will be non-Reactionary judges who will succeed them.
Now, just imagine what kinds of judges a Trump administration would nominate.
...and, on this topic, I don't see a Clinton45 administration to be significantly different.
Remember that mass incarceration of non-rich people (in particular, people of color) was a Clinton notion--with Bill's Head Cheerleader, Hillary Rodham "Superpredators" Clinton, being in full support.
...and remember that, under Reagan, DoJ put a whole bunch of S&L criminals in jail.
Starting with Clinton42, prosecution of white collar criminals tapered to a trickle.
Remember also that bankruptcy law was changed on the watch of Clinton42 (such that e.g. student loans couldn't be discharged via bankruptcy).
Again, HRC was the Head Cheerleader for Neoliberalism.
-- OriginalOwner_ [soylentnews.org]
(Score: 2) by sjames on Friday October 07 2016, @08:37PM
So they can stop me in the street and take the $500 in my pocket exactly the way a street mugger would...
Let's be fair, it's not exactly the same. If you resist the street mugger, he will be beaten and jailed. If you resist the street mugger with a badge, YOU will be beaten and jailed (if you live).
(Score: 1) by evil_aaronm on Friday October 07 2016, @05:53PM
Which I've always thought ridiculous to the point of being retarded. Analogy: If I shoot someone, can I blame the bullet for their injuries? Of course not. So how can the property be the defendant?
(Score: 2) by sjames on Friday October 07 2016, @08:25PM
In other words, the cops want to be crooks so they employ sophistry and make sure the judicial branch gets a big enough cut to not rumble the game.
(Score: 3, Interesting) by NCommander on Friday October 07 2016, @12:35PM
Unfortunately, without LE and similar enforcing the Constitution, its just a piece of paper.
Civil cases essentially run around most of the protections in the constitution because its seen as person-to-person, and not the government vs. a person. Except the government can also be a person and you start seeing this kind of stupidity.
I've felt we've been long overdue for true tort reform in the United States, and bring criminal and civil cases up to the same exact standards; not having this odd run-around we have now.
Still always moving
(Score: 2) by jelizondo on Friday October 07 2016, @02:43PM
Civil cases have a different treatment for a very good reason, which you stated, they are person to person. And said persons might lack the resources necessary to obtain relief from the courts if the bar is set to high.
Suppose, as an example, that I loan you a thousand bucks and try to recover the money in court. I simply have to show that indeed you owe me the money, which can be done by a simple IOU signed by you or by witnesses to the event.
Under your idea, I would have to show that you actually received, spent the money loaned and you have not paid it back, something that I would find difficult to do. (In a civil case, you have to show that you indeed paid me back but I failed, say, to return the IOU.)
What needs to happen is to make an exception for civil cases when the government acts as a “person” in such cases.
(Score: 0) by Anonymous Coward on Friday October 07 2016, @07:45PM
Can you point to a specific case that illustrates the deficiency you claim?
-- OriginalOwner_ [soylentnews.org]
(Score: 0) by Anonymous Coward on Friday October 07 2016, @07:49PM
Nevermind.
-- OriginalOwner_ [soylentnews.org]
(Score: 0) by Anonymous Coward on Friday October 07 2016, @05:57PM
Of course it is comically, blatantly against the 5th Amendment.
The reason it had persisted up until now is the same reason unjust laws always persist: they do until they have screwed over a critical mass of people. It has been so abused now that it is no longer some exceptional law that is being used rarely against some famous druglord. It has degenerated into podunk cops robbing landscapers who are their pickups across a targeted highway. It has become so common and so blatant that Joe Public now has some sympathy for the victims of this theiving practice.