The government ultimately has to prove its case in court, but they can’t predict with certainty how a judge and jury will rule. If they lose, they give the money back.
If an officer had probable cause that someone was smuggling money, they would never have a civil asset forfeiture -- it would be a criminal case from start to finish.
The fact that the law was designed to end run around constitutional protections speaks volumes about it and its authors.
If the officers have no reason to suspect that you actually committed a crime and arrest you solely for their own gain, then yes, it's a kidnapping.
The problem here is that there's no evidence showing that assets should be "forfeited", cops are stealing people's stuff because they can.
The farce of "asset forfeiture" is in treating the asset, and not the holder of the asset, as an entity which may have civil claims brought against it. In effect, forcing the owner to act as its defender. This is a exploitation of the legal system. If they truly believed the assets were the result of a crime they should have to prove probable cause, and hence justify, their right to steal (i.e. seize/freeze) that property in preparation for a criminal/civil trial.
If they lose that trial, then even so, the seizure was justified and everything is fine. The question now is, are we as a society comfortable granting the ability for a single individual, i.e. a peace officer, the ability to justify in its entirety, their actions, even with massive conflicts of interest?
I would hope the answer is no. We have the judiciary to justify these crimes of the state and in so doing limit their effect on the innocent by preventing abuses of power due to conflict of interest.
Universal accountability and review of justification is the key to preventing the tyranny of the few bad peace officers in positions of extreme situational power from destroying countless lives and reaping massive personal benefit while doing so.
An effective way to do this is to take the position that hypocrisy is unacceptable. If it's an act which is unlawful for a person to commit, the state must actively justify itself (before the fact) in order to commit that same act, according to the social contract. If it doesn't, there may as well be no law - for what is the purpose of the law but to protect those without power from those with it.
Parhamovich said the officers implied that carrying that much cash was illegal. He lied and said it was a friend’s.
He brought his “life savings” with him on a road trip, hidden in a speaker, and then lied to the police about it. It doesn’t take a cynic to see how ridiculously suspicious that is. There’s plenty of material to start a civil forfeiture case, where the government has to ultimately prove by a preponderance of the evidence (ie “more likely than not”) that the money was the proceeds of illegal activity, the same standard as lawsuits between private citizens.
This is not a theft or robbery. It’s the police failing to convince a court in the end.
Why seize things upfront in cases like this? If they let the money go, the government would likely never see it again. The goal is to stop organized crime from successfully moving money around and laundering it. It was only a few decades ago that organized crime operated with near impunity in this country. Laws such as RICO and those strengthening civil asset forfeiture are no small part of our success in turning the tide against criminal organizations.
It’s easy to forget how we got here, but if we let uninformed outrage rule the day, then we risk returning to the time when these criminal enterprises spread fear and violence without consequence.
It is always worth investigating reform, but you should think twice about demonizing those who are carrying out the instructions we gave them.
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Edit: HN is rate-limiting me, so I’m responding to erpellan’s very good point here:
You’re right that it’s not sufficient reason for seizure by itself, it’s actually been litigated to that effect before iirc. But combined with other factors, like lying to the police (a crime itself in many jurisdictions as Michael Flynn has just learned), it can help establish the burden of proof necessary for seizure pending litigation.
(Further, he consented to the seizure in this case.)
'Acting suspicious" warrants asking questions, NOT taking things when those questions don't turn up anything. The idea that it stops organized crime is also rediculous. No crime Lord was ever brought down by civil asset forfeiture. They work that statistic into their prices like any other for-profit Enterprise would and go on with business as usual.
I'd also clear up the "given orders" bit. You cannot really make a good case for police departments ordering their officers to simply take any and all money they see. That is left to the officers discretion. In this case, the officer decided to abuse his power over the general population. To take your orders idea to the end; Let's assume that the police department as a whole requires such theft. We aren't in a country without freedom of the press. Any one of those officers could (and indeed had a duty to) record and publish the illegal order. If such an order exists, then EVERY officer is willingly complicit.
Finally, let's say that we do need limited ability to lock up people's things. That should most definitely involve a case against the individual rather than against the possession itself. It should involve the rights to an expidited trial. Most importantly, it should involve a large burden of proof like any criminal case rather than simple majority.
I’m not claiming that police have a moral carte blanche for overzealous seizures. I’m saying that when they do their duty in good faith and then lose in court, we shouldn’t jump to calling them robbers.
To your last point, the standard in civil court is preponderance/more-likely-than-not/“majority”. Civil asset forfeiture is not a criminal conviction, carries no risk of prison time, and involves solely the transfer of property from one (who is not entitled to it) to another (who is at least more entitled to it). If I sue you for everything you’re worth, or claim rightful ownership of your land in an action directly on the property, I only need to prove my case by a preponderance. Why should it be any different here?
A lot is made over the fact that the civil action is against the property instead of the person it’s being seized from. This isn’t as relevant as it sounds and it has nothing to do with the standard of proof being lower: the standard in all civil cases is preponderance of the evidence.
The suit is against the property because it’s an in rem lawsuit where the only thing being litigated is the disposition of the property. They are not trying to prove that the person it was seized from did anything illegal, just that the asset itself is the proceeds of a crime, whoever may have committed that crime.
You lose everything based on accusation alone. In keeping the money without cause, civil forfeiture becomes just another shakedown.
Sorry, got lost about the second paragraph: are we talking about cops like the ones in the article, or the Mafia?
You’ve ignored the entire substance of the argument and produced a retort that people who agree with you will like. I think that accomplishes nothing but lower the standard of discourse and miss an opportunity for mutual understanding.
You’re just willfully ignoring my argument at this point. It should broadly work this way because it’s proven effective in combating organized crime. Disagree if you’d like, but don’t pretend that I’m not giving a reason.
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Edit: I’m rate limited, but in response to ng12:
I agree that it’s important to keep in mind the balance between civil liberties and effective law enforcement. They are competing and worthy interests necessarily in tension. I think the unique problems of money laundering and illegal money-in-transit justify a system that allows the police, acting on an appropriate level of suspicion (e.g. probable cause), to seize pending further due process.
There is definitely room for reform, especially in how that further due process works, and in creating disincentives for overzealous seizures.
itrontron, law enforcement powers certainly protect civil liberties too, but also necessarily define their limits. Your right to liberty ends where the state’s right to detain you starts. Your right to property extends to where the state’s right to seize it begins. And so forth.
How can you call that "due process"? In these cases the money is never proven to be of illegal origin, the owner never convicted of a crime. I agree with you that there's a balancing act but civil forfeiture has fallen off the tightrope long ago.
Hypothetically, even if that were true, does that not sound crazy to you? That the government would launch a civil suit against you for the crime of possessing money?
Edit: Just read that you're in law school. You truly terrify me.
Edit: It looks, unfortunately, like you have made a habit of skimping on civility in your comments on HN. That is not the kind of site we want, so please up your game if you want to keep posting here.
Civil liberties are not opposed to effective law enforcement; enforced guarantees of civil liberties are a key means by which law enforcement is made to actually enforce the law effectively by doing the work to identify actual wrongdoers and hold them accountable rather than presenting the illusion of effectiveness by setting up easy scapegoats and/or using “law enforcement” as a pretext for implementing the personal interests of the law enforcers.