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Civil asset forfeiture and helping the little guy

For years I've thought of writing a post on the despicable use of civil asset forfeiture in the United States but have always found the topic too depressing.

In case you have no idea what I'm talking about, here (without a big burden of links--you can easily google the phrase) is the short version: Despite the Constitution's guarantee of due process of law before depriving any person of property, somehow it has been declared constitutional throughout the United States for both the state and the federal governments to take the property of perfectly innocent citizens when some government agency deems it plausible that that property has been associated with a crime or constitutes the proceeds from a crime. The case is brought against the property; no conviction needs to be obtained for any crime, not against anybody, and certainly not against the owner of the property. The standard of evidence is usually quite low (for example, "preponderance of the evidence" as opposed to the legal "beyond reasonable doubt" that would be required for criminal conviction), no jury is involved, and then the burden is upon the person whose property has been seized to hire a lawyer if he wants to get it back.

I have not read the Supreme Court opinion, in which I'm sorry to say my hero Justice Scalia joined, declaring this practice to be constitutional. I've read that the reasoning had something to do with the seizure of a pirate ship in the 1800s.

Obviously, not only is this practice a gross abuse of power in and of itself, it also simply cries out to be abused in an absolutely blatant and deliberate fashion. As indeed it is. Police departments now count on civil forfeiture to buy their cruisers and other needed equipment, which gives them an incentive to seize people's stuff without due process. Legislatures go along with it because it relieves them of the burden of making unpopular taxing decisions. And bullies in the police force can shake down anybody they like. If you get pulled over for a minor traffic violation and "too much" money is found in your car (where "too much" might be as little as a couple hundred dollars), it can be seized as suspected drug proceeds, and you will probably never see it again. If, unbeknownst to you, a tenant in a rental property you own is growing marijuana, the house may be seized by the government without compensation and without even bothering to convict the grower. (In case you wanted a motive for never owning rental property, there's one.)

Examples of obvious corruption and gross abuse of power against completely innocent people, in cases where no one has committed any crime at all, abound, and I imagine my readers will probably supply some more.

I'm writing this post today because some small measure of reform has come to my own state of Michigan--heretofore one of the worst offenders. An unlikely alliance of the ACLU and the free market Mackinac Center has successfully lobbied for a package of bills recently signed by Gov. Snyder. As the lobbyists openly say, this reform is just a small beginning, and they hope for more. The short version is that these bills raise the standard of evidence somewhat to "clear and convincing" and require that a database be set up to keep track of what asset forfeitures are taking place in Michigan. The hope is that the database can be used to argue for further needed reforms, including most urgently a requirement that a conviction for a crime (somebody's crime, anyway) be secured before assets may be seized. Also needed (and not yet obtained in the current reform) is a requirement that police departments put the value of any assets seized into the state's general fund rather than being able to "police for profit" and earmark seized property to support their local operations. I'm no fan of taxes, but funding police is exactly the kind of thing for which taxes are legitimately collected, and it is a grave injustice to relieve the ordinary taxpayer of the burden of paying for police vehicles by the arbitrary, process-less seizure of property from a few citizens, especially the innocent.

I've thought for a long time that softhearted types (there are plenty in churches) who want to help The Poor need to start thinking outside the box. Instead of assuming that "helping the poor" = More Government, they need to start realizing how the increased strength of the nanny state and the police state are particularly harmful for the underdogs they care about.

This is evident in, among many other places, civil asset forfeiture. Think about a few things: Suppose that you are so poor that you worry about meeting the minimum balance requirements at your bank and so you don't keep a bank account. Instead, you keep your money at home, or in your car. Now the police decide to raid your house because your roommate or your landlord was breaking some law, or they pull you over because your brake light is out, and they find your little pittance of savings and decide that it must be drug proceeds because it's a suspicious amount. Kiss your money goodbye.

Oh, and of course in a civil asset forfeiture you are not entitled to counsel for the defense, because the case isn't against you, no, no! It's against your money, or your house, or your car, and of course those inanimate objects aren't entitled to be represented by a public defender. So if you can't afford to hire a lawyer, you're out of luck. Yet another way in which poorer people are more harmed by corrupt and unjust government policies than people who can afford to fight city hall.

Those at the economic low end of the totem pole or those who do legitimate business in low-income neighborhoods are also more likely to end up in close proximity to other people who are committing crimes, which is more likely to land them in civil asset forfeiture if their assets somehow get "tainted" by someone nearby who broke the law. As I said, a roommate, landlord, someone who borrows your car might cause your stuff to get swept. If you have a small business in the "wrong" part of town, one of your customers could make the wrong use of your foyer or parking lot or could bring stolen goods into the business, and now you could lose your business because it becomes "associated" with crime.

Con-law geek though I am, I don't claim fully to understand how this sort of thing came to be deemed constitutional. But constitutional or not, it's wrong. Dead wrong. It's one place where one would like to think that conservatives, libertarians, and liberals can agree and can get behind changing all of this. Do it for everybody. But if you're the kind of person who wants to do things especially for the poor, then, yeah, definitely do it for them. The practice is so well-entrenched that reform is happening only incrementally, so we need to keep pushing.

Kudos to think tanks like the Mackinac Center for keeping on top of it. May they prevail at the state level in bringing further reform, and may things change drastically at the federal level as well.

Comments (51)

"Con-law geek though I am, I don't claim fully to understand how this sort of thing came to be deemed constitutional."

Do you discount judicial corruption out of hand? How can you ignore the obvious? Judges and those who bribe, intimidate, and extort them are no longer held in check by Christian morality and an Anglo-Saxon sense of fair play. They no longer have a certain fear of God and of the ruin of their reputations that their fathers and even older siblings had. There is no other rational explanation. Justice Kennedy's absurd opinion in Obergefell vs Hodges was an obvious and clearly intentional message to let us know the courts will do nothing against the interests of the powerful.

Well, no. I don't think that either Justice Scalia or Justice Thomas, who both joined (though Thomas with obvious misgivings) in the 1996 Bennis v. Michigan ruling upholding civil forfeiture, did so because they accepted bribes. That's a silly hypothesis.

They did so because in 1827 the court had allowed the seizing of a pirate vessel even though the owner wasn't the pirate. They thought that their originalism required them to uphold the earlier ruling, since it was closer to the writing of the constitution. At least that's my best current understanding of their reasoning, without having actually read their opinion.

But in any event, the SCOTUS has repeatedly upheld forfeiture, and I see no reason to believe that anyone on the court, even those like Ginsberg whom I most dislike as justices, did so because they were bribed.

It's a practice that needs to be challenged and candidates who call themselves conservatives need to be challenged on it because it speaks to their views on so many things. One of the reasons Rick Perry thankfully had to bow out was that he couldn't name a single federal agency he'd abolish (not even the Ex-Im Bank!) if he got a popular mandate result. If you're a "conservative" and abolishing this, the DEA, ATF and so many other federal law enforcement programs don't roll off your tongue naturally on the question, there's something fishy about you.

Also, I believe Scalia also recently (last few years) basically said that even if you could prove beyond a reasonable doubt that you're innocent, once you've exhausted your appeals you have no constitutional right to a new trial. I don't believe he even left an exception for something like the police investigator admitting on his death bed that he perjured his entire statement and planted the evidence. It was pretty much "the government has no obligation to care." On criminal justice issues, Scalia can be a real piece of work.

Well, actually, I might agree with him on that one (about no constitutional right to a new trial) *as a matter of constitutional law*. Of course, it depends on one's interpretation of "due process." But even if he's right as a matter of con-law, it's not a matter of whether the government has a *moral* obligation to care. It's a matter of whether it has a *federal constitutional obligation* to give you a new trial.

I'm a pretty strict originalist, and I'm willing to bite the bullet on quite a few things *as matters of constitutional law* (even when not as matters of policy). I just don't understand how asset forfeiture with no conviction can _not_ be a violation of either the takings clause or the due process clause.

A long-time commenter, I withhold my name because no one likes a braggart. Your article however reminds me of a story.

In Reno, Nev., one day during the early 1990s, I found a hundred-dollar bill lying on the ground. I could have used the money at the time, I can tell you, but took the money instead to the police, filing a lost property report. The hundred dollars seemed like too much money just to take and spend.

By ordinance, I was told, if the money remained unclaimed 30 days, it was to revert to me.

Remembering the money after about 60 days, I returned to the police to inquire. The only claimant to the money had been the city council, who had just taken it. They'd had a meeting, and a vote, I guess, and just taken it. The money was gone. So sorry, said the cops.

To be fair, this is the sole unpleasant experience I have had during my life at a police station or with a city council. We live after all in a fallen world. One should not by cynical! I have had pleasant encounters with police, too, once even in Reno. Still, to the extent to which the story compliments your article's pattern, there it is.

Mike T., the appearance of "tough on crime" conservatism must be upheld, especially when it's being turned completely on its head. Or something like that.

Lydia, interesting you should write about this. I had an unfortunate situation arise a few years ago in which the state of Oklahoma placed a tax lien on my property based on an accounting error made by the good folks at IRS. While I was working to get the mistake by IRS corrected, OK Tax Commission slapped the lien on my house, so I had to switch gears to save the property, so to speak. Long story short, I did as I was instructed by the OK Tax Commission agent who was handling my case - I wrote a letter addressed to the commission detailing how and why the state had based its assessment on an error by IRS (a duplication of an $80,000.00 & change 1099 I'd received from a company I'd done some contract work for), and enclosed with the letter a certified check for roughly $5,000.00 which I borrowed from the bank.

I don't mind getting into the gory details of what exactly went down if anyone cares to know, but the bottom line is this: the OK Tax Commission, upon reviewing my case with the new information (new to them) contained in my 6 page letter, immediately dropped the tax lien on my property and promised to refund the $5,000.00. I don't doubt they would have honored that promise either, had the IRS not stepped in and confiscated every last cent of it based on the original accounting mistake they had made to begin with! Anyway, the 6 page letter I wrote to OK Tax Commission contained several, if not most, of the points you make in the O.P. Regarding IRS, well, ... I don't have a single good thing to say about the agency as a whole, or a single one of its employees/representatives I have had the misfortune of having to work with on my particular case. ...

Terry:

What a story! Not that it excuses (or makes you whole), but for information, will you not eventually get the $5000 back?

He probably won't, through sheer bureaucracy, though I don't know if the IRS actually claimed the civil asset forfeiture law (i.e. that the $5000 was associated with a crime).

"They did so because in 1827 the court had allowed the seizing of a pirate vessel even though the owner wasn't the pirate."

Science is allowed to stand on the shoulders of the past because it is a process of refinement of the truth through time. Human law often starts from a state of insanity and by standing on the past is ever want to refine it.

In other words, while nature's laws have no need of confession of sins, human laws often do. It is pride to not admit that sometimes, in the past, we have been wrong. It is this hubris that undermines many systems of government that lock in a law simply because somebody thought it was a good idea, once upon a time. As much as I respect the Constitution, it is hardly a perfect document nor holy writ. It can be improved and should be, from time to time. The amendment process may clarify parts of the Constitution, but a society that does not, periodically, as a society, review how things are working from whence they started out are doomed to be frozen in time.

The Chicken

The SCOTUS of course cannot amend the Constitution (though in effect, they often do). In this case it would seem to be overturning an earlier _interpretation_ of the Constitution, which obviously could have been wrong qua interpretation, even though it was made in 1827. Of course, I don't know the specifics of the case. Did the owner know that his vessel was going to be used for piracy? Did he consent to its use for that purpose? In that case, it would seem that he could have been charged as an accessory and the vessel seized as punishment for a bona fide crime if he were convicted.

Howard, no. Lydia has nailed it. I won't ever see that money again. Not that I even want it back. You have to understand, it was three years from the time of the initial IRS mistake to the time the lien was placed on my property (2007-2010); I had tried on numerous occasions in the meantime to work with IRS on getting it straightened out, but couldn't make a single stride forward with them. Indeed, IRS believes itself, at all levels far as I can tell, to be incapable of making such errors. In my case, IRS has never admitted to making the initial error(although I have proven it was their mistake, beyond a reasonable doubt), and whenever someone fails to claim an income IRS deems an attempt at "tax evasion," they don't allow exemptions on the amount one "fails to report." So the tax assessed on the non-reported "income" amounts to about half ($40,000.00 in this case) when all is said and done (that's state and federal income taxes combined). IRS deems you negligent, therefore subject to pay penalties and so forth accrued while the case remains open. I was actually fortunate, in a sense, the state placed the lien, because prior to that I was going nowhere fast with these agencies! When it gets to that point, at the state level in Oklahoma at least, you can actually talk to a human being who still has a soul. I know that sounds a little exaggerated, but it really is the truth.

Lydia, I don't believe IRS ever invoked that law in my case, no. You're right to assume the money got ate up through the beaurocratic process. Like I was saying to Howard, fines, penalties (I think even interest) and so forth. In point of fact, I had to have my taxes for that year redone altogether, and I wasn't allowed rhe earned income credits for the kids brcause it was three years down the road. So there ya go.

Something to consider: suppose the police take $10k of your money. It may take $7000 in legal fees to get them to admit that they are wrong and give it back. You're still out the fees required to get it back. It's really just armed robbery with enough due process to make people not lash out with their second amendment rights.

Food for thought: the one group that is hitherto immune from civil asset forfeiture are illegal immigrants. There is precisely not one iota of interest in using these laws to start seizing remittances to Mexico and other locales.

Mike T., exactly! It's legal (therefore moral, ha, ha!) extortion. I've said it many, many times over the past several years. I pointed it out in my letter to the Oklahoma Tax Commission, in point of fact. I mean, at that point I was pretty angry, so I didn't hesitate to tell them exactly what I thought about them. Where's the mob when ya need 'em? Don't take me wrong, Lydia, I merely mean I'd rather deal with the mob than the government and its vultures. They're not *really* accountable to anyone, they just try to give off that appearance.

There's pretty much zero due process. I don't have the link ready to hand, but there was a town somewhere out in the middle of nowhere that was looking for out-of-town license plates, pulling people over for trivial or non-existent traffic violations, somehow getting permission to search the car, and then just taking their stuff. The motorists (who might be, say, moving to a new state) were told that if they didn't give up cash, jewelry, etc. (I believe even a TV set in one case), their children would be held. They were told there was nothing they could do to get it back and made to sign some kind of "papers" signing away their rights to the property. The police could just say, for example, that they "thought they smelled marijuana in the car" and therefore that the stuff in the car was subject to asset forfeiture as being associated with drugs. It was pure shakedown. Absolute corruption. In the end I believe some lawyer noticed that these practices were having "disparate impact" on minorities who drove through the town and brought a lawsuit against the town on _those_ grounds, but the white people were getting robbed just as directly as the black people. Obviously "disparate impact" wasn't the real problem at all, but since other than that there was no oversight and no legal rein on the practice, this was the only thing anyone could find to sue them on.

There's a town in Oklahoma, not more than 30 miles from where I live, like that. I go through there all the time, and they *always* have someone from out-of-state pulled over, a mile outside of town one way or the other, and the occupants of the vehicle are, more often than not, outside the vehicle while officers conduct their search. Town is Kiowa, Oklahoma. I've lodged complaints on several occasions with the city officials about it. All to no avail. (They've never stopped me, fyi, because I have an OK tag.)

Btw, when I said above that I'd rather deal with the mob than the government and their "vultures," what I was alluding to specifically, beyond IRS and their agents, are the "private" government aparatchiks commonly referred to as "tax attorneys." These people are vultures in the strictest sense of the term! Their tactics are ... totally outside the realm of what is due a free people. If ever (God forbid!) you're placed in a situation to have to deal with these miscreants, you'll learn real quick what I mean! In my case I just told them to take a hike, but I felt like my case was pretty rock solid. I can easily imagine cases, however, in which their (money-grubbing) rhetoric would seem overwhelmingly reasonable to their misfortunate victims.

It's Constitutional for the very reasons you cited in your post - it gives police departments a way to fund "off the books" and keeps legislators from having to raise taxes. No other reason.

"Something to consider: suppose the police take $10k of your money. It may take $7000 in legal fees to get them to admit that they are wrong and give it back."--Mike T.

Ah, yes--reminds me of Jonathan Swift's "A Modest Proposal" which (as I recall) begins with something like: "Suppose I own a cow and my neighbor claims it is his." By the time legal process is done, Swift concludes it would have been to his advantage to have simply given his cow away. The essay is worth a revisit and not merely for its wit, but for its naked relevance to the abortion issue.

By the time legal process is done, Swift concludes it would have been to his advantage to have simply given his cow away.

And this is why for all of the whinging of law-and-order types, organized crime has never been able to be cracked in Italy. By the time you are done doing it the right way, the fruits of your labor feel more poisoned than if you had just gone straight to the mob.

There's pretty much zero due process. I don't have the link ready to hand, but there was a town somewhere out in the middle of nowhere that was looking for out-of-town license plates, pulling people over for trivial or non-existent traffic violations, somehow getting permission to search the car, and then just taking their stuff. The motorists (who might be, say, moving to a new state) were told that if they didn't give up cash, jewelry, etc. (I believe even a TV set in one case), their children would be held. They were told there was nothing they could do to get it back and made to sign some kind of "papers" signing away their rights to the property. The police could just say, for example, that they "thought they smelled marijuana in the car" and therefore that the stuff in the car was subject to asset forfeiture as being associated with drugs. It was pure shakedown. Absolute corruption.

I supplied that link a while ago, and might be able to find it later. It was a town in Texas, as I recall. Barely fit to be called a one horse town too.

The situation raises a very fundamental problem of morality, law and authority. What the police did there was armed robbery under law. In many respects, it wasn't even strictly speaking legal under the actual statutes (including asset forfeiture) because it was based on the premise of "who is the jury gonna believe, you or me the decorated police veteran?"

This also creates a very real problem for conservatives because many conservatives are of a mind to say that even if the law is corrupt, we must obey it. In another thread, that point was made about the case of Roy Moore and the state attorney general who is a "conservative" and went after him because "da law iz da law" even if he didn't like it (or think it was morally or constitutionally sound).

The very nature of civil asset forfeiture conceals corruption because it's based on a cop's ability to articulate his sense of a crime. Who is to say that he didn't smell marijuana? It would require a skeptical judge and prosecutor (such almost don't exist now) to see through it and ask why it just so happens that he smells a small amount of recreational drugs whenever someone with just the right amount of assets goes through town.

Now suppose the man threatened with loss of his children had killed the cop out of fear for his family. The state authorities would not weigh the gravity of the situation. They would not question why the cop smelled marijuana when there is no THC in the hair of anyone in the car. They'd brand him a murderer, even though the cop is in effect engaging in highway robbery and threatening to destroy the family under color of authority. I suspect a lot of conservatives would not support the man, and if they did, they would refuse to admit that the whole system is rotten to its core.

It just is the case that law-and-order conservatives almost never concede that the system is filled with corruption and iniquity until it comes home to roost for them. The only law-and-order conservative I know who is now skeptical of the police is one who got pulled over by a cop and got told (paraphrasing) that the only thing that matters is what he chose to put on her speeding ticket (implying that it's more important to not piss him off than be truthful).

The case you were referring to was the behavior of Tenaha, Texas. Here's one of many links on the subject, though it focuses on Texas more broadly.

This brings to mind something that William Binney, one of the major NSA whistleblowers, said about the fallacy of "I have nothing to hide, so I have nothing to fear." Paraphrasing, he said that it's not enough that you think you're doing right. Those in authority, watching you must also believe it and want to believe it.

You get your day in court after the police steal all your stuff or an overzealous prosecutor charges you with 15 felonies for a mistake. Eventually, "justice is done" perhaps and the court rules in your favor. Vindication is hollow when you have to blow your life savings to get it and those responsible are not forced to make you whole. That's not justice. The government agents get to move on with life, retire, collect a pension, etc.

Lydia,
How do you explain the majority opinion in Obergefell vs. Hodges, then? It was so obvious, like Jeremiah Denton blinking "torture" in morse code.

Steve P. sheer ideology. No bribes required. Heck, the majority of the majority were slam dunks already, no surprise there. And Kennedy has been a loose cannon forever. Everybody knew it might well go this way, with exactly those people giving exactly that opinion, on purely ideological grounds alone. Both Kagan and Ginsberg should have recused themselves.

The situation raises a very fundamental problem of morality, law and authority. What the police did there was armed robbery under law. In many respects, it wasn't even strictly speaking legal under the actual statutes (including asset forfeiture) because it was based on the premise of "who is the jury gonna believe, you or me the decorated police veteran?"

Presumably, it wasn't really "under the law" because, just for example, the police really DID NOT have probable cause to search the car. So if the actual facts were elicited in court, the court would rightly have said "the police did an illegal search". That's not "under the law". So the correct description would be more like "What the police did there was armed robbery under the color of law, using a pretense of the law rather than the law itself.

I would love to see a change where police like this are not only charged with robbery as such, but ALSO charged with things like obstruction of justice, corruption, etc, with maximum sentences for those crimes, all rolled in. When those properly held to a higher standard go bad, their bad is a worse evil and needs to be punished more harshly.

But the crimes here depicted are NOT "a very fundamental problem of morality, law and authority". They show rather the practical problem of putting law and authority into practice using fallen men. There have always been men who legitimately take on authority for the right reasons, and then become corrupt and use their power for themselves. This is as old as the hills. It is certainly the largest reason the Founders saw fit to separate the powers of government between many parties, with checks and balances. But the Founders also said that "eternal vigilance" is still needed: no "system" , by itself, can solve the problem of corruptible officials, the people must take upon themselves the obligation to keep the officials honest. And if they won't exercise that vigilance, eventually they will reap the harvest of that neglect: corruption and vice in city, state, and federal governments. Even, possibly, to the point where the system itself is degenerate, where it more promotes evil than good.

Tony, I agree that if the police lied to make up a probable cause to search the car, then they were acting outside of the law.

However, the civil asset forfeiture law _itself_ is manifestly unjust. The standard of evidence is low, the person who is punished by the confiscation does not even have to be _accused_ of a crime (it can just be that his property was used for a crime by someone else), and the burden of proof is placed on the person whose property is confiscated to prove his property "innocent" in order to get it back.

That all _is_ the law, and it is wrong even if the police operate inside of its limits (such as they are).

To make it concrete: If I were a policeman and I knew that innocent Rob had loaned his car to his friend Joe, that Joe had used the car to meet a drug dealer and buy drugs (in the car), and that Rob knew absolutely nothing about this, had no reason to suspect that such a thing would happen, and would never have consented to that use of his car, it would be _completely legal_ (under asset forfeiture) but also _completely wrong_ for me to confiscate Rob's car and auction it off, on the grounds that it was tainted by being "used for a crime."

Presumably, it wasn't really "under the law" because, just for example, the police really DID NOT have probable cause to search the car. So if the actual facts were elicited in court, the court would rightly have said "the police did an illegal search". That's not "under the law". So the correct description would be more like "What the police did there was armed robbery under the color of law, using a pretense of the law rather than the law itself.

The matter of the search is itself something of a red herring. If the police officer shows up and claims on the spot that he smelled marijuana on you as soon as you rolled down the window, then it's game on with civil asset forfeiture. He can seize your vehicle under those statutes (along with everything in them), take you in and claim your property was related to a criminal offense.

But the crimes here depicted are NOT "a very fundamental problem of morality, law and authority". They show rather the practical problem of putting law and authority into practice using fallen men.

Actually, no it is worse than that because civil asset forfeiture is itself wholly divorced from any notion of concretely proving guilt on the part of the owner of the property. Technically, if you went out of town for a month and your home was broken into and used as a meth lab, the police could seize it. Sure, you could get it back, but only after dropping easily $10k to prove that you didn't consent to it being used as a meth lab.

Civil asset forfeiture adds an additional dimension to the basic problems that the law and authorities have in a fallen world in that the burden is by nature so low that cops can just say anything semi-plausible. This is not a court of law going through a pains-taking process of ascertaining truth, but a system that by its very nature lets the police shoot from the hip on taking property and deal with the facts later.

Can it be reformed? Sure, but why bother reforming it? It's a cesspool of injustice and corruption. You might as well begin making a case for when extra-judicial executions by police are justifiable if you go down that route because either way you're entertaining the notion of letting the police sidestep due process and go straight to deprivation of liberty.

Sure, but why bother reforming it?

* Just dump the system entirely. Better yet, nuke it from orbit by passing a federal law that specifically adds it to the civil rights laws and that also specifies that if an officer is enforcing it on the interstate highway system he may be shot as a highway robber under federal authority.

I find it notable, and shocking, that the most radical reform even dreamt of by anti-forfeiture activists (dreamt of as potentially politically feasible, that is) is that _someone or other_ would have to be convicted of a crime connected with the property before it can be seized.

Perhaps I'm misinterpreting, but as far as I can tell, this future possible reform is _not_ that the person who actually owns the property would have to be convicted. It could _still_ happen that a perfectly innocent person would have his property seized because someone else committed a crime on or with his property without his knowledge or consent. The reform hoped for is just that _some crime or other_ connected with the property would have to be shown in court before a jury beyond reasonable doubt before the property could be seized.

Don't get me wrong. That would be a big improvement over the current situation and would stop a lot of the policing for profit. But it would still be objectively unjust if the actual owner of the property was utterly innocent of anything but having his property accidentally be in the wrong place at the wrong time, or having one bad friend, or being a nice guy and letting someone borrow his car, etc.

Just a question to the peanut gallery...

In the, "smell marijuana," scenario, if the driver asserts, "I'm a certified chemist and I'm saying you have no probable cause," does the police have to back off? Assume the chemist is a legally recognized expert. In other words, why do untrained police get to assert probable cause, if someone has more right to a higher probability of certainty? Is it just that this has to be decided in court? If a police officer has what he thinks is probable cause to think someone is drunk (public intoxication), but I tell the officer that, as an M.D. (who happens to be on the scene) that the man, clearly, has a neurological disorder affecting speech and motion, does the officer still have grounds to arrest the alleged drunk? In other words, can probable cause be overridden?

The Chicken

In both of your scenarios, there are variations where the assertion of educational credentials as authority could be used to cover up a crime. You are also outside of the chain of command which makes it effectively impossible for you to make an officer stand down by authority.

Now in both cases, your statements could pose a great deal of risk to the officer if he chooses to act. For instance, if the man were having an attack of diabetic shock and the cop treated him like a drunk, and you told him that he was wrong, he could probably be gotten dead to rights in civil court, if not criminal court as well. It's just that you cannot say "no, you cannot make that arrest because it's a diabetic episode, not intoxication."

In other words, can probable cause be overridden?

IANAL, but in your neurological example, the officer would reasonably gain enough contrary evidence that it's possible one could argue an unlawful arrest. In that case, you have the right to resist that arrest with force that matches what the officer brings to bear. There is also a high probability that even if a prosecutor wanted to bring charges, he couldn't if say, the man's wife shot the cop dead in anger over him trying to arrest her dying husband anyway (few juries would vote for that).

This is why police should have never gained law enforcement powers beyond what the general public held. As originally conceived, police were just professionals doing what every ordinary citizen could do. As envisioned by Robert Peel, police in English-speaking countries were not a special class, but merely full time law enforcing citizens. Under that system, a doctor could lawfully draw his weapon and order the uniformed officer to stand down and surrender to arrest because they possessed the same arrest powers and the doctor had superior medical authority.

The majority of problems with police and prosecutors comes from qualified immunity (in the case of police) and absolute immunity (prosecutors have it in court). The rest come from defanging the public in their dealings with the state.

Well, the law does not understand chain-of-command very well, then. A doctor who diagnoses the driver to be a diabetic in insulin shock(by blood stick), has more moral authority than any police officer who claims the man is drunk. A badge does not confer superior estimation ability of probable cause.

No one owes obedience to error, although one might do so as charity, if the matter is slight, but necessity knows no law and the doctor could go to jail (so could the police officer) if he fails to act or lets the officer act wrongly, in a situation where death is possible, so, at least morally, the doctor is immune from the officer's actions. The law can be rightly ignored in certain circumstances.

The problem with civil forfeiture, in part, is poor cause-and-effect logic and very poor methods (read no method in some cases except imagination) for assigning probable cause. Perhaps, police could be required to study Bayesian statistics.

The Chicken

Well, the law does not understand chain-of-command very well, then. A doctor who diagnoses the driver to be a diabetic in insulin shock(by blood stick), has more moral authority than any police officer who claims the man is drunk. A badge does not confer superior estimation ability of probable cause.

Moral authority and legal authority are generally two separate things. There are far more egregious areas than this relatively rare occurrence where they don't overlap, such as in cases of domestic disputes and parental rights. In general, the law presumes that its agents have superior acting authority to all other authorities when their paths cross. Heck, you can even find cases of police arresting fire fighters because the firemen told off the police when the police demanded they move their vehicles at the scene of a crash (the fire responder vehicles were positioned to protect the wrecked vehicles from traffic).

It's important to remember that it wouldn't really matter so much that the police have more authority than a doctor who happens to be on the scene to decide "probable cause" for something (e.g., to think that someone is drunk) if the weak evidential standard of probable cause, decided by a single policeman, conferred only _relatively minor_ authority to carry out an action. For example, if it means that you have to take a breathalyzer test on the road, that's usually not that big of a deal. To get arrested and booked for the night should require better evidence, though. And so forth. A brief, low-key traffic stop on the basis of a snap "probable cause" judgement is probably not going to cost anybody his life. But being able to confiscate your vehicle on the judgement of one policeman is way too much.

This is why asset forfeiture is so bad: Not because cops don't have to judge probable cause sometimes as a guide to their actions, not because it's not legitimate for them to do so, but because _these_ actions are _way_ too consequential and draconian to be permitted on such a weak basis.

If the police officer shows up and claims on the spot that he smelled marijuana on you as soon as you rolled down the window, then it's game on with civil asset forfeiture. He can seize your vehicle under those statutes (along with everything in them), take you in and claim your property was related to a criminal offense.

My point, Mike, isn't disputing that whether he can get away with lying and then use the (evil) law to get your property. Obviously, he can, given the current state of affairs. My point is that LYING about it, and then getting away with it because of additional bad laws, isn't the same thing as "according to the law". Let's put it this way: if a cop wrote into the police report "I told the guy I smelled pot, but it was a lie, I couldn't smell anything", the car owner would (I presume) still be able to recover his property by jumping through the correct legal hoops - if he didn't run into even more corrupt judges breaking other laws. The success of getting away with taking property by lying about the facts is not, properly speaking, _according_to_law. (Still. For the moment).

My point is that LYING about it, and then getting away with it because of additional bad laws, isn't the same thing as "according to the law".

There's lying, but there's also honest ignorance or maybe he did smell pot but can't prove it was properly actionable against the property owner. The law makes it easy for a cop to seize the car if, say, the driver is driving a stoned friend home from a party. All sorts of scenarios where the owner isn't guilty of an offense are still in the realm of possibility.

And one of the issues that is arising across the spectrum is a realization that police are often habituated and even encouraged to not think too deeply about this, but shoot from the hip, seize and raise funds. It is not only an unjust law, but it creates perverse incentives. One of which is that it emphasizes drug busts over common law felonies. The former can carry huge windfalls for the police, and most of the time the agencies involved get to keep a huge percentage of the seized value to use as they see fit. And yes, that includes things like buying extra nice vehicles, throwing lavish parts and stuff like that.

This is topical... An entire Florida police department was busted for money laundering for drug cartels. From the sounds of it, they selectively used civil asset forfeiture to help themselves and the cartels (by making it look like they were doing their jobs, but then they handed a lot of the money back to the cartels). Just add this to the laundry list of reasons these laws suck.

Mike T,

You say,

"The former can carry huge windfalls for the police, and most of the time the agencies involved get to keep a huge percentage of the seized value to use as they see fit. And yes, that includes things like buying extra nice vehicles, throwing lavish parts and stuff like that."

Here I can speak from experience -- I work in the budget office for the City of Chicago (don't run around and tell everyone, I keep this on the down low) and we are frustrated by how the Police use the Asset Forfeiture budget as their "slush fund." Not really for crazy stuff like 'lavish parties', more like, stuff that should be properly budgeted and accounted for on separate line items so we can track how the heck they (the Police Department) is spending their money.

For example, I just discovered this past week they are using their Asset Forfeiture account (one of my colleagues asked me about a strange line of funding she didn't recognize) for the annual fee we pay for the technology on the cameras all over the city to respond to gunfire. It is this kind of technology expenditure that might make sense for the police, but again, why they don't properly budget for it drives all the number crunching types in my office crazy.

As envisioned by Robert Peel, police in English-speaking countries were not a special class, but merely full time law enforcing citizens.
Mike P, Interesting. Does it matter that Englishmen are not, properly speaking, citizens but subjects?

In the context that Peel intended, certainly not. It was the duty of every man to assist in the execution of the laws of the realm where he could. See the posse comitatus as an example.

I'm sorry, Mike, but that makes no sense to me. The sheriff of a county has the power to "call on" the citizens to form a posse to pursue law-breakers. This means, inherently, that the sheriff has powers to CALL that the people didn't, themselves, have on their own. Generally, a posse assembled by a sheriff consists of citizens thereby deputized for the immediate time, for a specific limited purpose.

Generally, police are deputized with certain powers of the sheriff, and they carry those powers in performance of their role not just for the immediate need and purpose, but generally. These powers include, for instance, the power to stop a person, and to demand their name. Ordinary citizens DO NOT have these powers. Upon reasonable suspicion, police have the power to search a person - ordinary citizens do not. Police have the power to arrest even for misdemeanors, while ordinary citizens do not (it is usually limited to felonies). While police do not have unlimited powers, they do have powers that go beyond those of ordinary citizenry.

This means, inherently, that the sheriff has powers to CALL that the people didn't, themselves, have on their own.

That's like saying that because the state has the power of conscription that the people don't have the power to form a voluntary militia, which factually they do. How else do you explain the existence of private militia groups throughout history and mercenary companies?

Upon reasonable suspicion, police have the power to search a person - ordinary citizens do not.

Private citizens can also get search warrants, and the power to search a person is greatly limited anyway.

While police do not have unlimited powers, they do have powers that go beyond those of ordinary citizenry.

All of the deltas you cite are part of the point I was making, which is that as envisioned, the police were not a special class with special powers that made them superior to the common man. I would also hazard a guess that in the early 19th century it would not have been illegal for a store clerk to detain a suspect and search their person for stolen goods because the English-speaking world was less legalistic back then.

By the way, Virginia has an excellent foundation for privatizing professional law enforcement. Every VA police officer should have to hold that license to keep their job, and upon forfeiting it in civil or criminal court should lose their police powers.

Private citizens can also get search warrants,

Yes, but getting a search warrant is obviously not the same thing as the police power to search your person upon reasonable suspicion without getting a search warrant.

I would be in favor of more standards and qualifications imposed on policemen, and in favor of making sure criminal behavior of police is actually treated as harshly (or even more so) than the same criminal behavior in non-police. I am also in favor of citizens taking a more pro-active stance on protecting themselves, roles that some would prefer to leave to "the police". But given how litigious our society has become, any citizen who carries a gun and presumes to make a citizen's arrest has to be aware that he is taking certain risks regarding civil and criminal penalties if he get's it wrong. And given how easy it is to make a mistake with a gun when your adrenaline is pumping, I would want considerably more than 40 hours of training, or even the suggested 130 hours, for any non-police special conservators of the peace who are carrying guns.

That said, if private SCOPs became more common, I would be afraid that in some places (like where drug lords and mafia rule) it would be (in a practical sense) impossible to distinguish between a legitimate SCOP and a mafia henchman making his rounds enforcing "da law" as mandated by his boss. The only solution to a situation like that would be having every adult carry their own weapon, and prepared to use it, and then (like in the old west) there would be all those cases of mistaken identity, mistaken interpretation of intentions, killed, maimed and crippled bystanders, etc. While it is possible to go too far (and in places it has gone too far), there are actual reasons society has moved toward having officially appointed police be the main allowed users of force and violence.

So, what would you say to a law that provided you (anyone - except criminals and the mentally incompetent) can carry a gun (not concealed) after you complete a 300-hour training course? And that you can carry a concealed one with another 200 hours?

Yes, but getting a search warrant is obviously not the same thing as the police power to search your person upon reasonable suspicion without getting a search warrant.

Again, the ideal was to have police be more or less a professional law enforcement militia of sorts; a standing posse comitatuts, paid for with tax payer funds. That we have reached a point where cops are clearly empowered in all sorts of ways beyond the average citizen is a different issue from how it was originally envisioned in the 19th century.

I would be afraid that in some places (like where drug lords and mafia rule) it would be (in a practical sense) impossible to distinguish between a legitimate SCOP and a mafia henchman making his rounds enforcing "da law" as mandated by his boss.

This already is a problem now, with armed robbery gangs masquerading as SWAT units. To some extent, it is just intrinsic to the system because anyone can pretend to a uniformed officer if they buy the materials or make them. However, there are things that can be done to mitigate that such as controlling officer behaviors in such a way that people know that "real cops don't do that." (And if they do, other cops aren't going to come to their aid)

So, what would you say to a law that provided you (anyone - except criminals and the mentally incompetent) can carry a gun (not concealed) after you complete a 300-hour training course? And that you can carry a concealed one with another 200 hours?

I don't support the licensing of gun carrying (concealed or open) at all, so that part is a moot point. I think the law should be changed as follows:

1. All arrest powers are held by the citizenry except in matters such as domestic matters where only detention for the purpose of remanding into the custody of the sheriff would be legal due to various conflicts of authority and interest.
2. All arrests made on a reasonable reading of the facts, with a level of force appropriate to the danger of the charge and the current behavior of the suspect, and pursuant to a law for which an arrest may be effected are subject to qualified immunity.
3. Any arrest made without a basis in statutory or common law is unlawful, and it is the duty of the one attempting to execute it to know the law they believe they are enforcing.

Reasonable modifications can be made so that no one need know the exact nuances of case law on these matters to be safe, but the prevailing rule should be "if you don't know with a high degree of certainty, don't arrest."

In general, I think you'd see private citizens mainly using that authority on felonies. I'm sure someone would try enforcing a noise ordnance or something, but if they don't have tools that can measure the volume adequately, that would again constitute an unlawful arrest.

I'm sure someone would try enforcing a noise ordnance or something, but if they don't have tools that can measure the volume adequately, that would again constitute an unlawful arrest.

Hah. At midnight, I was woken by my neighbor across the street, 90 feet away, revving his unmuffled 1970 hot rod to celebrate the New Year. I have bad hearing (documented, with hearing aids), and had ear plugs in. By any rational basis a car revving that loud was violating public peace. But it would have been a stupid arrest anyway.

All arrest powers are held by the citizenry

The one getting arrested is a citizen too. Doesn't it complicate the matter?

The police arrests people by authority. In many countries, England for one-India for another, the police is lightly armed--carrying a stick mostly.

The citizen's arrest--won't it proceed by the way of preponderance of power? I arrest you since I happen to have greater power--guns, accomplices etc.

This is a really good article on civil asset forfeiture. It has some outstanding examples of how real and innocent people get caught up in the system all the time.

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