[esics6A]

Civil forfeiture is a direct and obvious violation of the US Constitution and shouldn't even exist under the USA legal system and is dangerous to the US legal system:

"Article the sixth... 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."

Police under the US Constitution have to go before a judge and court and make an Oath under perjury of law describing the items to be seized. There has to be a justification and supported by affirmation meaning evidence and supporting facts. In the case of the building that was seized it was operating a perfectly legal business under state law. It had the necessary licenses and permits. There needs to be a direct challenge against this type of extra-judicial seizure in the US Supreme Court as it's a clear challenge to the entire operation of the rule of law and legal system.

[arcticbull]

The workaround under which civil asset forfeiture operates is that they're not charging the property owner - or the property holder - with anything. They're bringing a civil case against the property itself (jurisdiction in rem). The property itself is the defendant. [1, 2]

Which leads to some pretty hilarious case titles:

"United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls"

[edit] "South Dakota v. Fifteen Impounded Cats"

[edit] "United States v. One Solid Gold Object in Form of a Rooster"

In my opinion this tactic should be illegal.

[edit] As far as I know this only really exists in the US, and in Canadian admiralty law (so, only in the US).

[1] https://home.treasury.gov/policy-issues/terrorism-and-illici...

[2] https://en.wikipedia.org/wiki/In_rem_jurisdiction

[some_random]

It obviously should be illegal, it's a legal shenanigan on tier with "your honor I didn't assault that man, I was simply swinging my fists and his face got in the way"

[cameldrv]

The issue is that in rem jurisdiction was originally intended and justified for cases where the owner of the property was unknown or beyond the reach of the law (say overseas.) The early cases were things like an overseas shipper not paying proper import taxes. For cases like this, in rem seems reasonable to me.

Where things went off the rails is when they started applying this to cases where the owner of the property was known, and that owner should have their normal fourth amendment rights.

[Buttons840]

So the defense of violating people's right to be secure from seizurs is some mumbo jumbo about charging objects with a crime? How does charging anyone or anything relate to the 6th amendment?

[mometsi]

The "defendant" arg is passed by value and can't be null.

The hack they came up with is to just disable type checking and pass in whatever object they have available.

TFA describes the inevitable runtime errors

[dimal]

How on earth is this able to stand? It’s absurd. Have challenges made it to the Supreme Court and lost?

[marcosdumay]

Lawyers have that habit of taking an obviously false fact and rewrite it so that you can't prove by Boolean logic using laws or prior legal decisions as premises that they are false. Instead, you have to recourse for synonyms or even to the words meaning (some times, the meaning as used, not as the dictionary says). Then they pretend the new writing is a completely different thing from the meanings it convoys, and that what they said is absolutely true, since you can't algebraically prove it's false.

That practice should be a crime, by itself.

[pmyteh]

It's common in admiralty law everywhere. If you have a ship that hasn't paid its docking fees, what can you do? The owner is an ocean away and won't come to court even if you find a way to inform them. If you let the ship sail the port will never be paid. It can be arrested and, if necessary, auctioned to pay the debt. But you can't do that without a court order. So there is an in rem action against the ship itself. It makes perfect sense in that context (and in the one that other commentators have mentioned, which is unaccompanied packages of contraband). Also prize and salvage actions, which are also admiralty proceedings.

The difficulty comes when you stretch the concept like with civil forfeiture. It's not even necessary: England and Wales has the Proceeds of Crime Act to allow seizure and forfeiture of criminal property and all the cases under that are ordinary in personam actions between the state and the putative criminal.

[theptip]

I didn’t know this, thanks. This is preposterous. I was already strongly opposed to civil forfeiture but the shaky constitutional foundation makes things even worse (if that was possible).

[Sohcahtoa82]

Which just goes to show how absolutely fucking insane our court system is.

Any sane court system would believe that charging an inanimate object with a crime is beyond bonkers.

[JPKab]

The case titles are utterly hilarious, and do such a great job in highlighting the absurdity of this entire process.

[whiddershins]

Creative accounting can still be fraud.

Bringing a civil suit doesn’t change the fundamental fact of this being unreasonable seizure. It’s seizure. And it’s unreasonable.

Naming it something else or inventing a process for doing it doesn’t change reality.

[the_only_law]

> The property itself is the defendant

Hope it has a good lawyer then I guess?

[r3trohack3r]

One of my favorite (although also sad) was the time the U.S. Government sued a bunch of shark fins: United States v. Approximately 64,695 Pounds of Shark Fins.

[thelock85]

I'm curious to if/how this relates to corporations having free speech rights under Citizens United vs. FEC.

Property is an asset, not a corporation (though could a corp. be an asset of a holding company?) but philosophically-speaking, "property itself as a defendant" and "corporation as a legal individual" seems connected.

[8note]

Next we'll start charging animals of murder again. Maybe Chassenée's rats will show up for the US government to be tried

[fnordpiglet]

Here is a lengthy and relatively accessible discussion of how the mechanics work. It’s essentially a byproduct of the language in the Controlled Substances Act and a few procedural tricks. Aka another way the war on drugs has harmed us at a fundamental, moral, and constitutional level.

https://www.yalelawjournal.org/feature/the-constitutionality...

[jjoonathan]

I know that courts just interpret the constitution to mean what they want, but they really outdid themselves on this one.

> 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.

[oceanghost]

We "follow the constitution" for abortion rights but when it comes to NSA surveillance we look the other way.

[martincmartin]

> There needs to be a direct challenge against this type of extra-judicial seizure in the US Supreme Court as it's a clear challenge to the entire operation of the rule of law and legal system.

There has been, and the Supreme Court upheld it. As I recall, they didn't even bother hearing the case.

[s1artibartfast]

Didn't hear /= upheld

[vmception]

Since it has been ruled constitutional, that leaves two options:

1) change all state laws to nuke the practice

2) leverage the practice much more heavily such that more important and influential people want to nuke it

[zugi]

> change all state laws to nuke the practice

Even that's just a start. According to https://www.forbes.com/sites/nicksibilla/2018/12/19/cops-can..., when one state banned civil forfeiture, it was so profitable that several cities kept doing it in violation of the state law, until courts finally forced them to stop 3 years later.

So next the federal DEA stepped in. Since the federal government still practices civil forfeiture in the state, local police agencies are encouraged to tip off the DEA to any property that might be federally seizable, and then the DEA pays kickbacks to the local police force that provided the tip.

This all sounds like racketeering and conspiracy to me. But you see, when the federal government does it, it's NOT racketeering and conspiracy.

[coryfklein]

Let's say my vehicle is stolen, and police find a vehicle at my neighbor's house with the identical make, model, and year but with the VIN sanded off. And this neighbor just so happens to operate a shipping company that specializes in shipping vehicles out of the country, but has never been convicted of anything criminal.

How would you say we should handle this scenario? We have a good reason to believe that the property is actually mine, and also that if it is not seized soon then it will be lost forever. (Since, as we all know, court rulings happen on much longer time scales.)

If you have an overly aggressive civil forfeiture law then the police can seize things when they shouldn't. But if you have none, then don't you hamstring law enforcement unnecessarily, and instead provide greater incentive for crime?

[jimrandomh]

I think you have a pretty fundamental misunderstanding of what civil forfeiture is about. Civil forfeiture would mean the police take the car, don't return it to the rightful owner, and don't charge the thieves with a crime.

Police don't need civil forfeiture to hold evidence in advance of pressing charges, or to recover stolen property and return it to its rightful owner. They only need civil forfeiture if they intend to keep the car for themselves.

[jdkee]

They can get a warrant based on probable cause signed by a judge.

[Animats]

That argument might actually hold up with the current originalist Supreme Court. It's worth pursuing. There are upsides to constitutional originalism. There's no reason the Fourth Amendment shouldn't be taken as literally as the Second.

[dragonwriter]

> That argument might actually hold up with the current originalist Supreme Court. It's worth pursuing. There are upsides to constitutional originalism. There's no reason the Fourth Amendment shouldn't be taken as literally as the Second.

You are confusing originalism with textualism (there is an argument that the current Court’s dominant philosophy [or mode of rationalization, for the more cynical] is both originalist and textualist, but your particular argument is more of an appeal to textualism than originalism.)

[zerocrates]

The Fourth Amendment is tricky... it's got that word "unreasonable" you can just drive a truck through.

And all the stuff about particularity of warrants is nice, but it doesn't actually lay out when warrants are required.

[Sohcahtoa82]

This is why Legalese was invented. They have to be as explicit as possible to avoid any possible interpretation of what was written other than what was actually meant. A legal document with any phrasing that is "subject to interpretation" will eventually be interpreted in a way the origin author did not intend.

"Unreasonable" is a highly subjective term and should not exist in legal documents.

[throwaway894345]

Seems like the ACLU should go to bat here. Isn't this exactly the sort of thing they exist to do?

[anotheracctfo]

"Do not quote laws to we who hold swords."

[thaway2839]

It clearly isn't a direct and obvious violation.

Even ignoring any say the rest of the Constitution has on civil forfeiture, even the parts that you quote do not prevent civil forfeitures on their own.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"

The rub here is "unreasonable". The fact that the constitution explicitly proscribes "unreasonable" seizures means it also allows "reasonable" seizures.

So there is no clear answer here because unreasonable is completely subjective.

[Retric]

It’s only ambiguous if you ignore the clear intent of what was written. Just like how the right to a “speedy” trial somehow allows them to be delayed for over a year. Sorry the language isn’t ambiguous, the language is being ignored.

[hn_throwaway_99]

There is a very long history of jurisprudence over the past 2+ centuries that has done a pretty good job of defining what "unreasonable" means, and there are tons and tons of SCOTUS cases that have dealt with that. The basics, though, nearly always involve a judge reviewing the evidence to determine if a crime is probable, and issuing a warrant in that case.

The fact that civil forfeiture is so contrary to all the other definitions of "reasonable" that courts have emphasized over the years should make it a clear violation of the Constitution.

[zmgsabst]

From the US constitution:

> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable … seizures, shall not be violated, … but upon probable cause, supported by Oath or affirmation, and particularly describing the … things to be seized.

From the article:

> In a response to an interrogatory filed in the Kozbials' subsequent lawsuit against Highland Park, a city police officer answered "none" when asked to identify any predicate felony offenses justifying the seizure.

What was the probable cause supported by oath or affirmation?

[tialaramex]

One test the law likes for reasonableness is to ask a jury.

We presume the jury are reasonable people (unfortunately the US also screws up how juries work) and so if they have a consensus that must be reasonable.

The UK uses "double reasonableness" in it's anti-tax avoidance law. It says the jury should ask themselves if any reasonable person might have done this anyway. If your jurors can't conceive of how even one other reasonable person could think what you did made sense, except that it reduced tax liability, then in fact it did not reduce liability, your avoidance scheme doesn't work.

[twh270]

There is no clear answer to the question of reasonableness/unreasonableness, but civil asset forfeiture as used today is *far* into unreasonable territory.

[UncleEntity]

> The fact that the constitution explicitly proscribes "unreasonable" seizures means it also allows "reasonable" seizures.

Yes, a reasonable seizure is either through eminent domain (with just compensation) or the result of a criminal proceeding as punishment.

Unreasonable would be seizures with no criminal proceedings or just compensation.

[avs733]

reasonable here could easily be aligned with, you know, having due process.

The constitution describes people's property and makes people subject to it. Suing a car or a pile of cash is farcical - because the constitution doesn't have authority over objects, it has authority over the people who own and possess the objects.

Its the same basic factual explanation as to the difference between two consenting adults and adults and children/animals that seems to befuddle those who don't like gay rights.