Politics and Religion

Profoundly different. We are stuck with the Second Amendment even
marikod 1 Reviews 335 reads
posted

though it is terrible policy.  I wish we could apply a balancing test on that one but we can’t- all gun control laws burdening guns in the home -no matter how wise - fall bc they contravene the Second Amendment. No matter how many child shootings and how few successful home defenses, the law is void. I don’t think even my favorite smart gun law would survive for guns kept in the home.

       When we move to specific state regulation of guns OUTSIDE the home, however, we do apply a balancing test as part of determining whether the law is “substantially related to the achievement of an important government interest.”  So in upholding the NY Safe Act, the judge did balance the need for a citizen on the street to carry  an assault weapon/large mag for self defense (that one barely moved the scales LOL) with the state’s need to reduce the lethality of mass shooters.  Easy victory for the sane here.

         By contrast, there is no constitutional provision that protects you from civil forfeiture. So we analyze these laws under the rational basis test, unless we find the cops are secretly applying them only to blacks, Hispanics etc. And a comparison of harm balancing analysis is part of this test.
 
Posted By: ed2000
Posted By: marikod
So we balance this against the occasional hard luck to an innocent property owner.
   
 The Second Amendment serves a useful purpose in allowing lawful gun owners the ability to defend themselves.  
   
 **So we balance this against the occasional hard luck to an innocent person.**  
   
  Yes, there is the occasional finality involved when a gunshot occurs but that's just part of the factual nature of the circumstance.  Do abuses occur? Of course.  
   
 **But all 50 states have laws** designed to punish the abusers and to act a a deterrent to potential abusers.  
 

-- Modified on 9/27/2014 1:35:36 PM

DA_Flex2559 reads

I call civil forfeiture theft.  Several news organizations, including an excellent series by the Washington Post, highlight the several abuses by law enforcement.  This study highlights why this happens from a human perspective.  We need to re-write these laws so that the abuse can end.  The best quote was the following "When you give [police] the power of civil asset forfeiture, they've got to choose between themselves or the public," says experimental economist Bart Wilson. "Why do we want to put them in that position?

GaGambler327 reads

but it is mildly amusing to watch him twist himself into a pretzel trying to defend virtually all police actions.

I suppose that since he is so against the rights of citizens to protect themselves, by necessity he must put blind and total faith in LE to "protect him" even though this article plainly shows that the interests of LE themselves and those of the citizens who pay them for protection are sometimes most definitely not aligned with each other.

I honestly can't think of anyone other than Mari who would try to defend this LE practice, not even the "law and order righties" on the board, but I've been surprised before. So, who does support this practice, and why?

JackDunphy386 reads

Shouldn't the government have the burden of proof?  

And where is the legislature and the courts on this? Arent they complicit in all this?

GaGambler384 reads

I can't think of a better example of denying "due process" to a person not even charged with a crime.

and as I said in my earlier post, the only person I can imagine trying to defend this practice is Mari, as he tries his level best to come down on the wrong side of every issue. lol

JackDunphy317 reads

I think Mari is very fair to cops who get unfairly accused of unjustifiable shootings by the Left with little or no facts. He has also changed his opinion too as the facts change.

Case in point: Ferguson. At one time, he thought it looked like an unwarranted shooting but I believe he has since changed his mind as more facts came to light.  

But I am sure he is, like I am and as you are, open to the facts in the future that are unknown in that case before ultimately making up our minds.

Oh sure, I'll rip him when I think he is wrong about something, but I don't think he is blatantly, knee jerk left like many of our liberal friends here so he gets more respect from me in general.

GaGambler337 reads

As I just predicted Mari is the only one who has come out and defended this travesty of justice. Mari makes a career out of defending the indefensible

I eagerly await your response to his post.

Damn, I should have made a bet with you in re to Mari's opinion on the subject.

The police departments that practice this policy are actually encouraging the citizen to participate in "due process"

Yes, the burden of proof is on the citizen. Which shouldn't hard for the citizen to do when there property is obtained legally.

 
That's not to say I support such laws, only that laws like these are going to be hard to argue against.

DA_Flex279 reads

Of course they are complicit....no politician wants to look soft on crime or terrorism.  These laws were initially written to target the drug kingpins, terrorists and money launderers.  In practice, it's a way for police to target those that are  
, again, least likely to fight the seizure.  If you read the Post series and if I recall correctly, most seizures are less than 4K.  Who really spends thousands to get back that amount....if they even get it back.  Police have a tool and they use it to their advantage.

 

Posted By: JackDunphy
Shouldn't the government have the burden of proof?  
   
 And where is the legislature and the courts on this? Arent they complicit in all this?

be given only minimal powers. Crime should be proven in a court of law. Police has become overly aggressive with added powers given to them under the patriot act, warrantless searches, warrantless seizure and what not.  

Besides, most cops on the street are not the brightest light bulb in the basket to begin with.

DA Flex means well but he is utterly confused about civil forfeiture (as he is about excessive force) due in large part to relying on articles that describe the civil forfeiture process inaccurately; I’ve tried to explain to him how it really works but he is not interested in learning.

        But, when the state seizes property and seeks to obtain a forfeiture order, the burden of proof is always on the state to prove by a preponderance of the evidence that the property was “contraband” as defined under the applicable state or federal forfeiture statute. The state has to go to court and prove that the property was used in the commission or attempted commission of a select group of crimes. If the state fails to carry this burden, forfeiture is denied and the property is returned to the lawful owner without that owner spending a dime.

       If, however, the state does prove the property is contraband, an innocent owner can still prevail if he proves that the property was used in the crime without his knowledge or permission.  Now the BOP is indeed on the owner at this procedural stage but that is common in civil and criminal actions. This is what we call an “affirmative defense” where the defense has the burden. Think of self -defense or insanity in a criminal trial. In most states, the defendant always has the burden to prove this.

        So to equate civil forfeiture with “theft”, as does DA Flex, is downright silly. His articles always obscure or leave out the first step in the process. If bad guys use your car for the getaway vehicle, the police can have your car forfeited in a judicial process by simply proving it was used in the robbery. But if your car was stolen, you can avoid forfeiture by proving that.  As always due process protects you from the seizure of  your property by the state.  

       Yes the police are permitted to keep the property for the department, although never for an individual. This does create an incentive for the police to aggressively purse forfeiture proceedings but if you truly understood the shoe string budgets that most of these police departments operate under, you would have no problem with this.

      Keep your property from being used by bad guys and you will never have a problem Jack

JackDunphy362 reads

And what if the "bad guy" is your child? Or ex? People have lost their homes because their kid/SO sold drugs on the property w/o their knowledge. Are you saying the govt doesn't have the burden to prove the parents/spouse did know?  

With a house on the line and homelessness the potential downside, I am far more concerned than you about the govt stepping in and taking that property and the burden should be massively high before that happens. Imo opinion, that should not occur before the defendant has had a chance to appeal. What's the rush?

The fact that you are admitting the police have an incentive to do this is equally troubling. The only incentive LE should ever have is justice. If they can't get enough funding then raise taxes, cut costs or have a fkin bake sale.

And please define "due process" for me. If someone has their property taken, in some jurisdictions the peeps don't go in front of a judge or jury but in front of the DA only for their appeal. How is that justice and due process?  

Finally, the BOP should NOT be preponderance of the evidence but beyond a reasonable doubt. Again, if we were talking about a fine, I would be ok with POTE threshold but since we are talking about taking someone's residence off them, and possibly making an innocent family with children homeless, than the burden needs to be higher. Much higher, especially in light of the fact we are only talking about minimal amount of drugs in some cases.

IDK Mari, you are going to have to convince me the penalty fits the crime here. Seems like we are killing a gnat with a hellfire missile.



-- Modified on 9/27/2014 12:32:34 AM

You would have to research the specific jurisdiction to get definitive answers. Based on my very general knowledge of these laws, however, I would say:

         1. Yes, as far as I know, if a kid took the parents’ car to transport drugs, the police filed a judicial proceeding to forfeiture the car, and the police proved the car was used in a drug crime covered by the statute, the parents would have to prove they did not know of the crimes to avoid forfeiture.  Some states require the government to prove the parent’s lack of knowledge where real estate is involved, so a higher standard there.  

       But remember the police and the DA always have discretion not to seek forfeiture. So I would expect them to exercise that discretion where the facts painted a first time offense by the kid. Plus some states have an “interests of justice” exception – the judge can deny forfeiture to protect an innocent owner regardless of what he proves.

      2. No problem there. If you lose in the trial court, you can appeal and usually prevent execution until the appeal is decided.

        3. Laws and sausages and law enforcement Jack – sorry but LE is a business and yes traffic cops are given speeding quotas to raise revenue- they can’t sit in the donut shop all day. The Fed Asset fund is over a billion. Would you rather we raise your taxes to replace these funds?

       4.That would be news to me. In what state does the DA decide?  Can’t see how that would be lawful.

       5. This is CIVIL forfeiture Jack. There is criminal forfeiture where the reasonable doubt standard is applied. But there is a bill in Congress to require a “clear and convincing evidence standard” for civil FF, and to shift the innocent owner burden to the state, so you are on solid ground with this one. “Minimal amounts of drugs causing homelessness”? Not really- remember it all starts with the statute listing crimes that are subject to civil forfeiture:

“(iv) The unlawful sale of marijuana or a legend drug shall not result in the forfeiture of real property unless the sale was forty grams or more in the case of marijuana or one hundred dollars or more in the case of a legend drug, and a substantial nexus exists between the unlawful sale and the real property;”

 
       Do abuses occur? Of course. But all 50 states and the fed agree that civil ff is a critical tool for LE. Wish we had that kind of agreement on gun control and health care. So we balance this against the occasional hard luck to an innocent property owner. Remember also that the innocent owner can recover attorney fees if he wins in most if not all states, so in theory he comes out even

GaGambler396 reads

BTW Mari, I am still willing to make that bet that you've been ducking me on for weeks. It doesn't sound like you have much courage of your convictions where it comes to Rick Perry and the law.

If you are scared, there's no shame in admitting it. lmao

Posted By: marikod
So we balance this against the occasional hard luck to an innocent property owner.
The Second Amendment serves a useful purpose in allowing lawful gun owners the ability to defend themselves.  

**So we balance this against the occasional hard luck to an innocent person.**

 Yes, there is the occasional finality involved when a gunshot occurs but that's just part of the factual nature of the circumstance.  Do abuses occur? Of course.  

**But all 50 states have laws** designed to punish the abusers and to act a a deterrent to potential abusers.


-- Modified on 9/27/2014 1:35:36 PM

though it is terrible policy.  I wish we could apply a balancing test on that one but we can’t- all gun control laws burdening guns in the home -no matter how wise - fall bc they contravene the Second Amendment. No matter how many child shootings and how few successful home defenses, the law is void. I don’t think even my favorite smart gun law would survive for guns kept in the home.

       When we move to specific state regulation of guns OUTSIDE the home, however, we do apply a balancing test as part of determining whether the law is “substantially related to the achievement of an important government interest.”  So in upholding the NY Safe Act, the judge did balance the need for a citizen on the street to carry  an assault weapon/large mag for self defense (that one barely moved the scales LOL) with the state’s need to reduce the lethality of mass shooters.  Easy victory for the sane here.

         By contrast, there is no constitutional provision that protects you from civil forfeiture. So we analyze these laws under the rational basis test, unless we find the cops are secretly applying them only to blacks, Hispanics etc. And a comparison of harm balancing analysis is part of this test.
 

Posted By: ed2000
Posted By: marikod
So we balance this against the occasional hard luck to an innocent property owner.
   
 The Second Amendment serves a useful purpose in allowing lawful gun owners the ability to defend themselves.  
   
 **So we balance this against the occasional hard luck to an innocent person.**  
   
  Yes, there is the occasional finality involved when a gunshot occurs but that's just part of the factual nature of the circumstance.  Do abuses occur? Of course.  
   
 **But all 50 states have laws** designed to punish the abusers and to act a a deterrent to potential abusers.  
 

-- Modified on 9/27/2014 1:35:36 PM

It can often "BANKRUPT" an innocent in proving his as well as their 'properties' innocence. Nefarious and greedy police departments / municipalities count on this.  
It's the same MO used by the IRS. IE: The IRS seizes your property and bank accounts, then expects you to wage a legal defense with NO resources.  

  "Asset forfeiture" was a blasphemy when Reagan instituted it on "The War On Drugs", and it has been miss-used victimizing US citizens just as our founding forefathers knew it would.  

Posted By: marikod
     DA Flex means well but he is utterly confused about civil forfeiture (as he is about excessive force) due in large part to relying on articles that describe the civil forfeiture process inaccurately; I’ve tried to explain to him how it really works but he is not interested in learning.  
   
         But, when the state seizes property and seeks to obtain a forfeiture order, the burden of proof is always on the state to prove by a preponderance of the evidence that the property was “contraband” as defined under the applicable state or federal forfeiture statute. The state has to go to court and prove that the property was used in the commission or attempted commission of a select group of crimes. If the state fails to carry this burden, forfeiture is denied and the property is returned to the lawful owner without that owner spending a dime.  
   
        If, however, the state does prove the property is contraband, an innocent owner can still prevail if he proves that the property was used in the crime without his knowledge or permission.  Now the BOP is indeed on the owner at this procedural stage but that is common in civil and criminal actions. This is what we call an “affirmative defense” where the defense has the burden. Think of self -defense or insanity in a criminal trial. In most states, the defendant always has the burden to prove this.  
   
         So to equate civil forfeiture with “theft”, as does DA Flex, is downright silly. His articles always obscure or leave out the first step in the process. If bad guys use your car for the getaway vehicle, the police can have your car forfeited in a judicial process by simply proving it was used in the robbery. But if your car was stolen, you can avoid forfeiture by proving that.  As always due process protects you from the seizure of  your property by the state.  
   
        Yes the police are permitted to keep the property for the department, although never for an individual. This does create an incentive for the police to aggressively purse forfeiture proceedings but if you truly understood the shoe string budgets that most of these police departments operate under, you would have no problem with this.  
   
       Keep your property from being used by bad guys and you will never have a problem Jack.  
   
 

Having said that... I do not believe civil forfeiture is good for the public.  

I do find the comparison of "policing for profit" with "civil asset forfeiture" rather faulty. Given the fact all policing is for profit.

There needs to be a better argument if you want "law abiding citizens" to support laws which they do not feel victimized by.

Posted By: DA_Flex
I call civil forfeiture theft.  Several news organizations, including an excellent series by the Washington Post, highlight the several abuses by law enforcement.  This study highlights why this happens from a human perspective.  We need to re-write these laws so that the abuse can end.  The best quote was the following "When you give [police] the power of civil asset forfeiture, they've got to choose between themselves or the public," says experimental economist Bart Wilson. "Why do we want to put them in that position?"  
   
 

DA_Flex309 reads

The problem is the following...people don't give a shit about something until it happens to them.  It always happens to the other guys.  It's the same attitude when people say they have nothing to hide and think its perfectly acceptable to have the government snoop into their lives. Police abuse, physical or otherwise, is abuse and all that stands between you getting beat down or your property being taken away is the attitude of the officer or the District attorney.

Posted By: JohnyComeAlready
Having said that... I do not believe civil forfeiture is good for the public.  
   
 I do find the comparison of "policing for profit" with "civil asset forfeiture" rather faulty. Given the fact all policing is for profit.  
   
 There needs to be a better argument if you want "law abiding citizens" to support laws which they do not feel victimized by.  
   
Posted By: DA_Flex
I call civil forfeiture theft.  Several news organizations, including an excellent series by the Washington Post, highlight the several abuses by law enforcement.  This study highlights why this happens from a human perspective.  We need to re-write these laws so that the abuse can end.  The best quote was the following "When you give [police] the power of civil asset forfeiture, they've got to choose between themselves or the public," says experimental economist Bart Wilson. "Why do we want to put them in that position?"  
     
 

That's what I am asking. I don't think public opinion will do much for the argument.

Register Now!