But I also think you have been misled by a quacky internet article that misstates what is really happening
\ First, here is the law for Penn civil FF for drugs. You will note that (1) a judicial proceeding before a judge absolutely is required and (2) the burden is on the state to show that the property seized was contraband.
(j) Owner's burden of proof. — At the time of the hearing, if the
Commonwealth produces evidence that the property in question was
unlawfully used, possessed or otherwise subject to forfeiture under
section 6801(a) or 6801.1(a), the burden shall be upon the claimant to
show: (1) That the claimant is the owner of the property or the holder of a
chattel mortgage or contract of conditional sale thereon. (2) That the claimant lawfully acquired the property. (3) That it was not unlawfully used or possessed by him. In the event
that it shall appear that the property was unlawfully used or possessed
by a person other than the claimant, then the claimant shall show that
the unlawful use or possession was without his knowledge or consent. Such
absence of knowledge or consent must be reasonable under the
circumstances presented.
So that is how the FF law works. No, the DA can’t do this on his own. Indeed, the class action filed against the City expressly alleges that the DA “sues the property in a civil action…” So the lawsuit acknowledges that a judicial proceeding is the start of the forfeiture process. Read paragraph 26 of the class action and you will see it mirrors what I have told you. The lawsuit further alleges that the DA “requires property owners to come to court to prove their innocence.” But that is a misstatement by the atty who drafted the pleading. The DA first has to present evidence that the property was used in crime. He can’t require the owner to prove innocence at this point. Only if he carries that burden does this happen. Now, as you say, the lawsuit does allege that the “court” is run by the prosecutors themselves, talks about ex parte seizures without compliance with the statute, and that sometimes there is no notice. But if this is not a real court with a Commonwealth judge, then the city is doing this illegally and the Plaintiffs will easily win here. It sounds to me that what may be happening is the DA is really conducting part of his investigation and settlement negotiations in that court room. The clueless property owner comes in and is persuaded to waive his rights without realizing this is not the judicial hearing guaranteed by the statute. So Jack your objection is not to the Penn statutory civil forfeiture procedure at all but –if we accept the truth of the pleading - to rogue DAs who are doing it illegally. No different than a cop who shoots a suspect with his hands up. A tragedy yes but nothing wrong with the law - the cop has violated the law
I posted on a few sites about Civil Forfeiture after watching a John Oliver show on HBO.
I was looking for what makes LE want to search a car and if they do - why???? Some stop people ask if the have cash and if they say yes the reason for the stop will only then be apparent.
Holly crap did this bring on the shit storm. My guess is that a lot of police that trolled the sites were offended.
In the end I had a darn good laugh at how heated and irritated people got over it.
What are your thoughts? Good, bad, just, unjust, they had it coming . . .
It is mind boggling to me that the government can confiscate your property with out convicting you, are even ACCUSING you of any crime. And who is the beneficiary of the governments heist? Charity? Nope. Right into their own pockets. They have an incentive to fk people over.
The reason this is even happening to the degree in which it is is because of money, pure and simple. If the govt, by law, were forced to give the proceeds to a charity, this would all stop tomorrow.
Also, the burden of proof is ass backwards here as it should be on the government fully and the "beyond a reasonable doubt" threshold should be applied NOT a preponderance of the evidence.
There are people that have lost their home because a child of theirs or ex-spouse sold drugs on the property while the person was away, at work etc. i.e. without their knowledge.
Then, if that isn't bad enough, in some jurisdictions, you don't even get to appear before a judge or jury for the appeal! That's right, the prosecutors office handles that! Gee, think there is a conflict of interest there?
Nah...
In his fervor on the War On Drugs and the aid of the "people's" usual gullibility he legalized strong arm thievery/grand theft by police and government. He did so promising that IT would "only be used on drug kingpins and cartels".
Homes, boats, businesses, lives have been craftily stolen by the police and local/Federal Government since the early 80's for as little evidence as a single joint.
"Promise" My ass!
and legalized forfeiture all by himself.
Unlike Obama, Reagan worked with Congress. The laws you reference in 1984 were passed overwhelmingly by both the House and Senate by about 80% margins, and the House was very much controlled by the Democrats. It also demonstrates how a President that is highly unpopular with the opposition party could still get things done.
Now as to the laws, regardless their positive effect on real crime, I believe they are unethical and unconstitutional. They rank right up there with the biggest recent mistake by the SCOTUS in its destructive 5th Amendment decision regarding Kelo v City of New London.
-- Modified on 10/15/2014 10:44:47 PM
He worked with Congress still, it is his job POTUS to understand the consequences.
Fucking trillion dollar colossal War on Drugs failure. Still pouring money into the toilet relentlessly base brain dead ideology.
Let us not even discuss other colossal gifts Saint Reagan gave to world and American to pay for rest of their lives.
Please read some sources other than Fox and Right Wing Garbage before going berser
I criticized ALL 3 institutions but as soon as you saw something that resembled someone defending Reagan (which of course it was not) . . . you went berserk.
GW Bush had similar Congressional support in his gutting of the Bill of Rights with passage of the "Patriot Act".
When tin-hat would-be dictators and the network media's 'hype machine' get into gear it's amazing what jingoistic, flag waving Americans can be conned into surrendering.
Barry's Obamacare was dead in the water until it was made a mandatory, individual "tax" overseen/adjudicated by the treasury department. I wonder what far seeing closet dictator came up with that "Direct Capitation" caveat?
Unlike Obama, Reagan worked with Congress. The laws you reference in 1984 were passed overwhelmingly by both the House and Senate by about 80% margins, and the House was very much controlled by the Democrats. It also demonstrates how a President that is highly unpopular with the opposition party could still get things done.
Now as to the laws, regardless their positive effect on real crime, I believe they are unethical and unconstitutional. They rank right up there with the biggest recent mistake by the SCOTUS in its destructive 5th Amendment decision regarding Kelo v City of New London.
-- Modified on 10/15/2014 10:44:47 PM
County Sheriff in the 00's.
Reagan and Congress intended the law to combat drug lord empires.
Maybe you blame Henry Ford for car crashes?
When tin-hat would-be dictators and the network media's 'hype machine' get into gear it's amazing what jingoistic, flag waving Americans can be conned into surrendering.
Barry's Obamacare was dead in the water until it was made a mandatory, individual "tax" overseen/adjudicated by the treasury department. I wonder what far seeing closet dictator came up with that "Direct Capitation" caveat?
Unlike Obama, Reagan worked with Congress. The laws you reference in 1984 were passed overwhelmingly by both the House and Senate by about 80% margins, and the House was very much controlled by the Democrats. It also demonstrates how a President that is highly unpopular with the opposition party could still get things done.
Now as to the laws, regardless their positive effect on real crime, I believe they are unethical and unconstitutional. They rank right up there with the biggest recent mistake by the SCOTUS in its destructive 5th Amendment decision regarding Kelo v City of New London.
-- Modified on 10/15/2014 10:44:47 PM
not for individual police abuses 30 years later.
Everyone knows if you hand a loaded gun to a small child only bad will come of it. I was only in my early-mid twenties and I KNEW Asset Forfeiture was a rape of the citizenry waiting to happen. And it didn't take long until "only being used against drug kingpins and cartels" would become some poor bastard with a roach in his car's ashtray.
In the late 1990's LA PD/Sheriff and other cities were using Asset Forfeiture to seize, make use of, or auction off automobiles confiscated because they were used by their owner to pick up a hooker. The same legal logic and machinations were used.
that the entire situation deserves to be blamed solely upon Reagan. As I pointed out, Reagan, the Congress and the SCOTUS are all at least equally culpable, as well as subsequent Presidents and Congresses. I criticized all 3 institutions and wholeheartedly agree these restrictions on the 5th Amendment need to be lifted or severely revised. The path to do that includes honesty in how we got here.
And who is to say it was Reagan's idea. Even if history has it recorded as so.
It was horrific legislation. It should be rescinded, and STRICT moratoriums set on most future legislation along with some retro-active thinning of the herd.
It wasn't just the righties leading the charge to do away with all of our civil rights. The libs were just as eager to sign away our rights, (and those of every subsequent generation I might add) to be assured that the government would fight the battle against such bogey men as drug dealers (who only exist because of our draconian drug laws protecting us poor, stupid people from ourselves) and terrorists who now can claim victory as we have become our own worst enemies in destroying our own way of life, not to mention our freedom.
anyway. The Comprehensive Drug Law passed during his term addressed primarily forfeiture to federal agencies – the states already had asset forfeiture laws in their codes – although it did advance the equitable sharing concept which has led to some abuse.
Nor is civil forfeiture unconstitutional. The Supreme Court has upheld the Michigan law against a due process attack, even though the law did not provide an innocent owner defense (as most state statutes now do) – talk about tough facts , wife lost her car to the government when husband was arrested having sex with a hooker in it. And last year the Court allowed a civil freeze of assets after a grand jury indictment which deprived a couple of funds to pay their attorney.
Finally, a civil FF does not violate the Takings Clause as one poster has suggested – that clause does not apply when the government takes your property under other statutory authority; hence, this is not an improper exercise of eminent domain
Do a google search for "Philadelphia CF." Look at the cases that end up at courtroom 478. (Per TER posting guidelines, I am not allowed to link to the articles but there in one by Forbes and one by CNN that are noteworthy.)
They don't get to see a judge. They see the DA. And in some cases they are forced to come back DOZENS of times before they can get justice.
Now how many people do you know have the time/money and ability to miss that much work?
CF, the way it is practiced there, will not meet constitutional muster. No way.
These fkers should be put in jail for abusing the system to this degree.
But I also think you have been misled by a quacky internet article that misstates what is really happening
\ First, here is the law for Penn civil FF for drugs. You will note that (1) a judicial proceeding before a judge absolutely is required and (2) the burden is on the state to show that the property seized was contraband.
If the state fails to carry this BOP, no FF and the property is returned to the owner. Only if the state provides evidence that the property was used in the commission of a crime, does the owner have any burden. Again, this is an affirmative defense where the owner shows his property was used in the crime without his knowledge:
(j) Owner's burden of proof. — At the time of the hearing, if the
Commonwealth produces evidence that the property in question was
unlawfully used, possessed or otherwise subject to forfeiture under
section 6801(a) or 6801.1(a), the burden shall be upon the claimant to
show:
(1) That the claimant is the owner of the property or the holder of a
chattel mortgage or contract of conditional sale thereon.
(2) That the claimant lawfully acquired the property.
(3) That it was not unlawfully used or possessed by him. In the event
that it shall appear that the property was unlawfully used or possessed
by a person other than the claimant, then the claimant shall show that
the unlawful use or possession was without his knowledge or consent. Such
absence of knowledge or consent must be reasonable under the
circumstances presented.
So that is how the FF law works. No, the DA can’t do this on his own. Indeed, the class action filed against the City expressly alleges that the DA “sues the property in a civil action…” So the lawsuit acknowledges that a judicial proceeding is the start of the forfeiture process. Read paragraph 26 of the class action and you will see it mirrors what I have told you.
The lawsuit further alleges that the DA “requires property owners to come to court to prove their innocence.” But that is a misstatement by the atty who drafted the pleading. The DA first has to present evidence that the property was used in crime. He can’t require the owner to prove innocence at this point. Only if he carries that burden does this happen.
Now, as you say, the lawsuit does allege that the “court” is run by the prosecutors themselves, talks about ex parte seizures without compliance with the statute, and that sometimes there is no notice. But if this is not a real court with a Commonwealth judge, then the city is doing this illegally and the Plaintiffs will easily win here.
It sounds to me that what may be happening is the DA is really conducting part of his investigation and settlement negotiations in that court room. The clueless property owner comes in and is persuaded to waive his rights without realizing this is not the judicial hearing guaranteed by the statute.
So Jack your objection is not to the Penn statutory civil forfeiture procedure at all but –if we accept the truth of the pleading - to rogue DAs who are doing it illegally. No different than a cop who shoots a suspect with his hands up. A tragedy yes but nothing wrong with the law - the cop has violated the law
To make people come back dozens of times is a defacto loss of due process. This is all very troubling in a democracy.
It is my contention that CF should ONLY be used on CONVICTED felons and felons so heinous that they are a major threat to their community.
For example, an ISIS or Al Qaida home used for recruitment in the U.S., a planned murder/rape, a building used for human trafficking purposes, etc etc etc but NOT for smaller quantities of drugs and certainly not if the owner is unaware of the crime being perpetrated.
And the idea of someone losing their home when not convicted or even accused of a crime is fkin revolting.
Thanks for the lengthy reply. Always informative
This shit is real. Close to a billion have been seized from innocent citizens including a house in Sanediego. Read the article, it is good expose on our law makers, law enforcement and the justice system in our country.
You thought you were living in a country that is free. You are only free as long us they don’t get you.
I was not able to pull up the the STOP and SIEZE link. Clink on the link.
Pay higher taxes... or risk having your property seized by the authorities.
Overall, this sounds like a liberal issue being pressed before a midterm election.
I was looking for what makes LE want to search a car and if they do - why???? Some stop people ask if the have cash and if they say yes the reason for the stop will only then be apparent.
Holly crap did this bring on the shit storm. My guess is that a lot of police that trolled the sites were offended.
In the end I had a darn good laugh at how heated and irritated people got over it.
What are your thoughts? Good, bad, just, unjust, they had it coming . . .
to make sure you are not hiding assets, greedy fuckers. I am sure that is the real reason for the spying. Surely the American public aren't buying in to "we are keeping you safe, please let us in your bedroom, bank accounts, emails, phone calls.
In the early to mid 1900's there were $500 and even $1000 bills(silver certificates) and an 'average' home cost less than $10,000 all the way to the late 1950s.
Now the $100 bill is our largest denomination and an average home costs over $150,000. The Treasury Dept has made it absolutely impractical to keep any quantifiable amount of money in your immediate control. And by these recent accounts if you dare travel with over a thousand dollars on your person you're held under suspicion of illegal activity/intent, your money is seized, and you must finance a prosecution to get it back.
They're doing a good job at forcing us into being a cashless society. When they do we WILL all essentially be slaves.
This obscene behavior by our government. First thing that needs to happen is the elimination of the Equitable Sharing Program. This is a partnership between federal and local law enforcement agencies. It actually encourages local agencies to pursue civil forfeitures. In many cases, local agencies get to keep up to 80% of the proceeds from this action. Rand Paul's has introduced the FAIR that would severely restrict this program. Secondly, states need to change the way civil forfeiture is conducted within their states. Georgia and Texas have some of the most liberal laws when it comes to civil forfeiture. The standard in which property is seized needs to be increased. Currently, all that is needed is an officer's suspicion that the property, mostly cash, is going to be used in connection of a crime. This bar is entirely too low and in practice, criminalizes the possession of cash. According to the WAPO article the average seized amount was less than a couple thousand of dollars. Really? This amount of cash indicates that a drug deal is happening? That money is being laundered? It's a clear indication that local law enforcement is using a tool intended for major drug traffickers against the public at large to fund their departments. It's so common that the Candian government warns its citizens not to carry large amounts of cash when traveling in is country. It's obscene and unfortunately, we have a Supreme Court that loves to coddle law enforcement, otherwise this tool wouldn't exist.