Minnesota gets Civil Forfeiture right

[TimothyC]

Op/Ed 5/07/2014 @ 4:54PM 5,573 views
Minnesota Now Requires A Criminal Conviction Before People Can Lose Their Property To Forfeiture

In a big win for property rights and due process, Minnesota Gov. Mark Dayton signed a bill yesterday to curb an abusive—and little known—police practice called civil forfeiture. Unlike criminal forfeiture, under civil forfeiture someone does not have to be convicted of a crime, or even charged with one, to permanently lose his or her cash, car or home.

The newly signed legislation, SF 874, corrects that injustice. Now the government can only take property if it obtains a criminal conviction or its equivalent, like if a property owner pleads guilty to a crime or becomes an informant. The bill also shifts the burden of proof onto the government, where it rightfully belongs. Previously, if owners wanted to get their property back, they had to prove their property was not the instrument or proceeds of the charged drug crime. In other words, owners had to prove a negative in civil court. Being acquitted of the drug charge in criminal court did not matter to the forfeiture case in civil court.

As Lee McGrath, the executive director of IJ’s Minnesota chapter, put it, “No one acquitted in criminal court should lose his property in civil court. This change makes Minnesota’s law consistent with the great American presumption that a person and his property are innocent until proven guilty.”

The bill faced stiff opposition from law enforcement and a bottleneck in the legislature. In March, the Star Tribune called it an “outrage” that lawmakers were “dragging their feet on one of the big, common-sense changes” to the state’s forfeiture laws. Ultimately, SF 874 found wide, bipartisan support, passing the state senate 55 to 5 and the state house unanimously. The reforms will go into effect starting August 1, 2014.

They couldn’t come at a better time. It can be very costly to hire an attorney for civil forfeiture cases, so many owners do not. That undermines their chances of retaining or regaining their property. In addition, litigation can actually cost more than what the property itself is actually worth. The average value of forfeited property was around $1,250. Barely four percent of all property forfeited between 2003 and 2010 was valued at more than $5,000. Police have even forfeited a nylon bag worth a mere 22 cents. It’s not too surprising then that more than 95 percent of those charged with a drug crime in Minnesota do not file a civil forfeiture case.

Not only was there an appalling lack of due process for civil forfeiture proceedings, law enforcement can keep up to 90 percent of the proceeds from forfeited property. That clearly creates a perverse incentive to police for profit. A report by the Institute for Justice, “A Stacked Deck: How Minnesota’s Civil Forfeiture Laws Put Citizens’ Property at Risk,” found that forfeiture revenue grew by 75 percent from 2003 to 2010, earning police almost $30 million. In 2012 alone, there were 6,851 property seizures worth a collective $6.7 million, according to the state auditor’s office. This growth occurred despite the fact that the crime rate was actually dropping in the Land of 10,000 Lakes.

The combination of scant legal safeguards for owners and a profit incentive for cops can engender abuses of power. Officers for Minnesota’s Metro Gang Strike Force seized cars, cash, a flat-screen TV and jewelry from people never even charged with a crime. After horrifying reports of police misconduct, the force was dissolved in 2009. A settlement awarded 96 victims $840,000 and returned some of their property. The outrage spurred lawmakers to pass a law requiring forfeiture reporting. The resulting data was later used by IJ in its “Stacked Deck” report. In turn, that research helped catalyze the passage of SF 874.

Before SF 874, only some crimes, like prostitution and drunk driving, required a conviction before the government could forfeit property. Other crimes, like those involving controlled substances, did not. In Minnesota, drug-related forfeitures made up almost half of all forfeitures in 2012. SF 874 now mandates drug charges to have a criminal conviction before property can be forfeited.

Civil forfeiture extends well beyond drug dealers. Wielding bogus links to drug crimes, the federal government has threatened civil forfeiture against innocent property owners. Russ Caswell nearly lost his Massachusetts motel, which the Caswell family had owned since 1955, because the government argued it was “facilitating” drug crimes. As he noted in an op-ed for The Washington Times, “Over a 14-year period, I rented out rooms to almost 200,000 guests. The government only offered as evidence 15 drug arrests. Not 15,000 or 1,500 — just 15. A local paper found big-box stores down the road had more drug activity than my motel.”

In a similar vein, Tony Jalali almost lost his property over $37 worth of marijuana. He did not buy or sell the plant; he was only renting space to a medical marijuana dispensary, which is legal under California law. Neither Caswell nor Jalali were charged with any crime whatsoever. Thanks to the Institute for Justice, both men kept their properties.

To ensure forfeiture reform would prevail in Minnesota, IJ worked with a diverse group of allies, including the ACLU, the Minnesota Criminal Defense Lawyers Association and the Second Chance Coalition. Yet reform should not be limited to Minnesota. Many states are in dire need of similar reform. According to another report by the Institute for Justice, “Policing for Profit,” only three states earned a grade of B or higher for their forfeiture laws. Other states should follow Minnesota’s lead and protect property rights and restore due process.

Commentary in thread title.

[Mr Bean]

This has been an ongoing issue along the border with Mexico with people carrying large amounts of cash (IE more than 300$) getting it seized by local shierffs under civil forfieture no charges ever filed and them counting on the fact they are out of state to get away with it.


Combine that with the 90% keep rate and hello obvious opportunity for legal banditry. Toss in the addled wrinkle if you talk back they will seize you car in addition to your money because hey I smelled pot which means everything you have on you can be taken thanks to existing drug laws.

[Thanas]

Wow, those laws make no sense. I'd always assumed that in a civilized country the cops actually need a reason to take your stuff.

Legal banditry.

[Borgholio]

I'd always assumed that in a civilized country the cops actually need a reason to take your stuff.

Some would argue that the US isn't really a civilized country...

[Block]

I'd always assumed that in a civilized country the cops actually need a reason to take your stuff.

Some would argue that the US isn't really a civilized country...

They'd be wrong.

[Simon_Jester]

US law is stupid on this specific issue; I wish I understood the origins of it. It predates the war on drugs.

[Block]

US law is stupid on this specific issue; I wish I understood the origins of it. It predates the war on drugs.

It was used in the British Empire and during early US history to go after smugglers. Often it couldn't be proven because everyone would keep their mouths shut, so they'd just seize the goods as recompense for unpaid import and export taxes.

[The Kernel]

Now hang on for a second, I'm not necessarily arguing in favor of civil forfeiture by the government but lets at least try and understand what the intent of all this is.

The concept of "civil forfeiture" in this context just means that the US Government can bring a civil lawsuit against an individual or corporation just as any individual or corporation can bring a lawsuit in civil court against one another. The government has many reasons that they do this that are NOT related to criminal activity (and I don't think anyone wants to revoke that right) so clearly saying that the government must take all of its cases from civil court to criminal court is silly.

The problem here is that the government might decide to use law enforcement to take possession of suspected criminal proceeds with the adjudication of that dispute being in civil court. That's not a problem on its face, the problem is that the government is seizing the suspected proceeds first and then giving the property owner a remedy that involves a civil trial. Given the costs associated with doing this that clearly isn't a great solution as it lacks any true checks-and-balances but its really just a reflection of the separation between civil and criminal proceedings.

However, I also understand the government's argument here. They don't want to simply leave the suspect proceeds of a crime in the hands of the criminal while they adjudicate this (especially for organized crime) as it can simply be depleted to defend against the civil action in most cases. It seems like the logical thing to do here is to establish a means where the government can seize assets without adjudication if they have cause (much like how the police in many states can make an arrest without establishing cause ahead of time) but that a civil court judge must rule on the reasonable nature of the cause for the seizure within a few days (much like a criminal court has a probable cause hearing before a trial) before the assets can be frozen until the civil suit is settled. Furthermore civil assets that are seized should be frozen until the outcome of the civil trial (this may already be standard practice I don't know).

That makes a lot more sense then taking the broad step of getting rid of the concept of civil forfeiture altogether. If someone wants to make an argument that civil court is the wrong place for this then they can go ahead but that's a stupid argument that flies in the face of centuries of practice.

[The Kernel]

Wow, those laws make no sense. I'd always assumed that in a civilized country the cops actually need a reason to take your stuff.

Legal banditry.

Actually this is just a reflection of the way civil proceedings work. Think about it: what if your bank decided to simply keep all your money and tell you to fuck off if you don't like it? It's the same thing right? Your only action would be to bring a civil lawsuit against them.

[Thanas]

However, a bank with which I freely entered business dealings with is quite different than the Government, which has a host of powers to bring against me which no bank has.

[TheFeniX]

However, I also understand the government's argument here. They don't want to simply leave the suspect proceeds of a crime in the hands of the criminal while they adjudicate this (especially for organized crime) as it can simply be depleted to defend against the civil action in most cases.

The problem is the thousands (if not hundreds of thousands) of cases where property is seized and no charges, neither civil nor criminal, being filed. You then have to sue the government to get your property back. If they weren't abusing the shit out of the law, there wouldn't even be a need to force the onus (rightfully) back onto them.

It seems like the logical thing to do here is to establish a means where the government can seize assets without adjudication if they have cause (much like how the police in many states can make an arrest without establishing cause ahead of time) but that a civil court judge must rule on the reasonable nature of the cause for the seizure within a few days (much like a criminal court has a probable cause hearing before a trial) before the assets can be frozen until the civil suit is settled. Furthermore civil assets that are seized should be frozen until the outcome of the civil trial (this may already be standard practice I don't know).

I live in Texas, where even a joint of pot is a class B misdemeanor and can lead to forfeiture. Who is exactly defining "reasonable" when $5 (or whatever a joint costs) can have the cops take literally everything half-way "involved" in a crime?

Further, seizing assets so that a person cannot adequately defend themselves legally is a pretty shitty solution. Until Public Defenders are as numerous and as well funded as prosecutors, it isn't a viable solution. You're also fighting bias in that if you can't afford bail (or even a bail bond), showing up to court in a jump-suit is a one-way ticket to the guilty box.

Will this lead to situations where criminals use their ill-gotten funds to defend themselves? Yea, probably. Shit sucks. No one said it was a perfect solution.

That makes a lot more sense then taking the broad step of getting rid of the concept of civil forfeiture altogether. If someone wants to make an argument that civil court is the wrong place for this then they can go ahead but that's a stupid argument that flies in the face of centuries of practice.

I don't think anyone here thinks getting rid of civil foriture is a good idea. But the government needs to actually prove guilt (like they would have to normally) rather than stealing people's shit and saying "fuck you, spend 10 times the amount we stole suing us if you want it back."

Personally, because I'm getting more and more vindictive as I get older, any cases where forfeiture was found to be illegal should have damages paid by the thieves themselves, rather than passed back onto the taxpayer. If it puts them out on the street, tough shit.

[The Kernel]

However, a bank with which I freely entered business dealings with is quite different than the Government, which has a host of powers to bring against me which no bank has.

This is a civil proceeding remember? The government has no special powers there (well they have virtually unlimited funds to litigate but so does Chase Manhattan). The only reason this is a problem is that the government has the ability to take away your goods via simply grabbing them and my solution cleanly deals with that loophole.

[The Kernel]

The problem is the thousands (if not hundreds of thousands) of cases where property is seized and no charges, neither civil nor criminal, being filed. You then have to sue the government to get your property back. If they weren't abusing the shit out of the law, there wouldn't even be a need to force the onus (rightfully) back onto them.

I'm well aware of that, which is why if you give civil courts the ability to establish the equivalent of a probable cause for the seizure in the first place you deal with that problem. That's why probably cause standards exists for criminal proceedings--to prevent the police from using the power of arrest when they don't have evidence.

I live in Texas, where even a joint of pot is a class B misdemeanor and can lead to forfeiture. Who is exactly defining "reasonable" when $5 (or whatever a joint costs) can have the cops take literally everything half-way "involved" in a crime?

You are forgetting that I specifically stated that the civil court should make the determination NOT a criminal court. Civil courts are designed around proportional response and they don't give a shit about justice as that is not their job.

Further, seizing assets so that a person cannot adequately defend themselves legally is a pretty shitty solution. Until Public Defenders are as numerous and as well funded as prosecutors, it isn't a viable solution. You're also fighting bias in that if you can't afford bail (or even a bail bond), showing up to court in a jump-suit is a one-way ticket to the guilty box.

Will this lead to situations where criminals use their ill-gotten funds to defend themselves? Yea, probably. Shit sucks. No one said it was a perfect solution.

I'm not saying what I am proposing is perfect but its better and more realistic than passing laws against civil forfeiture.

I don't think anyone here thinks getting rid of civil foriture is a good idea. But the government needs to actually prove guilt (like they would have to normally) rather than stealing people's shit and saying "fuck you, spend 10 times the amount we stole suing us if you want it back."

Yes but not to the same standard as a criminal proceeding which is the basis for civil court in the first place. Remember the standard of evidence in civil court is based around "preponderance of evidence" not "beyond a reasonable doubt". That's exactly the standard you want for these cases.

[Thanas]

However, a bank with which I freely entered business dealings with is quite different than the Government, which has a host of powers to bring against me which no bank has.

This is a civil proceeding remember? The government has no special powers there (well they have virtually unlimited funds to litigate but so does Chase Manhattan). The only reason this is a problem is that the government has the ability to take away your goods via simply grabbing them and my solution cleanly deals with that loophole.

Yes but your solution is not the law and what I am talking about is the law as it is on the books right now.

[Terralthra]

Now hang on for a second, I'm not necessarily arguing in favor of civil forfeiture by the government but lets at least try and understand what the intent of all this is.

The concept of "civil forfeiture" in this context just means that the US Government can bring a civil lawsuit against an individual or corporation just as any individual or corporation can bring a lawsuit in civil court against one another. The government has many reasons that they do this that are NOT related to criminal activity (and I don't think anyone wants to revoke that right) so clearly saying that the government must take all of its cases from civil court to criminal court is silly.

This is incorrect. Civil forfeiture in many states means that police may confiscate the "means to a crime" without any conviction, judicial review, or in many cases even without charges. Once it has been confiscated, the person from whom it was confiscated must initiate (and win) a civil case to regain their own property, as a third-party claimant. See here for some more information.

In the first case mentioned above, a man was pulled over for "improper lane change", whereupon the police officer found out he had a prior conviction for marijuana possession, had a narcotics dog smell the car, where it indicated positive on narcotics. Probable cause attained. The officer in question siezed $17k in cash as being "probably" the profits from a drug sale. Search of the car revealed zero narcotics, and the man and his passenger were released, without charge...and without the $17k in cash. In order to get his money back, the man must sue the government as a third-party in the civil case "Municipality v. $17,500," and win. Oh, and by the way, he doesn't get to cross-examine anyone, and must prove that he didn't commit any crime.

[The Kernel]

Yes but your solution is not the law and what I am talking about is the law as it is on the books right now.

Sure but my point is that the only reason there is a problem here at all is because the government can use the advantage of their position to seize your property and then they have defacto possession until the civil matter is adjudicated. That's not any different from a corporation using their advantage to do the same.

Corporations do stuff like this a lot and there isn't much that can be done to stop them. The reasons that these strategies exist are not because the laws themselves are stupid but because civil court functions on entirely different rules to criminal court and if you don't have unlimited legal funds you are inherently at a disadvantage against the government, corporations or rich people.

[The Kernel]

This is incorrect. Civil forfeiture in many states means that police may confiscate the "means to a crime" without any conviction, judicial review, or in many cases even without charges. Once it has been confiscated, the person from whom it was confiscated must initiate (and win) a civil case to regain their own property, as a third-party claimant. See here for some more information.

It's the same thing as what I am saying. There's no criminal law against your bank taking all your money and claiming that they think you owe it to them so they are going to keep it so all of a sudden you are in the exact same position.

Did you ever wonder why people say "possession is 9/10ths of the law"?

In the first case mentioned above, a man was pulled over for "improper lane change", whereupon the police officer found out he had a prior conviction for marijuana possession, had a narcotics dog smell the car, where it indicated positive on narcotics. Probable cause attained. The officer in question siezed $17k in cash as being "probably" the profits from a drug sale. Search of the car revealed zero narcotics, and the man and his passenger were released, without charge...and without the $17k in cash. In order to get his money back, the man must sue the government as a third-party in the civil case "Municipality v. $17,500," and win. Oh, and by the way, he doesn't get to cross-examine anyone, and must prove that he didn't commit any crime.

He doesn't need to prove he didn't commit a crime, he needs to present preponderance of evidence that he the money wasn't the proceeds of a crime.

[Thanas]

It's the same thing as what I am saying. There's no criminal law against your bank taking all your money and claiming that they think you owe it to them so they are going to keep it so all of a sudden you are in the exact same position.

Of course there is. If they know they have no legal claim then that is at the very least embezzlement.

[Block]

Well, there's laws against the a representative of the Government taking it if they know they have no legal reason as well, it's just poorly enforced, pretty much like a bank.

[The Kernel]

It's the same thing as what I am saying. There's no criminal law against your bank taking all your money and claiming that they think you owe it to them so they are going to keep it so all of a sudden you are in the exact same position.

Of course there is. If they know they have no legal claim then that is at the very least embezzlement.

Sorry but there's no way that would pass muster, banks have broad latitude under AML laws to take whatever steps are necessary and let civil court sort it out. There is no way that the government is going to file a criminal action against a bank who claims that they are freezing funds for cause. That's not a US thing either, any of your German banks could do exactly the same thing.

[Thanas]

Are you not reading my posts or are we talking about different scenarios here? I was talking about cops taking stuff when they know there is no cause for that. Any bank that does the same knowing they have no cause will get hammered.

[TheFeniX]

I'm well aware of that, which is why if you give civil courts the ability to establish the equivalent of a probable cause for the seizure in the first place you deal with that problem. That's why probably cause standards exists for criminal proceedings--to prevent the police from using the power of arrest when they don't have evidence.

How is establishing probable cause for civil cases (which have a much lower standard in many areas than criminal proceedings) going to fix the problem? Further, you may even be forced to waive a jury in that instance and only rely on a judge, who may be just as crooked as the cops.

You are forgetting that I specifically stated that the civil court should make the determination NOT a criminal court. Civil courts are designed around proportional response and they don't give a shit about justice as that is not their job.

Answer me this, because I honestly can't think of an example: in what situation where assets should be seized are criminal charges not at hand? Tax Evasion is a crime. Drugs and dealing them: crime. Street Racing: crime. Poaching: same thing. Am I missing something? All I see is a system for cops to fight "crime" when they can't prove anything legally. If that's the case, they can go play in traffic.

I'm not saying what I am proposing is perfect but its better and more realistic than passing laws against civil forfeiture.

The OP is as against civil forfeiture as "innocent till proven guilty" is against justice. What it's saying is that law enforcement uses forfeiture to fight crime when no crime is being committed and that's fucking dumb. If you can charge someone with a crime do it, if you can't they get to leave with all their stuff.

Yes but not to the same standard as a criminal proceeding which is the basis for civil court in the first place. Remember the standard of evidence in civil court is based around "preponderance of evidence" not "beyond a reasonable doubt". That's exactly the standard you want for these cases.

To me, all that means is that by pushing this into the civil system, the state has even less obstacles to fuck people over, even though no real obstacles exist even now.

Right now, in Texas, a cop can steal my car just because his drug dog sniffed something suspicious, even though those guys will go batshit over some beef jerky. In that case, I have to spend thousands of dollars in HOPES to get my car back. How can you fix that system? By saying, "oh, you'd have to have probable cause" which is exactly what they had by the dog barking. But here's the break: if they don't find anything, they can't charge me with a crime (well, they could because... cops, but bear with me). However, if they don't find anything, they can still keep my car.

That is one of the dumbest things I've ever had to type and it's the fucking law in many states.

[The Kernel]

Are you not reading my posts or are we talking about different scenarios here? I was talking about cops taking stuff when they know there is no cause for that. Any bank that does the same knowing they have no cause will get hammered.

Yeah they will get hammered...in civil court. Just like you can file an action against the government in the same situation. You really don't see the parallel here?

[Thanas]

No, they will also get hit with criminal charges. Do you see the parallel here?

[The Kernel]

How is establishing probable cause for civil cases (which have a much lower standard in many areas than criminal proceedings) going to fix the problem? Further, you may even be forced to waive a jury in that instance and only rely on a judge, who may be just as crooked as the cops.

Because right now there is no barrier at all and checks and balances are the foundation of government.

Answer me this, because I honestly can't think of an example: in what situation where assets should be seized are criminal charges not at hand? Tax Evasion is a crime. Drugs and dealing them: crime. Street Racing: crime. Poaching: same thing. Am I missing something? All I see is a system for cops to fight "crime" when they can't prove anything legally. If that's the case, they can go play in traffic.

Organized crime and drug trafficking of course. And this isn't about whether or not they need to prove it in a criminal court, you can still file a civil action. Or did you forget that OJ Simpson was acquitted in criminal court but had all of his money taken in a civil suit? Whether you like civil law or not is a separate issue.

The OP is as against civil forfeiture as "innocent till proven guilty" is against justice. What it's saying is that law enforcement uses forfeiture to fight crime when no crime is being committed and that's fucking dumb. If you can charge someone with a crime do it, if you can't they get to leave with all their stuff.

You are using the term "guilty" where it is not relevant. Civil cases are not criminal cases.

To me, all that means is that by pushing this into the civil system, the state has even less obstacles to fuck people over, even though no real obstacles exist even now.

Right now, in Texas, a cop can steal my car just because his drug dog sniffed something suspicious, even though those guys will go batshit over some beef jerky. In that case, I have to spend thousands of dollars in HOPES to get my car back. How can you fix that system? By saying, "oh, you'd have to have probable cause" which is exactly what they had by the dog barking. But here's the break: if they don't find anything, they can't charge me with a crime (well, they could because... cops, but bear with me). However, if they don't find anything, they can still keep my car.

That is one of the dumbest things I've ever had to type and it's the fucking law in many states.

I'm suggesting having to demonstrate probable cause for the seized assets being proceeds of a crime, probably cause for the search is a totally different thing.