It isn't unconstitutional as the courts have affirmed over and over again. Property is not afforded the rights of humans and cases can be levied against property directly.
But just because something is constitutional doesn't mean we have to do it, which is why simply getting the legislature to say "hey don't do that" is the approach left right now.
> Property is not afforded the rights of humans and cases can be levied against property directly.
That is a ridiculous argument. Taking someone’s car or money isn’t “punishing the property” or “hurting the car’s feelings,” it’s depriving a citizen or resident of what is (until proven otherwise in a court of law) rightfully theirs and transgressing on their individual liberties. It is theft.
> 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.
The 5th amendment
> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
IMO it's pretty cut and dry that the government can't just seize your stuff on a whim, and was written as a reaction to the British Crown doing exactly this sort of thing.
Yep, this is exactly how they are able to achieve it and will probably continue to. For a legal document, The Constitution is pretty weak and ambiguous on what authority the government has, the means of exercising power, and defined limits or procedure for operating. This is an inherent problem with any government, as it has the monopoly on force and incentives to expand its domain for any number of reasons.
I think the first big shift happened with Oliver Wendell Holmes and the move away from originalist interpretation. Arguably this was bound to happened, and will continue to expand further out. The Constitution is honestly just given a nod and has little bearing on law at this point.
Not a lawyer, not a judge, not a member of congress, but I would suggest, as a starting point, that an "unreasonable seizure" is one conducted against a citizen who has not been convicted of a crime, as is the case with civil forfeiture. Up to the courts to decide, of course, but that's where I'd start.
It's a huge problem and without a doubt legally ambiguous. Originalist interpretation is not a great legal framework, but it's fairly apparent some current policy is not congruent with the intention behind some of the amendments. I have no clue or power to change any of it, but it's still worth pointing out.
I agree with you but the parent’s point still stands. This is how the courts have allowed suits to go through in more than just civil forfeiture cases. If the property isn’t legally yours then you can’t possibly claim property ownership rights to it. So you “sue” the property and have all parties who believe they have a claim to it be parties in the lawsuit. It’s a quirk of the legal system. In practice it’s still the gov’t vs. the original “owner” fighting over who owns it.
It can’t be theft until after the courts decide who owns it. Then it can be theft.
Wrong. It's theft at the very moment that an unjustified seizure occurs. The recourse you have is to convince a court to declare it theft and force the taker to give it back. But the court's declaration is only a legal thing, not able to define reality.
> Property is not afforded the rights of humans and cases can be levied against property directly.
This is accurate insofar as it represents the current jurisprudence, but absolutely false in the moral or straightforward reading of the constitution.
The 'takings' clause of the 5th amendment, for example:
"nor shall private property be taken for public use, without just compensation"
That seems to clearly establish that humans have a right to their private property not being taken from them. Whether the legal fiction is a case against my car, or "a Toyota Corolla" doesn't have any practical difference on the outcome. The government can seize my car without due process,
Civil asset forfeiture is flat-out unconstitutional. The fact that is exists without due process or just compensation is wrong, and the current jurisprudence on it is simply wrong. It's rare for me to be willing to step out on a limb and say the courts are simply wrong on an issue, but civil asset forfeiture is a limb I will happily step out onto.
Judges are fallible. Actually, if you dig through the history of precedent surrounding any particular issue, you realize judges are incredibly fallible. There are stupid judges, corrupt judges, and judges that simply don't care that much.
For this reason, the argument of "no, the courts said otherwise" with regards to jurisprudence can be particularly frustrating.
This was an outgrowth of the 80's and the war on drugs.
It ruffled the feathers of average Americans that drug dealers got to keep their fancy cars and boats. Hence this was a legal way for the state to take those ill gotten gains. Over time its use has grown. Since the initial 'victims' were so unsympathetic, case law was established that everything was legal.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"
Seems right there, in plain english, in the 4th Amendment. I don't know what you're on about.
The problem is in the word "their". If they stole it, it's not theirs. If they bought it with stolen money, again, it's not theirs. Or at least, so goes the legal theory.
It seems straightforward enough, until you realize that it basically shifts the burden of proof for any ownership to you. And that includes the recursive problem of the money you used to buy it, so merely having a receipt doesn't suffice.
In a straightforward sense, it really does turn out to be that the word "their" is more complicated than it seems at first blush. But it's also clear that this complication is easily abused, and has been -- to a degree that courts should have stomped on long ago.
CAF is often used for properties that is theirs, and was bought with valid money, under the ""suspicion"" that the property was used for illegal things.
One case that is an example is a waitress who stored their tips in a jar at home getting all of it seized because 15 years ago she had a marijuana possession charge while in college (which was likely why she's a waitress in the first place (but thats another issue)).
Or people losing their cars because they got lost and drove down a "red light street" twice so they must clearly be looking for street workers.
Not to mention states that border vegas seizing winnings of anybody they can pull over who decided to cash all or part of their winnings in hard cash and make the mistake of letting hte officer see it. (for the meme of it mostly)
I suspect the gray area and disagreement comes out of the word "unreasonable", which looks much different to the suspect, the police, and the judicial system.
If you live in the US, as long as you sue the car and win first, (which not everyone can do), that's a perfectly fine argument. If you don't like it, change it.
I don't have emotions on this matter and I don't care what you think and I haven't stated my actual opinion. The authority on this matter are the courts.
The courts have evaluated civil forfeiture under
4th amendment arguments
5th amendment arguments
6th amendment arguments
8th amendment arguments
14th amendment arguments
and only found the 8th amendment argument against excessive fines to hold some weight, but not to undo civil asset forfeiture but only clarifying that the 8th amendment actually applies to the states.
if you want the executive branches to act differently and the courts to rule differently then you have to change what the legislature allows them to do.
like I wrote, just because something is constitutional doesn't mean we have to do it.
if only there was a completely different branch of government we could get to limit how the courts could rule, if someone figures it out they should do it and make an article about it
i might even write a comment about how thats the most effective way to change the reality, I wonder if people will read that part though, what do you think?
If people with the power to, start making more use of these discretionary powers, it can make a big difference without having to overturn the seemingly extensive jurisprudence.
Some legal hacking.
As an anecdotal experience, I have been convicted of a felony and allowed to keep the cash in my possession by the judge, which was not SOP. I guess I had made an impression. No snitching involved.
Hmm, no. The supreme court is not the only arbiter of that.
The president and congress are just as sworn to upheld it, and with respect to several portions of it (e.g. impeachment) are the only arbiters of what it means. With the rare exception of cases where the Supreme Court has original jurisdiction [1] - congress is even allowed to replace the Supreme Court with a new final court of appeals. The Supreme Court has surprisingly little constitutional power if Congress decides to sideline them.
[1] > In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction
[2] (Emphasis added) > In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
You must make the difference between the institution and the members. Just because Congress can change the makeup of the Court, doesn't mean that the institution has. It's a Catch 22 - in the end the final interpreter will always have absolute liberty over meaning.
And again, in theory Congress can make exceptions to it, but in the end its still up to the Supreme Court to decide that they make sense. A piece of paper has no meaning in and of itself.
Marbury vs Madison is a result of an interpretation of the constitution, and the constitution de facto grants that power to the highest court of appeal which happens to be the Supreme Court. As a result, the highest court of appeal essentially is the constitution.
If you did disagree with the courts, you should have qualified your statement that “[the courts have ruled] property is not afforded the rights of humans and cases can be levied against property directly”
Otherwise this comment (and the one you copy-pasted) looks like knee jerk damage control.
I didn't state my opinion at all. Why do you think there is no latitude to just write accuracy statements? That shouldn't be a foreign concept. I don't feel the need to write disclaimers.
You are correct in that CAF cases are against the property, and not the owner, and thus in that sense physical goods have no constitutional rights.
But that doesn't mean that a CAF isn't an illegal seizure of property from someone who does have constitutional rights not to be deprived of their property without due process.
Have example cases re-affirming the constitutionality of civil forfeiture? It seems to run counter the 4th, 5th, and 8th amendments, at minimum. This layman's reading and understanding is generally what people mean when they speak of "unconstitutional". Nuances found through the courts are then not "obvious" and more detail is helpful to have a helpful conversation on all sides.
and only found the 8th amendment argument against excessive fines to hold some weight, but not to undo civil asset forfeiture but only clarifying that the 8th amendment actually applies to the states
They file the case against the property, not the human. If we want a constitutional guarantee on the property then we need a new constitution with its own property based bill of rights
the cases aren't on my clipboard but anyone passing by feel free to fill them in. The 8th amendment case was before the US Supreme Court this year or last, despite the positive ruling it did not get the man's property back until the state he was in re-ruled.
If property doesn't have rights, how can the 8th ammendment protect it, yet it doesn't have protections under the others? The 4th explicitly requires the seizure of property to be based on at least probable cause. Just seems like a massive contradiction.
I guess someone needs to file a civil rights suit because they were deprived of that property under the color of law. The 4th ammendment is quite clear that one is to be secure in their affects. Doesn't matter if the case was filed against the property, the effect was felt by the person.
For a layperson like me, can you help me understand how it is that a case can be filed against property with respect to civil forfeiture while ignoring the constitutional violations against the person? I mean, how can anyone with a straight face claim that seizing property does not have burdensome negative consequences directly against the property owner, a real person who does have constitutional protections? How is it that the law in practice can become so far away removed from what seems so obviously wrong to those of us not familiar?
I trust you that there probably are many court decisions that have found civil forfeiture not to be unconstitutional. But it feels like it comes down to some pedantic twisting of words which go against the spirit of the constitution.
It is paradoxical. The reality is that many constitutions around the world have aspects that contradict and can overrule other rights afforded in them, and America is no exception despite the advertisement to the contrary.
In this case because the human is not on trial, they don't get to exercise those rights.
>It isn't unconstitutional as the courts have affirmed over and over again.
Well, the US courts had affirmed slavery as constitutional at some point too, time and again, until the 13th amendment. And then you had e.g. the declaration of independence and its "unalienable rights". What a farse.
It makes sense to think about the spirit of a constitution, not just what some judges has historically or thus far accepted as such.
It was explicitly constitutional. They managed to avoid the word "slave", but Article 1, Section 2, clause 3 explicitly distinguishes "free Persons" from "all other persons" (who only count for 3/5 when it comes to computing representatives).
They called it the Fugitive Slave Clause, even though the word doesn't appear in the Constitution. So yeah, that really wasn't just a matter of judges thinking about the "spirit" of the constitution. It was very clear that this was a slave nation.
Bonus: it still is, even with the 13th amendment. It does use the word slavery, and then provides an exception for people convicted of a crime.
If property has no rights than the justice system should have no claim of authority over it.
Property lacks agency, property lacks an opinion, property lacks an ability to express oversight and input on the system...therefore property should not be subject to that system.
Same goes for juveniles, frankly. If you can't vote for the system or participate...why the heck can it take away your liberty? It already has.
This is where I (not from the US) stop and ask: Wait, what?
Yeah, I've heard it before, but I never understood this part. Does the property go to the court and speak on its own behalf? Does it have a right to stay silent? How does the case work?
Is somebody notified? I guess the property owner knows about it, since it's taken, but is their presence required on court or can the matter be judged while the owner is under arrest?
Civil forfeiture cases are routinely filed in parallel to criminal cases. Criminal forfeiture also exists, which is not being considered controversial at this point in time.
One of the bigger controversies around civil cases is that they are often filed while the owner is not charged with anything.
In both civil and criminal issues, the human is often deprived of the very property they would use to pay a lawyer and help to defend themselves. By design.
Solution is to have stuff that nobody including the state knows about. "I have nothing to hide" well you should.
Ok, so I understand that when there is enough evidence to arrest the property owner, there is also enough evidence for a criminal forfeiture, so my concern up there does not happen in practice.
Also, whatever judgement happens, it's initiated by the owner, so there isn't an issue with timing.
That clarifies a bit how it works.
Anyway, the idea that just having large quantities of money creates strong suspicion of drug crimes that appears again and again on that linked document is beyond disgusting.
But just because something is constitutional doesn't mean we have to do it, which is why simply getting the legislature to say "hey don't do that" is the approach left right now.