
Rules Change on I.R.S. Seizures, Too Late for Some - adamnemecek
http://www.nytimes.com/2015/05/01/us/politics/rules-change-on-irs-seizures-too-late-for-some.html
======
jMyles
"...law enforcement agencies get to keep forfeiture proceeds. Such a windfall,
critics say, creates perverse incentives..."

'Critics' say? Is there anybody who doesn't concur with this assessment? It
seems like a flat, unambiguous fact.

This toxic style of perspective hijacking is a huge part of the problem. It's
always, "[government interest] says sky is green; critics say blue. The facts
remain elusive."

~~~
guelo
I'm sure there are law enforcement officers that disagree that there are
perverse incentives. So the reporter has to quote somebody, he can't just
state it as fact.

~~~
toomuchtodo
> So the reporter has to quote somebody, he can't just state it as fact.

Why not? Its economics 101 [1]. Incentives matter, and the existing rules
create "perverse incentives."

Or are we talking about offending law enforcement and government agencies?
Because fact and ego are two different things.

[1]
[http://en.wikiversity.org/wiki/10_Principles_of_Economics](http://en.wikiversity.org/wiki/10_Principles_of_Economics)

------
norikki
[http://reason.com/blog/2015/05/01/irs-steals-107000-from-
con...](http://reason.com/blog/2015/05/01/irs-steals-107000-from-convenience-
store)

The above article doesn't leave out the fact that this seizure was initiated
two months _after_ the policy change. Looks like the policy has only changed
on paper.

It also doesn't fail to mention that the justification for the gag order was
to prevent tipping off the suspect, but it has already been established that
McLellan committed no crime, so its explicitly being used to keep this from
the public's attention.

It's unfortunate that NYT is so bad at reporting the relevant facts.

------
drawkbox
Civil forfeiture law is one of the most despicable aspects to our current
system. The echoes to monarchy and state power greater than individual rights
is too much. If you are in the US, this is exactly what smarter people before
us crossed the ocean to get away from.

~~~
discardorama
> Civil forfeiture law is one of the most despicable aspects to our current
> system.

And yet, under Democratic and Republican presidents; under Democratic and
Republican House control; and under Democratic and Republican Senate control,
the policy persists. Why is that? How much power _do_ these agencies have over
the elected officials?

------
ScottBurson
_“Your client needs to resolve this or litigate it,” [prosecutor Steve] West
wrote. “But publicity about it doesn’t help. It just ratchets up feelings in
the agency.”_

My jaw dropped when I read this.

Dear Mr. West: your job isn't about your feelings. And it certainly isn't
about your need to be right or your refusal to admit a mistake. You need to
grow up -- and I also think you need a new job.

~~~
mattdeboard
Yeah I was about to quote & comment on that same part. Who cares about your
stupid feelings? This is a _legal case_ , that's not how it's supposed to
work.

~~~
discardorama
Well, the fact that _feelings_ are being hurt means that it's not purely a
legal case.

------
fiatmoney
"the prosecutor on the case, Steve West, was unmoved. Notified of the hearing
by Mr. McLellan’s lawyer at the time, he responded with concern that the
seizure warrant in the case, filed under seal but later given to Mr. McLellan,
had been handed over to a congressional committee...

'Your client needs to resolve this or litigate it,' Mr. West wrote. 'But
publicity about it doesn’t help. It just ratchets up feelings in the agency.'"

That's pretty breathtaking. He's admitting that complaining to one's elected
representatives in government about what is admitted to be an abuse of
government power will result in those agents retaliating against you. So shut
up and pay us, peasant.

------
kabdib
"He [Steve West, a prosecutor] concluded with a settlement offer in which the
government would keep half the money."

How do these people sleep at night?

~~~
300bps
They start out with the "guilty until proven innocent" maxim that civil
forfeiture operates under and then convince themselves they're doing you a
favor by taking all your money and returning half of it.

~~~
adventured
Some of them are simply crooks, using their positions for pre-planned theft:

[http://www.nytimes.com/2014/11/10/us/police-use-
department-w...](http://www.nytimes.com/2014/11/10/us/police-use-department-
wish-list-when-deciding-which-assets-to-seize.html)

------
tomohawk
It's too bad the president is only lukewarm at best on this issue, as shown by
his nomination of Lynch.

[http://www.forbes.com/sites/georgeleef/2014/11/25/loretta-
ly...](http://www.forbes.com/sites/georgeleef/2014/11/25/loretta-lynch-has-no-
problem-with-civil-asset-forfeiture-and-thats-a-problem/)

~~~
PhantomGremlin
It really doesn't matter whether or not the President nominated Lynch. The sad
reality is the Senate was too chickenshit to "just say no".

In the President's defense, the USA has a long and sordid history of bad
Attorney's General. I'm sure that Lynch is nowhere near the bottom of that
list.

------
jkestner
"Don’t bother with jewelry (too hard to dispose of) and computers
(“everybody’s got one already”), the experts counseled. Do go after flat
screen TVs, cash and cars. Especially nice cars."

Ugh. This language sounds similar to the language thieves use in hitting
homes.

~~~
Everlag
This is the language being used by thieves to hit homes; these are just lawful
thieves.

------
hurin
One thing I never understood -- and these articles don't appear to cover, is
how laws enabling civil forfeiture were never struck down as unconstitutional
in the first place. Isn't this an obvious disregard for the fourth amendment?

~~~
pmorici
The economics of disputing it don't work for the person who's assets were
seized most of the time. Either the amount that was seized is relatively small
and it would take several times that amount to battle the government over
years. On the other hand say that clean out your whole bank account then you
have no assets to fight them even if they took your life savings and it would
make sense to fight them.

------
mikerichards
There's absolutely no accountability by the government. Nobody is ever
prosecuted, reprimanded for these thefts from American citizens. These agency
representatives (Lerner) have no fear of congress and thus the checks and
balances that would typically be in effect are meaningless.

Until these agencies have their budgets severely slashed (like someone would
get a fine for breaking the law), there's no hope that these bureaucratic
thugs will change their ways.

~~~
jqm
A few criminal prosecutions for abuse of office and forfeiture of pensions
would do even more. But you are right. Many government bureaucrats feel
completely unaccountable to the populace, and this needs to change.

~~~
fennecfoxen
_" Your client needs to resolve this or litigate it," Mr. West wrote. "But
publicity about it doesn’t help. It just ratchets up feelings in the agency."_

yep

------
seansmccullough
How was this legal in the first place?

~~~
adventured
It wasn't, and arguably is not in any way constitutional. This became a thing
mostly after 9/11\. Terrorism and drug laws were significantly expanded in
scope. For years the public was looking the other way - distracted by fear -
while the government began openly breaking or bending the law, almost without
any concerns.

During that time, many behaviors became routine (with or without actual laws
backing the behavior up) that have extremely questionable legal standing, and
typically zero moral standing.

~~~
rosser
Asset forfeiture rates were actually significantly _down_ in the years
immediately following the September 11th attacks. It wasn't until 2006 that
annual forfeiture recoveries reached the rates they did during the 90s (at
which point, yes, they increased _sharply_ — nearly quadrupling in just two
years). [1]

As for the constitutionality of asset forfeiture, you'll have to take that up
with SCotUS, who've (unfortunately) rather consistently disagreed with you.

[1]:
[http://www.drugwarfacts.org/cms/Forfeiture](http://www.drugwarfacts.org/cms/Forfeiture)

------
imaginenore
I don't get why he can't simply sue the government. It's a decent sum of
money, and it seems like a pretty easy case to win.

~~~
fennecfoxen
Well, he _can_ try to sue, but it's complicated because the case isn't against
him, it's a case against the money, and probably named something like "United
States vs $107,702.66". He's a third-party claimant.

If you're thinking that this sounds an awful lot like "guilty until proven
innocent" then you can find _loads_ of _really fun reading_ over with our
libertarian friends at [http://reason.com/tags/asset-
forfeiture](http://reason.com/tags/asset-forfeiture) where they've been
raising alarms about the trend since _1989_ (long before its abuse in places
like Ferguson, MO made talking about it cool)

Postscript: Oh, I think I was spot on about the name; thanks Google.
[https://www.docketalarm.com/cases/North_Carolina_Eastern_Dis...](https://www.docketalarm.com/cases/North_Carolina_Eastern_District_Court/7
--14-cv-00295/United_States_of_America_v._$107702.66_in_U._S._Currency/)

~~~
jkestner
> It's a case against the money

Not only are corporations people, money is people, my friend. This means that
money has free speech, which probably has recursive implications for campaign
fundraising.

Seriously - has the idea of an object without will being named a defendant
ever been challenged in the courts? Don't tell me that the person who owned
the money has no standing - they certainly had property taken from them.

~~~
jamestnz
> Seriously - has the idea of an object without will being named a defendant
> ever been challenged in the courts? Don't tell me that the person who owned
> the money has no standing - they certainly had property taken from them.

Funnily enough, the idea of suing the property is actually a well-established
legal concept, at least generally [1]. It falls under the "in rem"
jurisdiction of the court, which is its power over things, as opposed to power
over people (which would be the more familiar "in personam", where a person is
named in a suit or complaint).

Where in rem jurisdiction gets problematic is its use in civil forfeitures,
for the reasons you say: The presumptive owner of the seized property is in
fact readily available (i.e. the person it was seized from), and so any
complaint should rightly proceed against them in personam, not against the
property in rem.

Also note that the money isn't being named as a "defendant" as such -- a
defendant is a party you'd find in a _criminal_ case, and this is a _civil_
forfeiture. In a civil forfeiture, since the complaint is indeed against the
property, the owner of the property is a third-party to the case.

At this point the government pretends that the true owner of the property is
unknown, so to fight the seizure it's first necessary for you to (a) legally
assert ownership, and (b) legally deny the allegations in the seizure
complaint. And only THEN can you proceed to the long and costly litigation
against the government in which you must actually prove these
assertions/denials. If things go well, some months or years later you'll get
your stuff back. If you're really lucky, the legal costs won't have exceeded
the value involved in the first place.

Meanwhile, in many civil cash seizures, the money has gone straight into the
slush fund of the local police department that confiscated it... and the whole
thing starts to look like one big end-run around due process and
constitutional protection.

BTW, the government/courts also perform _criminal_ forfeitures, which might be
what you're thinking of where a confiscation involves a named defendant. For
example, a punitive forfeiture doled out to a guilty defendant in a criminal
trial.

[1] The legendary case of _United States v. Article Consisting of 50,000
Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls_
provides an amusing example of the way these suits are styled.

~~~
jkestner
Thanks for the awesome knowledge, law-nerd. To your footnote, I've lost Tell
me, why do we have civil forfeiture and civil courts? Other than the second-
rate satisfaction when an OJ Simpson gets sued after being acquitted of
criminal charges.

The dictionary definition of 'democratic' includes: "available to the broad
masses of the people". Between the cost and the knowledge needed, asserting
your rights in forfeiture cases is not practically available to the broad
masses, i.e. the socialeconomic class that is targeted. This is not
democratic.

So if it's starting to look like a constitutional violation, when are we going
to see a lawsuit? ALCU should be on this, right? Or while police departments
are on the defensive, do we get the political will to roll back the seizure
laws that led to this?

------
ams6110
I don't defend asset forfeiture for simply making large cash deposits, but on
the other hand there is no way a guy selling sandwiches for $2.75 is taking in
more than $10,000/day in cash. We aren't getting the full story here.

Making a daily bank deposit is not "structuring" it's a common (and a best)
practice. So if he was accumulating cash for a week or more and making large
deposits, he was being stupid. Not that it justifies forfeiture, if that's all
it was. But something isn't making sense here.

~~~
pmorici
That's the point. The guy _didn't_ make more than $10k in cash /day. His
deposits each day were for less than $10k they said that because of that he
was trying to evade the 10k reporting limit since he made regular deposits
under the limit. ie: they are claiming if you made a daily deposit of say
$3,000 that is suspicious and are seizing your money for structuring.

~~~
ams6110
Still not buying. Every fast food restaurant makes at least one, if not
several <$5,000 deposits every day of the week. It's completely normal for
that type of business. He got flagged for some other reason that is not being
disclosed.

~~~
function_seven
Well for some truly bizarre reason, the government is keeping that "other
reason" a secret, and not charging them with anything at all.

That is not something the government should ever be allowed to do, at all,
under any circumstance.

