
Stop-And-Seize Turns Police into Self-Funding Gangs - davidiach
http://www.bloombergview.com/articles/2015-11-12/stop-and-seize-turns-police-into-self-funding-gangs
======
coreyp_1
Amendment IV

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.

I don't get it, which is why I'm asking here: Why is this "stop-and-seize" not
considered unconstitutional? Has it just not been challenged that far yet, or
is there a legal rationale that I have not heard yet?

~~~
joshuaheard
No one would argue illegally obtained money cannot be confiscated. A bank
robber cannot keep his stolen money, or someone selling stolen goods, or a
drug dealer. The trouble with civil asset forfeiture, as its properly known,
is that the burden of proof has been shifted to the accused. So, instead of
the state having to prove your money is illegally obtained, or that any crime
was committed, you have to prove there was not.

For a small amount of money, it is not worth it to some people to invest the
time and money to sue the state to get the money back. For those that can
afford a lawyer and a lawsuit, there is (Constitutional) due process.

The remedy lies with the legislatures to add a criminal element, to reverse
the burden of proof, and to add an interest penalty to losing agencies.

As for the article, it is a novel idea. I would think that the amount and type
of official corruption would be a better indicator of a state in decline.

~~~
Lawtonfogle
>The trouble with civil asset forfeiture, as its properly known, is that the
burden of proof has been shifted to the accused. So, instead of the state
having to prove your money is illegally obtained, or that any crime was
committed, you have to prove there was not.

It is worse than that. The money is what is charged, not the person. So the
money has to prove itself innocent, which is pretty much impossible. If you
hire a fancy lawyer, you might be able to fight on the money's behalf.

It seems so weird that had one read it in a fictional story, it would've
broken one's suspension of disbelief.

~~~
rayiner
The money isn't "charged." The case is just styled as _In re $35.00 of US
Currency_ because the case is about the ownership status of the property, not
about any specific person. The money doesn't have to "prove itself innocent."
The legitimate owner just needs to rebut the government's argument that it was
illegally obtained.

~~~
makomk
Of course, this styling isn't just used in cases where the property was
illegally obtained. It's also used in cases where it's not in dispute that the
property was legally obtained, and the government simply seeks to take it from
the legitimate owner as a penalty for a crime they assert he committed, in
order to avoid naming the owner as a defendant even though they know exactly
who owned the property they seized.

~~~
rayiner
Source?

~~~
makomk
Take a look at United States v. One Ford Coupe Automobile for a start.

I'm not convinced you're entirely correct in saying that "the money isn't
charged" either. So far as I can tell, the idea that the money is in fact
being charged is an important part of the legal justification for asset
forfeiture in the absence of an actual criminal conviction, or indeed actual
culpability on the part of the owner. From Bennis v. Michigan (which you
mentioned in another thread):

"On the Government's appeal from the Circuit Court's acquittal of the vessel,
it was contended by the owner that the vessel could not be forfeited until he
was convicted for the privateering. The Court rejected this contention,
explaining: "The thing is here primarily considered as the offender, or rather
the offence is attached primarily to the thing." Id., at 14. In another
admiralty forfeiture decision 17 years later, Justice Story wrote for the
Court that in in rem admiralty proceedings "the acts of the master and crew .
. . bind the interest of the owner of the ship, whether he be innocent or
guilty; and he impliedly submits to whatever the law denounces as a forfeiture
attached to the ship by reason of their unlawful or wanton wrongs." Harmony v.
United States, 2 How. 210, 234 (1844) (emphasis added)."

~~~
rayiner
That quote from Justice Story is precisely why such proceedings are not a
"penalty for a crime [the Government] assert[s] [someone] committed." The
purpose of such proceedings is to confiscate property used for illegal
purposes (so it cannot continue to be used for illegal purposes), not to
punish the owners of the property. Hence why in that case they confiscated the
ship "whether [the owner] be innocent or guilty."

~~~
anonbanker
So, at this exact moment, I had someone asking me what the difference between
brackets and parenthesis was, legally, and I was able to hand them the laptop,
and say "that".

baader-meinhoff or just serendipity, thanks. :)

------
DickingAround
We cannot expect the world to become more sane. We must ourselves engineer our
way out of it. We will engineer our way out of surveillance with encryption.
We will engineer our way our of highway seizure with bitcoin (or a similar
tech). If does seem bad now, but we will solve it and we will solve it without
needing to convince others it's broken.

~~~
MCRed
We may or may not solve it with engineering, but one thing I've become
increasingly certain of is we won't solve it by convincing others it's broken.
For decades Freedom of Speech was sacrosanct, and now we have a whole
generation that rejects it out of hand and feels they have the right to
control others speech, even trivially "offensive" speech.

Bitcoin and other engineering efforts, however, have great potential.

------
asift
The author's reference to Morris' high-end/low-end classification of states
and absolute preference for centralization seems simplistic and out of touch
with economic research on the topic.

I think Elinor Ostrom (the only female recipient of the Nobel Prize in
economics to date) provides a much more useful framework for evaluating
institutional design. In some cases centralization works and in others
decentralization is preferable, but a very important component that gets left
out of Morris' dichotomy is the role that jurisdictional overlap plays in
forcing centralized and decentralized institutions to compete against each
other and ultimately provide better outcomes than either could independently.

------
heapcity
I was arrested while hiking and acquitted because I did nothing wrong. But the
police never returned my expensive sun glasses or my expensive optical water
purifier. "We don't have them."

~~~
cryoshon
Ah, sorry to hear the pigs robbed you. Happens to the best of us.

I'll also observe that you probably had to spend cash on a lawyer in order to
prove your innocence.

~~~
heapcity
Making a call from the jailhouse is exorbitantly expensive too.

------
kbenson
It seems pretty clear to me the problem here is misaligned incentives. If the
police weren't allowed to keep seized money, and where it did end up was
disconnected enough, there would be little reason to confiscate property
without due cause.

Where we could redirect the money that it didn't cause problems is an
interesting question, and I'm not sure I know of an answer that doesn't create
other considerable problems.

~~~
pavel_lishin
Why redirect it at all? It's evidence. Put it in a bag, and store it. Nobody
gets to spend it until a case is closed.

~~~
kbenson
I obviously mean after it's no longer in dispute, you can't purposefully
destroy/lose evidence. After any case is closed, the property should either be
returned, or dispensed with in a way that doesn't incentivize wrongful
collection of property in the first place.

------
walterbell
[http://www.theatlantic.com/international/archive/2015/03/ret...](http://www.theatlantic.com/international/archive/2015/03/return-
of-the-mercenary/388616/), _" The use of mercenaries in warfare has a very
long history—much longer, in fact, than the almost-exclusive deployment of
national militaries to wage wars. Before the Peace of Westphalia in 1648 ended
Europe's Thirty Years' War and marked the rise of the modern state system,
medieval powers from kings to popes routinely hired private fighters to do
battle for them. As state governments sought a monopoly on the use of force
within their territories in the 17th century, however, they moved to stamp out
violence by non-state actors, including mercenaries, driving the industry
underground."_

The Peace of Westphalia,
[https://en.m.wikipedia.org/wiki/Peace_of_Westphalia](https://en.m.wikipedia.org/wiki/Peace_of_Westphalia),
_" … was a series of peace treaties signed between May and October 1648 …
established … a new system of political order in central Europe, later called
Westphalian sovereignty, based upon the concept of co-existing sovereign
states … General recognition of the exclusive sovereignty of each party over
its lands, people, and agents abroad, and responsibility for the warlike acts
of any of its citizens or agents. Issuance of unrestricted letters of marque
and reprisal to privateers was forbidden."_

~~~
clock_tower
I'd add that mercenaries were around, and were a serious problem, from the
Late Middle Ages to 1648; some accounts I've read of the Hundred Years' War
sound almost exactly like accounts of the Thirty Years' War 300 years later.
France, like the Germanies, was reduced to a heap of ruins -- and not just
because of the bubonic plague.

------
downandout
Perfect example of this [1]: A poker player carrying a large amount of cash is
pulled over. The cops not only seize his $167,000 poker bankroll, but his
vehicle, laptop, and cell phone. They then tell him that he is "free to go"
and leave him by the side of the road in the middle of the desert with $192 in
cash and no cell phone.

[1] [http://www.cardplayer.com/poker-news/19177-hawaii-man-
fights...](http://www.cardplayer.com/poker-news/19177-hawaii-man-fights-asset-
forfeiture-case-similar-to-the-poker-players-in-iowa)

------
eshem
More in-depth investigation by the Washington Post from 2014:

[http://www.washingtonpost.com/sf/investigative/2014/09/06/st...](http://www.washingtonpost.com/sf/investigative/2014/09/06/stop-
and-seize/)

------
maxerickson
I'd prefer a seize and destroy policy for contraband over the current system
of prosecution. For stuff like heroin or cocaine there doesn't even need to be
much of a system for recovery, for prescription pills and the like there
probably does, but I think there are some bright lines that can be drawn
there.

Cash and other legal property should not be seized without a warrant though.

------
alistproducer2
Serious question. We're all problem solvers here. There has got to be a better
way to get our elected leaders to pay more immediate attention to blatantly
immoral and unconstitutional stuff like this.

As developers and engineers we should come up with a technology to force issue
on things like this. I'm pretty tired of reading a story like this and feeling
helpless to change it,

~~~
woah
Get out there and join political organizations. Another website just isn't
going to change things.

~~~
alistproducer2
I don't know twitter is "just a website" and it's helped change lots of things
all over the world, so......

~~~
Retra
Twitter's influence in politics is not really the result of the programmers'
efforts. It's the result of the politically active people using it.

The Twitter platform is at best necessary but not sufficient for its effects.
But lots of things are in the same boat. All basic utilities are required for
twitter to work, but you wouldn't credit food, waste, and electric companies
for such things. And at worst, Twitter isn't even necessary.

------
clumsysmurf
"If you believe -- as many economists do -- that the rule of law is a key
determinant of a nation’s prosperity, then you should be worried about this.
Stop-and-seize should be stopped."

A good book that talks about this is "The Locus Effect"
[http://www.amazon.com/Locust-Effect-Poverty-Requires-
Violenc...](http://www.amazon.com/Locust-Effect-Poverty-Requires-
Violence/dp/0190229268)

------
erjjones
Its a booming business for the states and law enforcement. The stats don't
lie.
[https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United...](https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_States#/media/File:Payouts_to_states_in_USA_by_Federal_Govt_under_Equitable_Sharing_Program.png)

------
spacemanmatt
Scenario: You're on the jury of a person accused of killing an undercover
policeman who tried to deprive them of their suitcase full of cash. We can't
know if the cash was illegally obtained, as they are not on trial nor will the
government charge them for any crimes that would connect the cash to a crime.
They're only saying the undercover policeman was attempting to make a civil
forfeiture. We can't know whether the undercover identified himself to the
defendant, because he's dead. There's no evidence that the defendant should
have been able to know the deceased was an officer.

How are you inclined to find for the accused?

------
YesThatTom2
Why is this a bad thing? We don't want to pay ANY taxes, so this way only THE
BAD PEOPLE pay to fund the municipalities that do this. ARE YOU A BAD PERSON?
OR ARE YOU ONE OF THOSE TAX US TO DEATH PEOPLE?

Obviously I'm not serious in what I wrote above. The serious point I want to
make is that this is one of the many unintended side-effects of the whole
'lower taxes for the sake of lower taxes' movement. Don't say I didn't warn
ya.

~~~
mc32
They should realize this implementation of the law is a moral hazard and it
should be avoided.

------
javajosh
Actually, the core problem is that when (usually) white, middle-class America
sees a police boot on someone's face their instinct is to say, "Well, I guess
he deserved it." This is particularly the case for working middle-class
mothers. Based on anecdotal conversations, when they see a story about the
police shooting an unarmed man in the back, they think, "Well, the guy was
probably going to grab someone's little girl and take her hostage." When
confronted with stories where the cop was undeniably wrong, they say, "Oh just
a bad apple."

Another problem is when (usually) black America sees a police boot on
someone's face, and notes that statistically it's usually a black face, and
their instinct is to say, "Well, I guess it was because he was black." When
confronted with stories where the face is white, they say nothing.

This breaks my heart. We should never allow a police boot on anyone's face for
any reason. The police are public servants, our servants, there to keep the
peace, and stop violence from happening. They are not the punishers - that is
the role of the court. They are not above the law - they need to hold
themselves to a _higher_ standard of conduct. _The police should be the best
of us_ , but instead we get low-to-average intelligence physically large men
who can keep themselves clean and fit, fill out basic paperwork, and who can
follow orders. Emboldened by the attitudes of white, middle-class women that
"cracking heads" is a sign of order, also a sign of machismo, and absent any
authority to stop it, it continues, and it gets worse.

Now, cops go out on a disturbance call, escalate it to violence, and then they
'hurt the bad guys' \- cracks some heads, throw 'em in jail. The cop moves on,
but 'the bad guys' keep getting hurt, in local lock up, by a justice system
that will never hear their case, and then for years by a privatized penal
system that takes every economic and social advantage of the prisoner that it
legally can.

What we have now is a police force whose individual instinct and unmet need
for "respect" (actually, dominance) drives their decisions. No-one can stop
them. The police have each other's backs. The judiciary has the backs of the
police. And the voters are split between two very different, very wrong
reactions to the problem - which takes back seat to things like "the economy"
and "abortion" in every election.

Right now, the best we can do is tell the stories of the people who've been
harmed by the police. We need to focus on white, middle-class people, to
address both mistaken instincts. We need to fund independent police-
malpractice commissions with real teeth, to investigate allegations of wrong-
doing. More than anything, we need to reform the way police work is done,
making it illegal, for example, for a uniformed cop to coerce a suspect, to
lie about the law, or to escalate a situation. We need a "broken windows"
policy _applied to the police_ where even small breaches of policy - words of
disrespect, for example - trigger a reprimand. We need to ask ourselves why
cops _swarm_ on every encounter with a citizen, why they have their hand on
their gun when they walk up to your car, why they beat people up so much and
get away with it.

~~~
pessimizer
> Another problem is when (usually) black America sees a police boot on
> someone's face, and notes that statistically it's usually a black face, and
> their instinct is to say, "Well, I guess it was because he was black." When
> confronted with stories where the face is white, they say nothing.

This is nonsense that you're using to generate a false equivalence. White
American media has absolutely no interest in what black people have to say
about anything but black, race-related issues. An (assumed by me) claim that
lack of media coverage proves that individual black people aren't saying
anything about incidents of police abuse of white people is offensive. Without
that claim, it's just completely made up. Letting it go may save your poor
heart some sorrow.

~~~
javajosh
If that's true, that's great. I would love to see more (well, any) black
leaders talk about police brutality in general, and not in relation to race.
Do you have any links? In truth, every time I've seen anyone speak in front of
TV cameras about the police, it's always about race. Maybe it is selection
bias. But somehow, I don't think so.

~~~
pessimizer
You're the one who made the claim. I'm the one that said that you had
absolutely no evidence for the claim, and that you created it to fit your
rhetoric.

> But somehow, I don't think so.

Reason by whimsy?

------
golemotron
The real solution to this is not to reform civil forfeiture law but to pass
legislation that makes sure that seized property is held in escrow and
destroyed if a court decides that it does not revert to the owner.

If police/municipalities can't profit from forfeiture and have to pay real
costs for exercising it, it will disappear.

------
rm_-rf_slash
I disagree with the author's attitude towards mercenaries operating in foreign
countries. Having read "The Modern Mercenary", by former Blackwater merc, Sean
McFate, I am fully convinced that mercenaries have a desirable and necessary
place in future conflicts.

Take Afghanistan for example. It is a nation at a major geographic crossroads
that truly acts as a set of tribes and alliances, not a Westphalian-style
state that is Westerners think ought to be the standard. That's why no matter
how much "nation building" we do, nothing succeeds.

Instead, as McFate argues, we should have mercenaries prevent groups like al
Qaeda from using that space to plan attacks on American soil, instead of
spending political capital on forever wars. Mercenaries will be seen as a
foreign defense mechanism against terrorism, like what we see the TSA doing at
home. (Disagree with their tactics all you want, but they have stopped _some_
bombings).

~~~
badsock
Anyone can plan an attack on America in their kitchen. It sounds like you're
describing a paramilitary group that can fly anywhere in the world, violate
whatever sovereignty they please, bust in through the window, and what, just
shoot people that they're pretty sure are up to no good?

The principle of sovereignty is more important than placating America's
paranoia, regardless of whether people think that a country is too
disorganized to deserve the right to not have other countries airdropping
their soldiers into it.

~~~
rm_-rf_slash
Some of the places that host terrorists _arent countries,_ they're messes.
They do not have anything close to a Westphalian state, they are a regional
coalition of tribes and alliances that call themselves a country for a UN vote
and IMF funding. Libya, Iraq, Afganistan, the list goes on.

National militaries are there to solve problems, but in the long run, only
mercenaries can contain them.

It's not just America either. Ethiopia and Kenya would be much better off
paying mercenaries that keep somalia's disfunction and terrorism at bay. You
can fly in, bomb, invade, whatever, but eventually it becomes a politically
unsustainable war.

Mercenaries are just an expense, and they know it.

~~~
jessaustin
_Libya, Iraq, Afganistan, the list goes on._

Afghanistan has had problems for some time, but Libya and Iraq both functioned
as nations before ill-advised adventurism on the part of Western powers. This
"list goes on" shit is particularly chilling to those who value peace, life,
and national solvency. What other functioning nations must be broken to feed
the military-industrial complex?

~~~
the-dude
> ill-advised adventurism on the part of Western powers

Let keep the picture clear: ill-advised by the USA. It was the USA who wanted
the conflicts and did everything in their power to 'persuade' their allies to
bomb along.

It was all lies and just see what we got in return.

~~~
jessaustin
You are correct about Iraq.

With respect to Libya, memories seem suspiciously short. For a long time Obama
was uninterested in Libyan regime change. (I suspect because the generals were
so sure it would be easy, which set off alarm bells, but none of that was ever
made public.) For personal reasons that no one could discern, "French
celebrity philosopher" Bernard-Henri Lévy was rabidly pro-war, and lobbied
constantly for it. For reasons that probably make sense if one is French, both
the French public and Nicolas Sarkozy found his case convincing enough to take
the lead and let the USA "follow". (That lasted about a week, because France,
but whatever.)

~~~
the-dude
I stand corrected, my memory about Libya was hazy.

------
commentzorro
This is the Republican Dream. Shifting taxes to states then to localities and
finally to each group within the locality. As the nation moves farther and
farther to the right expect the to happen in every state and local agency out
there.

~~~
bionsuba
> As the nation moves farther and farther to the right

What country do you live in? Surely it can't be the US, who has been enacting
very leftist policies for a while now, who has had a leftist president for
almost eight years now, whose youth is advocating for a self-identified
"democratic socialist" for president, and the country where the most popular
republican candidate by far is a centrist RINO.

~~~
machinesofn
Who are you referring to? Trump and Carson are both pretty far right of center
(both are pursuing massively reduced taxes, and Trump takes an extreme (even
by GOP standards) view on preventing illegal immigration.

------
Your_Creator
John Oliver explains it pretty well:
[http://www.youtube.com/watch?v=3kEpZWGgJks](http://www.youtube.com/watch?v=3kEpZWGgJks)

------
alistproducer2
It's interesting that "conservatives" and "freedom loving people" become
pretty OK with tyrannical practices as long as they are practiced on some
undesirable group. "Don't tread on me" becomes "Don't tread on me, tread on
the brown people instead."

~~~
AnimalMuppet
Some do. I don't.

------
Dowwie
there was a recent discussion about this from Cato:
[http://www.cato.org/multimedia/daily-podcast/policing-
profit...](http://www.cato.org/multimedia/daily-podcast/policing-profit-
proceeds-apace)

here's the web site by the people who gave the talk (the paper is downloadable
from the right margin) [http://ij.org/report/policing-for-
profit/](http://ij.org/report/policing-for-profit/)

------
AC__
Democracy has been bastardized over the past 150+ years to the extent that
governments are now effectively nothing more than organized criminal
organizations. Police serve as the enforcing arm of these organizations.

~~~
Kristine1975
In the US 150+ years ago democracy meant "rule of white men." I'd say it has
improved in that regard.

------
Fezzik
Ugh, so much misinformation. Having lurked here for a while HN seems to think
civil forfeiture is the boogie man. To clarify a few things, at least on the
county level:

1) There are always drugs when property is seized this way. I review every
single civil forfeiture in a rather large county, and the affidavits officers
submit read something like: "I stopped Bob after an informant purchased a
large amount of heroin from Bob, Bob had syringes, heroin, weed, a scale for
weighing drugs etc... on his person, and a rolled up wade of bills". The money
is then seized as proceeds of prohibited conduct.

2) IT IS NOT DIFFICULT TO CONTEST A CIVIL FORFEITURE. The defendant is given a
single piece of paper, that is insanely easy to understand, and simply has to
sign the paper saying the forfeited property is not proceeds of a crime. They
then have to appear in court, before a judge, and demonstrate this fact. The
bar is not high, but I have never once seen this happen.

3) The money does not all go directly to the seizing agency. Much of it goes
towards drugs programs, oversight for civil forfeitures, and other programs.
See, for example:
[http://www.oregonlaws.org/ors/131A.360](http://www.oregonlaws.org/ors/131A.360)

Perhaps at the federal level things work very differently and the process is
abused, but every time I see these articles it really feels like an anomaly of
a story is used to paint an entire program as being demonic, with little to no
data to back up the conclusion.

edited for clarity, the statutory language is "prohibited conduct" not
"criminal activity"

~~~
MCRed
> There are always drugs when property is seized this way.

Nope. Several years ago the FBI stole $6M in Platinum, Gold and Silver. Some
of the theft was of protected political speech-- literally copper & silver
pieces with Ron Paul's picture and a campaign slogan on them. No allegations
of drugs was involved, and the criminality claim -- that using gold and silver
as barter threatened to undermine the US dollar -- was absurd on its face.

> IT IS NOT DIFFICULT TO CONTEST A CIVIL FORFEITURE.

BS. The $6M in precious metals was melted down (reducing its value actually)
and sold off to the profit of the FBI, despite a very large and expensive
legal effort to try and reclaim the money. The owners of the assets were never
convicted of a crime.

> The money does not all go directly to the seizing agency. Much of it goes
> towards drugs programs, oversight for civil forfeitures, and other programs.

IT's still theft.

~~~
rayiner
Minting your own gold currency is illegal:
[http://codes.lp.findlaw.com/uscode/18/I/25/486](http://codes.lp.findlaw.com/uscode/18/I/25/486).

~~~
jessaustin
How is that relevant to this case? In a way that wouldn't also indict e.g.
[http://www.americanmint.com/](http://www.americanmint.com/)?

------
entropyneur
> With government unable to pay police as much as they need or would like,
> police are confiscating their revenue directly from the populace.

Where does the author think the funding comes from in the normal situation?
It's confiscated from the populace just the same. What is this elusive
property of the government that makes it not a self-funding gang which is not
present in any part of the government (e.g. police in this case) but present
in the whole?

~~~
imron
From taxes, which although complex, are still well publicized and listed and
it's easy to know how much you need to pay and when. You also (generally) pay
these based on your income level.

That's completely different from have arbitrary amounts of cash confiscated
from you at arbitrary times.

~~~
ndespres
I think you're responding to an anti-government troll who is being
deliberately obtuse about the difference between civil asset forfeiture vs tax
collection. Unfortunately statements like theirs muddy the waters between
something that most sane people find acceptable (government tax collection) vs
something that most sane people find abhorrent once they know about it.

~~~
purespark2
I think the question is legitimate. Why are sane people okay with having their
property rights violated by taxation but not by confiscation?

~~~
merpnderp
Taxation in a democracy is inherently legitimate. And the reasoning behind it
is explained clearly in Rousseau's Social Contract, although the idea goes
back centuries. Simply stated, if you decide to continue living in a society,
then you implicitly agree to abide by its rules. In most countries, the
agreement means paying taxes set by elected representatives.

~~~
geggam
The US is a Republic not a Democracy.

~~~
the_why_of_y
The constitution says the US is both a Republic and a Democracy.

~~~
geggam
Declaration of Independence and our constitution do not even mentioned the
word "democracy".

~~~
the_why_of_y
Let's see... neither the Constitution nor the Declaration of Independence
explicitly use the word "republic" for the United States as a whole, so you
should perhaps reconsider that argument.

Constitution, Article 1, Section 2, and Section 3, in their first paragraphs
clearly define the legislative branch as a representative democracy.

