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The legal rationale is the one for civil forfeiture. Namely they sue the possession, not you. The possession has no rights. And you have no standing in said lawsuit unless you survive an uphill battle to prove that you actually owned the possession in question.

Ever tried to prove that you really own the money in your wallet?




Federal Reserve Notes are bearer instruments. If my wallet has any indication of who owns it, the presumption is that the owner of the wallet is the bearer.

If you really want to get hairy, put the cash in an unmarked envelope and put it on the front seat of a car owned by someone other than the driver. Now prove who owns it.


Many, many forfeiture cases demonstrate that the reasonable presumption is not actually made by our system. For example many look like, "Person tries to board a plane. TSA finds money on person, seizes it, sues the money with no case made against the person."


> Many, many forfeiture cases demonstrate that the reasonable presumption is not actually made by our system. For example many look like, "Person tries to board a plane. TSA finds money on person, seizes it, sues the money with no case made against the person."

The structure of asset forfeiture laws requires that the action be formally against the property. They also require both specific notice of people with specified relations to the property which indicate probable ownership, and public notice, so that any persons with ownership interests in the property can intervene in the action and have the opportunity to contest the governments claims against the property.


Yes, yes. I know the legal fiction. You can find it well-described at https://www.law.cornell.edu/wex/forfeiture.

But my description of how it actually happens is still valid. See https://www.washingtonpost.com/news/wonk/wp/2015/06/30/why-t... for a recent case where exactly this happened. And it links to 3 other cases where money was seized from travelers, with no criminal charge ever being filed against anyone. In all 4 of these cases a person tried to board a plane, TSA finds money, seizes it, sues the money, and no case is made against the person. In none of the cases did the person get said money back. (The main conflict over where it goes in most cases is that a couple of dozen different government agencies argue about how to divide it up.)

The most unusual trait connecting these cases is that there was publicity about it. It happens so often that reporters usually don't bother to write about them.

The problem is that legal standard is that the government merely has to establish "reasonable suspicion that there was a crime", while the person has to establish "a preponderance of evidence that there was not". This reverses "innocent until proven guilty." How do you establish a preponderance of evidence that no crime happened when no specific crime was ever alleged? It is effectively impossible.

This story from a year ago on the front page establishes the shift in standards quite well: http://www.economist.com/blogs/democracyinamerica/2014/02/ci.... A quick summary is that a couple was indicted of a crime and successfully defended themselves. In the process the government seized a home through civil forfeiture, and the forfeiture stood because the couple was unable to prove that the crime did not happen.

(Unlike the cases that I'm describing above, in this case a specific crime was alleged. Normally the TSA just claims something like, "there was a smell of marijuana" and you have no way to prove that there wasn't.)


> And it links to 3 other cases where money was seized from travelers, with no criminal charge ever being filed against anyone.

If the people from whom the property was seized were denied (or not notified of) their rights to contest the forfeiture action, that would be something to be upset about. I don't see why we should be upset that the government took civil action without filing criminal charges; the civil burden of proof is lower than the criminal burden of proof because things like imprisonment, execution, loss of voting rights, etc., aren't on the table with similar actions; consequently, the level of evidence with which it makes sense to initiate criminal process is different than that for which it makes sense to initiate civil process.

> The problem is that legal standard is that the government merely has to establish "reasonable suspicion that there was a crime", while the person has to establish "a preponderance of evidence that there was not".

The initial seizure proceeds based on reasonable suspicion, but the goverinnment has the burden of proof to show, by preponderance of the evidence, that the seized property is subject to forfeiture under the law.

(The owner may have the burden of proof for defenses that apply to prevent forfeiture of property that is otherwise subject to forfeiture, such as the "innocent owner" defense, where the property was subject to forfeiture because of its relation to a prohibited act, but the owner was uninvolved in the act.)

> A quick summary is that a couple was indicted of a crime and successfully defended themselves. In the process the government seized a home through civil forfeiture, and the forfeiture stood because the couple was unable to prove the crime did not happen.

Er, no. What that source reports on is not that at all. It reports on the couple being indicted of a crime, and, as a consequence of the indictment, property that would (according to the government) be forfeitable under criminal forfeiture (which has the criminal burden of proof) being seized so that it would be preserved. The couple, arguing that the seizure order was overly broad, sought a hearing on whether the seizure was in error, arguing that the broad seizure impaired their right to counsel of their choosing for the criminal trial; this is what the Supreme Court turned down.

This isn't a case about civil forfeiture (the original seizure was to protect civil forfeiture, but the appeal was about the broader seizure under the superceding indictment which was to protect assets targeted for criminal forfeiture), it doesn't address a target acquitted of a crime and where forfeiture still occurred (this does happen in civil forfeiture, but this isn't an example), and it doesn't have anything to do with the owner not being able to prove a crime didn't happen.


First, the reason to be concerned about civil forfeiture is well stated at http://uclawreview.org/2014/04/29/criminal-forfeiture-is-tak.... The problem is that we introduced it for a specific purpose, and over time the laws have been used expansively and creatively against an ever growing category of people and businesses many of which bear no obvious relationship to organized crime.

I believe that this long ago crossed the line to being actually used as civil rights abuse.

On this case, you're mostly right. The seizure happened under civil forfeiture law, a the second paragraph of The Economist article makes that clear. So this really is a question about civil forfeiture law. But it is tied to a potential criminal civil forfeiture.


> The seizure happened under civil forfeiture law, a the second paragraph of The Economist article makes that clear.

The initial seizure happened because property was targetted for civil forfeiture, the expanded seizure happened because property was targetted for criminal forfeiture, the request for a pre-trial hearing (which was denied leading to the series of appeals that ultimately reached the Supreme Court) was for a challenge to the criminal forfeiture action.

The question addressed in the Supreme Court case was about criminal, not civil forfeiture.




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