"Really, it’s hard not to wonder whether some current civil forfeiture practices represent much less than a revival of
the archaic common-law deodand. The deodand required the forfeiture of any object responsible for a death—say, a
knife, cart, or horse—to the Crown. Today, the idea seems much the same even if the practice now sweeps more broadly, requiring almost any object involved in almost any serious offense to be surrendered to the government in amends.
The hardships deodands often imposed seem more than faintly familiar, too. Deodands required forfeiture regardless of the fault of the owner, himself sometimes the deceased. Not infrequently, the practice left impoverished families without the means to support themselves, faced not only with the loss of a loved one but also with the loss of a horse or perhaps a cart essential to their livelihoods. Sometimes grieving families could persuade authorities or
juries to forgo a deodand, but often not, and generally the burden to avoid a deodand was on them.
As time went on, too, curiously familiar financial incentives wormed their way into the system. Originally, the Crown was supposed to pass the deodand (literally, a thing given to God) onto the church 'as an expiation for the sou[l]'
of the deceased. Over time, though, the Crown increasingly chose instead to sell off its rights to deodands to local lords and others. These recipients inevitably wound up with a strong interest in the perpetuation of the enterprise. Ultimately, the deodand’s appeal faded in England, and this Court has held that it 'did not become part of the common-law tradition of this country.' But has something not wholly unlike it gradually reemerged in our own lifetimes? [1]"
Isn’t the FedEx hub private property? What are the police even doing there? Did FedEx cut a deal with the police that they could hang out there and steal shit?
We'll assume for a second this was purely state to state (ie no customs involved) since that seems to be the case.
Even then, they generally don't get involved unless a package smells funny, is leaking, or making noise.
But if it does, it may get opened or dog sniffed or inspected (fedex itself generally does not open packages, they would set them aside. Chain of custody and all that. While they probably reserve the right to open whatever, the in-practice exceptions mostly about trying to find a receiver when the label/other identifying info is destroyed somehow.).
There are also some amount of random checks.
But to put this in perspective (and again, i think civil forfeiture is nutso), thi is is a fedex site that processes about 100k packages an hour.
The state seized 134 packages in the past year.
If they were inspecting any meaningful percent of packages, this would probably be 100x greater.
Sure. But Indy processes an amazing amount. Assume it’s 10k/hour or even 1000/hour average over the year and it doesn’t change the point.
At 1000/hour it means they did 9 million packages a year and seized .001 percent of them (think I got that right, on my phone)
FedEx does 15 million packages a day (2.8 billion a year) overall and this is the second largest hub. So the number is probably much closer to 100k an hour than 1000/hour.
Cash transactions over 10k are also reported to FinCEN via Currency Transaction Reports [0]
> Also, having $50k on you with a bank receipt is generally a non-issue.
You have personal experience? The whole issue of Asset Forfeiture surrounds non-drug-dealing persons regularly having their cash seized under the assumption that they must be drug dealers while skipping the inconvenient step of pressing charges.
"A 2020 study found that the median cash forfeiture in 21 states which track such data was $1,300."[2]
For civil asset forfeiture the whole premise is that you can't prove the money is your's. If you have proof the money is yours and came from a bank, that invalidates the basis.
Just because you have proof the money is yours doesn't mean they won't take your money.
>...On his drive from Texas to California, a Nevada Highway Patrol officer engineered a reason to pull him over, saying that he passed too closely to a tanker truck. The officer who pulled Stephen over complimented his driving but nevertheless prolonged the stop and asked a series of questions about Stephen’s life and travels. Stephen told the officer that his life savings was in the trunk. Another group of officers arrived, and Stephen gave them permission to search his car. They found a backpack with Stephen’s money, just where he said it would be, along with receipts showing all his bank withdrawals. After a debate amongst the officers, which was recorded on body camera footage, they decided to seize his life savings.
Well they must really believe they have a strong case then, right?
>...So Stephen teamed up with the Institute for Justice to get his money back. It was only after IJ brought a lawsuit against the DEA to return Stephen’s money, and his story garnered national press attention, that the federal government agreed to return his money. In fact, they did so just a day after he filed his lawsuit, showing that they had no basis to hold it.
Nope, I guess they knew they didn't have a case. To recap: They engineer a fake reason for a traffic stop treating cars as a potential lottery ticket with a big payoff. They take the money even though they know they shouldn't. They circumvent Nevada law by handing the money to the DEA so they could get a kickback, hoping he won't be able to now afford a lawyer since they took his life savings. The minute he shows he has a powerful legal team looking into the case, they hand back the money.
>For civil asset forfeiture the whole premise is that you can't prove the money is your's.
Also, one has to wonder why the basic principle of the state having to prove guilt needs to be upended with civil asset forfeiture. If you are alleged to have murdered someone you are assumed innocent, but for civil asset forfeiture you are assumed guilty?
"Also, one has to wonder why the basic principle of the state having to prove guilt needs to be upended with civil asset forfeiture. If you are alleged to have murdered someone you are assumed innocent, but for civil asset forfeiture you are assumed guilty?"
This is civil vs criminal law. In civil cases you do not have the right to an attorney and hearing can be ex parte. The burden of proof is only more likely than not. So you have one-sided cases with no representation for the asset. These same lack of protections are being exploited for things like red flag laws, proposed abortion laws, etc. It's the same sloppy paradigm - too much work to do things under criminal law due to pesky rights, so just move it to the civil side.
You need to show the cash came from a legitimate source if you’re transporting it. (Not okay, but it is what it is)
Coming directly out of a bank (and hence tracked by the gov’t already) is a legitimate source.
If you have a receipt showing you just withdrew it from a bank account, even if they’re stupid enough to seize it, the court is going to give it right back to you - along with a civil settlement.
> If you have a receipt showing you just withdrew it from a bank account, even if they’re stupid enough to seize it, the court is going to give it right back to you - along with a civil settlement.
This isn't true. You'll probably get the money back, but it will take a couple months and cost a couple thousand in attorney's fees (which the courts will not reimburse)
Unless you get a lot of press, and/or have someone like the Institute for Justice fighting on your behalf, that's not a given.
There's a playbook that local/state and federal agencies have.
If a local/state agency seizes your cash, then they can just kick it up to the feds. Then any suit you file will have to be against the federal government. This increases your costs and difficulty.
The local/state agency is fine with this, because they have an agreement (see "Equitable Sharing"[1]) to get 80% of the money back.
Maybe, but they’d need a really high bar if you had the paperwork with you to not have to pay out. It’s true though that it would require some fighting. But that’s true of any cop misbehavior, unfortunately.
Civil penalties for this behavior means if you prevail (and it’s an egregious case), you can more than make up for it. Many attorneys will take such cases on contingency, as the odds are pretty good.
That’s because the moment someone lawyers up and appears to have a case, they give the funds back to avoid creating bad precedent. So it doesn’t go to court.
The best trick is the court case will not be against you, it will be against the money itself, as in "State of Indiana vs. $50,000". Your money has no rights, so it gets no public defender nor any other rights.
And plenty of attorneys would take a case like that on contingency if you would present even halfway decently in court, and win - and get you a nice payout on top of it.
Since they can say ‘Your honor, the prosecution can not identify any articulable factual basis, or even concrete suspicion as to why they should have seized my clients money. The money my client just withdrew from the bank that he earned lawfully, paid taxes on, was held in a regulated institution, and that he intended to use for lawful purposes.
In fact, as is clear from opposing councils arguments, they not only didn’t even attempt to investigate to discover if a lawful basis existed to seize my clients funds, they actively ignored documentation that my client attempted to provide them showing the funds were from a legal source.
Additionally, it’s clear they have since been unable to identify any lawful reason besides a generic ‘my training and experience says this was okay’, and in fact are not even able to identify which parts of their training and experience support it, even with x months of time.
This is in violation of the federal rules around these seizures (cut and paste the sections), and their own policies (cut-n-paste from their policy book).
Additionally, that they persist in not only defending these tactics, but continuing to keep my law abiding clients funds, shows a complete and continuing disregard for the law, my clients rights as a law abiding citizen of this great nation, their own policies, and the integrity of this court. ’
If they still persisted (historically they haven’t, even in far more ambiguous cases), I can’t imagine a judge being unsympathetic to punitive damages (3x) on top of everything else.
It wouldn’t be hard to make an argument that literal criminal gangs are less dangerous to society than a police agency acting that way in such a case.
"In April, police inspectors at the Indianapolis FedEx distribution center seized a box containing nearly $43,000 in cash. Even though no criminal charges have been filed in connection with the package, it’s been in the government’s possession for about four months. "
and
"In court documents, the Marion County prosecutor’s office wrote that shipments of bulk cash are typically associated with criminal activity. Even though Indianapolis Metropolitan Police Department dogs alerted handlers to the smell of drugs in the box, no contraband could be found once it was opened."
It happens, and the cops just lie to courts, and they get away with it. They especially get away with it when they steal from the sorts of people who do not have easy access to lawyers, and who are not in a position to have tens of thousands of dollars tied up for months or years while cops lie to judges.
It generally doesn't matter what evidence you have about the cash on you, it won't stop US law enforcement seizing it from you through Civil Asset Forfeiture.
There's been plenty already provided in the thread.
Plenty of cases where random traffic stops and airport "additional screening" checks have resulted in cash being seized, even when someone has sufficient evidence that they withdrew it from a bank.
In Civil Asset Forfeiture cases the burden of proof is reversed (i.e the cash is presumed guilty).
Simply having a bank receipt doesn't prove innocence of the cash, and the law enforcement officers who seize it will just do so and claim that you were about to do something criminal with it.
It's on you to prove - in court, by filing a lawsuit - how you came by it, how it was to be used in legitimate activity. Even then, if you 100% prevail, you're still liable for all of your costs for doing this.
If you had to file a Federal case (because local/state authorities can, and will, send it to some federal agency and get 80% of it back in a sharing-arrangement) then your costs for getting your money back are increased even further.
The police steal it because they can. As things progress down this route, the police will soon be doing more things just because they can. Already they've been seizing cars in Florida from people who haven't even been charged with anything. The way things are going, soon the police will start holding people hostage without charges, asking for ransom from the person's bank account. Since the President and the Supreme Court both don't care, there is no limit here to how far the police can go.
Why has this never been found unconstitutional by the Supreme Court? Have they ever ruled on civil forfeiture? That sounds like the opposite of constitutional, it's assuming that someone is committing a crime without any evidence.
IANAL, but they have ruled many times on Civil Forfeiture The TL;DR:
1. If property is confiscated as part of punishment for a crime (e.g. places that make you forfeit your car if you get a DUI), then it is subject to the 8th amendment.
2. If the property itself is suspected of being a criminal tool (e.g. money earned illegally), then it is not.
3. Since in #2, it is a civil case against property (rather than a criminal case against a person), the property has no right to an attorney, and the burden of proof is merely "preponderance of the evidence" (i.e. neither side is privileged for evidence). There are also other more lenient due-process rules compared to a criminal case.
So, for example, in a criminal case if the government's entire case is "this looks suspicious" then the defense can be "you haven't proved anything" but in a civil case, the defense would have to offer enough evidence to outweigh the suspicion. And since there is no right to representation, the defendant has to find and pay for their own lawyer.
That is ridiculous. The idea that you can go after someone’s possessions to avoid due process is bonkers. The whole idea of civil forfeiture is archaic and should be inconceivable in a country presumably ruled by law, with its completely arbitrary character and unaccountable enforcers.
There is due process. It's just not the same standard as a criminal case. Usually it starts with the prosecutor mailing out a letter, which if you miss it means you're screwed.
> Working with the Institute for Justice[1], a nonprofit focused on civil liberties, Henry Minh alleges a widespread pattern of unlawful package seizures at Indy’s FedEx processing facility.
The IJ does some amazing work. Highly recommend supporting them if their mission resonates with you. I always find something refreshing and uplifting in the bimonthly print magazine.
EDIT: I cannot reply to metabagel's comment (due to it being flagged?) about IJ being "right wing" but here is a smattering of recent cases[2]:
New petition asks Supreme Court to let woman’s suit against her abuser’s enabler move forward after nearly a decade in court.https://ij.org/case/martinez-v-high/
> The IJ does some amazing work. Highly recommend supporting them if their mission resonates with you.
Agreed. IJ (Institute for Justice) [0] and FIRE (Foundation for Individual Rights and Expression) [1] are my two favorite organizations when it comes to doing the hard work to protect our constitutional rights as Americans!
I respect some of the attorneys working for FIRE quite a lot. They have some great achievements. But I can't support the organization as a whole because their non-legal work is a bunch of nonsense.
Their initial statement on pro-Palestine protests was disgraceful.
Their ranking of best colleges in the country for free speech are completely wrong (and just happen to align with the political views of their big donors).
For example one factor is how many newspaper articles get written about issues with free speech at a school. Tiny private colleges that explicitly say they don't support free speech do great on this metric.
University of Virginia is championed by them as the best school in the country for free speech, which simply isn't true.
They’re a right wing organization, so just bear in mind they are most concerned about property rights and the right to participate in the free market without burdensome regulation.
Why is this downvoted and flagged? I didn’t say they are extreme right, but they clearly support conservative causes, including school vouchers. Am I wrong?
They oppose government licensing. They stand up for the little guy against the government, but not against big corporations.
I’m just saying, be aware what their agenda is before you sign on.
And yes, in this case I absolutely agree with them. But, I wouldn’t support a lot of what they do.
"Our mission is to end widespread abuses of government power ..."
"IJ is the national civil liberties law firm that represents everyday people—free of charge—when the government violates their most important constitutional rights. ..."
The fact that they choose to deal with government abuse of power and not corporate abuse of power seems totally reasonable and unrelated to left or right or whatever. I would not call them right wing simply because they have chosen to focus - all successful non-profit civil liberties law firms do this. Anything else is insane/impossible.
I'm not sure why you are choosing to paint them with a left or right brush here, when it seems mainly complaining that their mission doesn't match what you seem to want.
Most of the civil rights orgs that spend time dealing with corporate abuse of power either ignore or don't take government abuse of power cases.
I don't think that classifies them as "left wing" or "right wing" either. It's just pragmatic for what they can accomplish.
Evidence? I’ve interned at a larger one and learned a lot about the others along the way. So I’m basing this on experience. What are you basing this on?
> Freedom from having to go to school with non-white children (that's the root of the school choice dog whistle).
That’s such a bizarre take. You don’t think non-white parents want school choice too?
I’m black and I believe in school choice. My wife is an academic in the field of education and a former teacher, and she also believes in school choice (her perspective on this topic is very nuanced though). Growing up in the inner cities, I watched black parents, including my own, do just about everything possible (e.g., use the address of a family member who lives in a better area, ask their boss to allow the use of their address, get a short-term roommate arrangement in a better area, etc.) to try to get their children into better schools than the objectively terrible public schools we had in our neighborhoods. If anything, my very own upbringing and experience is the biggest reason I have to support school choice.
Why turn this into a divisive white versus the others narrative instead of working to have a good-faith understanding of the issue? How does that help anything?
They usually define themselves as a libertarian organization which seems a much more accurate way of describing them.
>...they clearly support conservative causes,
"Liberals" don't support ending qualified immunity? Reforming laws that prevent convicts from being able to get a job is a "conservative" cause? etc. It wouldn't surprise me that some people who consider themselves conservative would disagree with and other cases that some people who consider themselves liberal would disagree with.
On their web site they say "Our mission is to end widespread abuses of government power and secure the constitutional rights that allow all Americans to pursue their dreams."
> They’re a right wing organization, so just bear in mind they are most concerned about property rights and the right to participate in the free market without burdensome regulation.
That description sounds more libertarian than right or left.
There is no such thing as the Libertarian party at this time after RFK Jr decided to drop out in favor of joining Trump. It's all just simple Conservative right wing.
They are specifically civil-libertarians and not in fact “right wing.” The in fact do a ton of work on behalf of poor people to help ensure that justice is available regardless of your financial means.
Sure, but it's a narrow kind of justice in service of the type of society they would like to live in - one which doesn't happen to have any social safety net, public services, regulations, professional licensing, etc.
And again, I think it's great that they took this case, because it's egregious. But, I just don't support their broader agenda.
Fighting exclusionary zoning, corrupt uses of imminent domain, and abusive civil forfeiture are among the primary goals of the IJ. None of that undermines a safety net or public services. Historically in the US professional licensing has primarily existed to exclude immigrants and racial minorities from lucrative careers, and should be reformed as a moral imperative. This is not a right wing position.
Right wing populists do those things too; their disagreement is about how to administer those programs.
That’s part of what facilitated the political rotation where left and right populists formed the Unity Party (Trump, Kennedy, Gabbard, et al), while classic statists such as Cheney and Clinton allied into the Uniparty.
The test case for tanking this behaviour seems almost too easy to set up. Pick a series of organisations across the political spectrum. Think tanks, civil rights outfits, charities, et cetera. (Nothing explicitly partisan.) Overzealously document a donation to each, have them each confirm their acceptance in writing and then settle each donation in cash via FedEx.
(Round 2, donating to candidates via cash the cops steal, is more tricky to set up since you'd need separate donor-candidate pairs across the partisan spectrum to make it work well.)
There is no shortage of cases to fight. What this issue really needs is some big cases to go all the way to the Supreme Court and then to have the right precedent set. It boggles the mind how this has not happened yet, probably because the agencies involved would rather settle than go to the top and have their racket destroyed.
From what I understand what generally happens is that if you start fighting it (especially with help from some non-profit that would like to get some case law settled) they will quickly drop the suit and return the cash. At that point they say you no longer have standing. https://youtu.be/WmVFud7v2r4?t=1020
Say your cash has been out of your possession for 6 months, couldn't you make a case around loss of earnings or similar? Having a big chunk of cash tied up unexpectedly like that could cause serious cashflow issues in a small business.
Could an America where cash and it's movement was as sacred as speech be viable? My naive take is that people can carry large amounts of cash, mail it, burn it, who cares?
I use cash to do things I don't want traced to me, that's the point. Many communities live at the fringe or beyond of what society deems acceptable and cash is a great tool for those communities to do their thing.
Civil asset forfeiture is an attack on marginalized people.
This seems to represent a significant escalation in the use of civil forfeiture. Reminder: it is not a crime to possess or mail cash. In the case of using civil forfeiture against a driver pulled over while driving down a highway, the police will concoct a "totality of circumstances" narrative to explain why they thought the money was the proceeds of illegal activity. In the case of a package of cash being intercepted at FedEx, what other "circumstances" are there for them to concoct?
All big private shippers have a close relationship with police. USPS, since it's government owned, they have to have a warrant to open your packages. Private shippers just give permission. Don't ask me how things got so backwards, it makes no sense to me, I never gave UPS ownership of my property in transit, but somehow they can give permission outside legal procedure to search my property.
You ever wondered why, you can't ship cape products through USPS for example due to an executive order, but UPS and FedEx also won't let you do it? Did you know that they created that rule the same moment the executive order was signed, independently? Strange world we live in.
And the money in this case was probably drug money. Who else buys gold chains for cash in that amount and sends it in a box via FedEx? But, it should be the burden of the state to prove it, not seize it based on suspicion.
No, they should have placed the cash in a box and sent it via USPS Registered Mail.
Then it requires the feds themselves to interfere to open the package. Plus, Registered Mail has a full chain of custody as the item becomes a fully accountable item within the mail stream that is signed for at every single touch along the way.
You better have your $5 wrench available to get access though. It's not like they can just take the briefcase or duffel bag full of crypto away from you.
If you actually read the article, they weren't doing anything illegal... that's why IJ is giving them legal representation. The government would have a harder time seizing stablecoins because they couldn't say "well a K9 indicated there was drug residue on the bills" or whatever.
Civil forfeiture is the only way to recover funds from scammers overseas. They will never be in US court or if they are it will be many years later. Go on RECAP and you can constantly see multi million dollar seizures for business email compromise, investment scams, etc. If it was only seized at time of conviction there would be basically no justice for victims. Yes, I agree that the typical case (median forfeiture is only a few thousand dollars) has more elements of government overreach in it than we should be comfortable with. But I don't think the practice should be eliminated entirely.
Larger, sure, but it's not obvious to me the resources would be better spent on labor law violations than on egregious forfeitures? They're both pretty piecemeal, small-dollar fights that in aggregate take billions of dollars each out of people's pockets.
Mostly I was shocked/amused at the juxtaposition of apparent opinions. "Cops are abusing people? Well what about about the employers abusing people?" is just a weird stance to take?
> Mostly I was shocked/amused at the juxtaposition of apparent opinions. "Cops are abusing people? Well what about about the employers abusing people?" is just a weird stance to take?
Possibly. But focusing on a small target yet ignoring a large target then complaining "whataboutism" is a common tactic when harming the target, not the started goal, is the motive for action. Though in this case I don't suspect that your motive is to harm the police, your grey comment suggests that enough other people do.
Wage theft and civil forfeiture are both bad! And not so disproportionately so either, like $15b/yr to $3-7bn/yr. Which is why it’s so funny/weird/disingenuous to reply to “forfeiture should be illegal” with “wage theft is worse”. Why bring it up?
To be frank in the past we had the right idea with how to deal with highway robbers, hanging them, shooting them, or beheading them. We didn't give them the fucking blessing of the law!
In France it's simply not legal to send cash through the mail. We barely use cash anyway. Sorry to blame the victim and it's easy to say that now but they shouldn't send $43k via FedEx.
This is an important point, and something that HN should really take to heart. It's legal to buy and sell slaves in some parts of Libya, therefore slavery is good.
People are quick to forget that the morality of any given action should always be judged by its legality in any random jurisdiction.
It does have (very very narrow) legitimate purpose, which is problematic abandoned property. Like say your age-of-sail ship has illegal stuff discovered by the customs inspectors, and everyone you can track down insists it isn't theirs.
But that ends the moment someone says it's theirs, or there are records pointing to an owner who isn't actively hiding from you. This whole modern "prove where you got it from" bs is just theft.
CF forfeiture laws are in theory supposed to be used against contraband and related materials. Nobody* is going to claim a suitcase with 3 bricks of cocaine and $500k whose owner the police are very anxious to locate.
* Nobody with a clue. Petty criminals do sometimes turn up at police stations looking for lost property of this kind and are then surprised to be arrested.
It is indeed. I know there are not as many who lived through the great depression now, but really cannot blame those who don't trust the banks. Also feel like we get taxed way more than we should be with many things getting taxed multiple times... Going to stop before going full rant. Innocent until proven guilty, not the other way around...
> can be extremely hard to physically get to your savings money in a crisis
Having spare cash around is never a bad idea. But there are precious few timelines in which the banking system collapses so completely that savings are inaccessible for extended periods (or at all) but paper U.S. dollars continue to hold value.
No one expects it to hold 100% of value, but even 10% of say $50k could be very helpful to live through the few months of the turmoil. Or to get to that foreign real estate which people recommend buying in comments on HN.
Well it's one of the tail cases, so all things considered both local currency and foreign currencies are useful, each in it's own quality. So is a foreign currency in a foreign bank.
> it's one of the tail cases, so all things considered both local currency and foreign currencies are useful, each in it's own quality
Not really. If U.S. cash is useful, so are dollars in a bank. Not in the very short term. But over a timeline of more than a week.
Storing tens of thousands of dollars of cash for an emergency is stupid, because almost every emergency that takes out the banking system renders that currency worthless. You’re better off having hard supplies or forex you can trade for exfiltration.
> If U.S. cash is useful, so are dollars in a bank.
This is a strong assumption. So far I've experienced three cases of loosing access to my money in the bank for various reasons and I also witnessed one more case with my parents 25 years ago. In all four cases the cash was still useful, losing between 0% and 70% of the value.
None of that was in US of course, but I still think that your range of scenarios is too narrow.
If you want to prevent your cash from getting eaten by inflation, park it in an index fund, T-notes, etc.
If you want to have a reserve for a case when things go badly wrong, banks all go under, government can't bail them out, etc, then park some of your cash in yuan and rupee, in a piece of overseas realty, in gold bullion, and don't forget to invest in medical supplies, shells, and other such gear.
Different views of the future risks drive different decisions.
Should be unconstitutional. In fact I could have sworn there was this amendment specifically about seizures, and failing that, one about due process. If no crime has been committed and/or no charges have been filed or are going to be filed in a timely manner, then I fail to see on what basis the government gets to deprive someone of property.
Several members of the US Supreme Court have already expressed strong skepticism about the Constitutionality of this practice but other parts of the government are very good at ensuring no case ever arrives there for it to be adjudicated.
There is a parallel situation with the No Fly List, which is clearly unconstitutional in many cases but the Federal government is adroit at making sure no case with standing makes it to the USSC to be adjudicated, lest they lose this particular weapon.
The language is from Culley, which was decided last year [1]. I haven't seen any evidence that anyone is deflecting cases. Just that our judicial system is slow.
when someone has a strong enough case and means, you take the loss at the trial level (or before by dropping the case). That way the case never makes it to the district or supreme courts that can actually create precedent.
How long will it take the Federal Circuit to overrule this inexplicable nonsense? The novice reader may find that question to be ignorant, since the Supreme Court is the highest court of the United States. Those well acquainted with the industry know that the Supreme Court is not the final word on patentability, and while the claims at issue in this particular case are unfortunately lost, the Federal Circuit will work to moderate (and eventually overturn) this embarrassing display by the Supreme Court. This will eventually be accomplished the same as it was after the Supreme Court definitively ruled software is not patentable in Gottschalk v. Benson, and the same as the ruling in KSR v. Teleflex will be overruled. I have taken issue with Chief Judge Rader’s statements that nothing has changed in Federal Circuit jurisprudence as a result of KSR, which is not technically true. What is true, however, is that the Federal Circuit continues to refine the KSR “common sense test,” narrowing the applicability in case after case and tightening the ability for “common sense” to be used against an application. We are almost 5 years post KSR and there is still a lot of work left to be done by the Federal Circuit to finally overrule the Supreme Court’s KSR decision. It took almost 10 years to overrule Gottschalk v. Benson, so we are likely in for a decade of work to moderate the nonsense thrust upon the industry this morning.
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 think it becomes more clear if we call it by its more traditional name, “robbery.” Unless it is at something like a traffic stop where it is done using the implied or explicit threat of force by a police officer — in which case, it is called “armed robbery.”
Check out the film "Rebel Ridge" on Netflix if you haven't seen it. Complete fiction but the story is kicked off / revolves around civi forfeiture (and it's a pretty good watch!)
By the way, there is an excellent film called Rebel Ridge now on Netflix where the basic premise is about small town police abusing the practice of civil asset forfeiture.
If that comforts you (I know it doesn't) Swiss police can take any money claiming it touched cocaine so it was maaayyyybe used in trafficking. Stats say about 90% of banknotes qualify so it's a sure shot for them. Even if you're cleared of the accusations, they will STILL keep your money.
It's been recommending that movie to me, and it looks excellent, but I know if I watch it it's gonna end up with me throwing the TV out the window out of rage.
I know it's just a figure of speech, but I'd also like to add a reminder if someone needs to see it: channeling that same rage into investing time and effort into making a change is the very reason why such an enraging show is made and why it should be watched. Just raging into the wind is pointless, specially after choosing not to invest anything into making a change
If this were the case, would someone not have challenged it in court by now? If the dogs and their handlers were challenged in a controlled trial and shown to be biased, that would make for a useful test case.
"Handlers were falsely told that two conditions contained a paper marking scent location (human influence). Two conditions contained decoy scents (food/toy) to encourage dog interest in a false location (dog influence). Conditions were (1) control; (2) paper marker; (3) decoy scent; and (4) paper marker at decoy scent. No conditions contained drug or explosive scent; any alerting response was incorrect. A repeated measures analysis of variance was used with search condition as the independent variable and number of alerts as the dependent variable. Additional nonparametric tests compared human and dog influence. There were 225 incorrect responses, with no differences in mean responses across conditions"
"To test this, we influenced handler beliefs and evaluated subsequent handler/dog team performance according to handler-identified alerts. The overwhelming number of incorrect alerts identified across conditions confirms that handler beliefs affect performance."
The FBI spent 4 decades grossly lying about their ability to analyze hair. Think about that. The charade actually went on so long that some people would have lived their entire adult life, their entire career lying their asses off. It was later found that at least 90% of cases contained errors.
During this time someone could have similarly proved that it wasn't so because were it so surely someone could have challenged it.
An alternative explanation is that forensic science or indeed any sort of science as practiced by law enforcement has always been a joke and the bar to do something about it is always very very high.
The cost of challenging anything is often prohibitively expensive both in terms of legal costs and in risk of drawing a sentence several times worse than a plea and any case which might result in police losing a valuable tool can be mooted by simply dropping that particular case after that high bar is met.
Remember also that the prosecution and the judge aren't scientists but ARE colleagues. Perceptively evidence from dogs are brought only when they actually find something so even if they don't provably always "work" in the scientific sense they perceptively help them nail bad guys. The idea that the judge would be liable to remove that useful tool because it didn't pass scientific muster is both optimistic and naive.
Police science is a parallel world of non-science. Over and over, fake science like hair id, bite mark analysis, fire, shaken baby, excited delirium, and others are debunked. But the courts have been terribly uninterested in hearing science contradict police-science.
To be clear: courts have their own way of deciding disputes, and that process has distinct differences from the scientific model. E.g. stare decisis is actively hostile to new evidence; appeals may not reference new evidence; police practices are given deference as experts in their own magisterium, and may not be held to normal scientific practice; and others.
To do that, dog should be handled by someone who is not their regular police handler. Then they would claim he doesn't know how to handle the dog properly, or doesn't have the required "soul bond" with the animal. Can't win against crooks.
> To do that, dog should be handled by someone who is not their regular police handler.
Not necessarily if the experiment is double blind. (Or tripple blind I guess because it is the dog, the handler and the on-site experimenter who are not aware of where the samples are hidden.)
I hadn't heard of this before, but here are some sources. Note this quote from [2], U.S. Customs and Border Protection:
"Canines are taught to detect concealed U.S. currency and firearms. Both the Officer/Agent and canine are taught the proper search sequences when searching vehicles, aircraft, freight, luggage, mail, passengers and premises."
I have no idea what the ratio of scientific backing vs. security theater is, though.
> I have no idea what the ratio of scientific backing vs. security theater is, though.
Yes, dogs give you a convenient excuse to produce 'probable cause' in order to authorise a search whenever you feel like it, because the signs the dogs give are interpreted by their handlers.
Cannot find the story now but there was situation where they sentenced woman for drug possession ONLY because dog indicated so, but they found no drugs on her or in her car.
Do you happen to remember if she was sentenced because she was convicted by a jury? I have very little faith in the U.S. justice system so I guess that wouldn’t surprise me, but it feels likelier that they used the K9 “evidence” to coerce her into accepting a plea bargain (which, to be clear, is also bad).
During a three-week period, fishermen fooled the Nazis and police dogs who
searched their ships – lacing handkerchiefs with a mixture of rabbit blood and
cocaine, in order to fool the dogs.
That kind of seems like the mixture of rabbit blood and cocaine overwhelms other scents?
The government has always been a violent gang that steals people's labor and property by force, and says that's okay because they wrote on some pieces of paper that they are allowed to do that.
But when I point that out I'm the delusional extremist.
For what it's worth, I agree with you.
After all, none of us living in "democracies" were ever given a chance to vote about the legitimacy of the constitution, of the law codes, of the armed thugs, of the state itself...
I don't know that a system with no government or voluntarily funded common services and functions would be "better" than what we have, but civil forfeiture is not fundamentally different than taxation, from the perspective that OP viewed it. The government decides that is a legal way to raise revenue and they carry it out under threat of force.
You can disagree with civil forfeiture while agreeing with taxation, but not with general complaints about a state sanctioned violent gang stealing from the populace.
I'm certainly no fan of civil forfeiture but I eould argue that it's fundamentally different from taxation.
Taxes are impersonal. The rules apply to "everyone" [1]. They are written up, voted on (by congress) and so on.
Civil forfeiture is a random event made by a random cop on a targeted individual. It is the very definition of unfair.
Equally you can define taxation as "stealing" hut it's really not. (CF is stealing in my book). It was different in the past, but today taxation is used to pay for things - it doesn't just go to the bank account of a person.
-some- govt and govt services are necessary for society to function. (A quick look at places without govt demonstrate that.) And yes, one can argue about the priority of one service over another. But fundamentally govt serves the society and taxes is just the way that gets paid for.
The scale, priorities, spending of govt is obviously up for debate, but funding it is necessary, and so I don't consider taxes to be theft.
Incidentally, if you feel that all govt is bad and we should exist without one I recommend trying to live in a place where the govt is non-functioning. Thats when you discover where all that spending goes and what it achieves.
[1] for some definition of "everyone" - the system has flaws.
The tragicomic aspect of civil forfeiture is that it rarely seems to be used to seize large and valuable assets used to commit low-level white-collar crimes. For instance, if a dirtbag landlord doesn't keep his property maintained, why not seize that?
It's hard to empathize with the people mailing that much cash. It's an inherently careless and risky thing to do, and mailing that much cash is very obviously (and ironically) done to avoid taxes and legitimate business transactions.
I couldn't agree more. I bet the guys doing this don't even get their shoes shined or a proper haircut. People who do things differently from us deserve to get railroaded by the system. Reminds me of a passage in an op-ed in the SF Chronicle several decades ago:
"It's hard to empathize with the people engaging in homosexuality. It's an inherently careless and risky thing to do, and meeting up in gay-friendly districts is very obviously (and ironically) done to avoid public decency orders and legitimate family formation."
A man ahead of his time, if you ask me. We need to ensure that those who fail to lick the boot hard enough should be separated from their tongues.
It’s actually pretty easy for me to empathize with them. FedEx is pretty reliable. It wouldn’t surprise me to hear that the biggest inherent risk in mailing cash was police stealing it.
"The practice allows law enforcement to confiscate property from people suspected of criminal activity, even if they haven’t been charged with an offense."
Suspected of criminal activity due to "money existing".
It should be a very simple procedure.
I have no issue with the seizure itself. What should come next is the police ask the person or business to explain it. They show an invoice / receipt, and the money is logged and returned promptly.
from wiki -> Victims often have "long legal struggles to get their money back".[35] One estimate was that only one percent of federally taken property is ever returned to their former owners.[43]
This is standard practice in basically every country. Try to cross a border with a pile of cash and see what happens. Police finds a box of cash in your car? You better explain where it came from and why you drive it around.
There is so much weird hate for the government in the comments, but please provide a single sane scenario where you need to send cash instead of a bank transfer that is not about avoiding laws/taxes.
There are NONE. You send the cash because you did something against the law.
So by all means, the police should keep the money until you simple prove the non-existing totally legit reason why you could not use a bank transfer. I understand the problem with this, but you don´t prove that you are innocent; but large amounts of cash are usually connected to crime and it is your job to explain why not.
> please provide a single sane scenario where you need to send cash instead of a bank transfer that is not about avoiding laws/taxes.
What if I really want this Chevy Suburban for $11,950 where the seller is strictly saying 'cash only'? Sure maybe buying that particular vehicle with a quarter million miles on it doesn't qualify as "sane", but it doesn't appear to be illegal.
> This is standard practice in basically every country.
The United States is NOT every country. We have a Constitution that makes this behavior unacceptable.
> So by all means, the police should keep the money until you simple prove the non-existing totally legit reason why you could not use a bank transfer. I understand the problem with this, but you don´t prove that you are innocent; but large amounts of cash are usually connected to crime and it is your job to explain why not.
Once again, I’m not sure where you’re from, but here in America, we’re innocent until proven guilty, and that’s a pretty big deal. Also, the burden of proof is on law enforcement to prove that a citizen is guilty of a crime, not on the citizen to prove that they’re innocent.
Legally, it’s entirely irrelevant that you or anyone in law enforcement believe it to be strange that someone is either carrying large amounts of cash or sending cash via mail—it’s perfectly legal behavior.
My grandma has never ever put a single dollar in the bank, because she doesn’t trust them. I don’t have her experience, but she should be able to do as she pleases with her cash without law enforcement treating her as a criminal just so they can steal her money. It’s that simple.
> large amounts of cash are usually connected to crime
According to whom? Most of us living in western (and purportedly freedom-respecting) countries are supposed to be innocent until proven guilty, not guilty until proven innocent.
It's undemocratic and frankly vile to openly support violation of our constitutional rights like this, instead of campaigning for laws to be changed if you disagree with them.
It is against FedEx policy to send cash. It is a violation of the shipping agreement. the declared value coverage does not cover cash or cash equivalents. If you have more questions regarding acceptance standards it is recommended that you visit a FedEx Express Ship Station ( where your local packages are sorted) and ask to speak to a “Senior Customer Service Associate” this person is a senior FedEx agent and can walk you through the finer points of more difficult to understand shipping scenarios.
I do not believe the civil forfeiture flow as is, is correct. And beyond that, having LE even know about the money... I don't know how that works.
Having said all that, sending cash through the mail just feels like a really obvious money laundering vector. You might claim that there's no distinction between that and, say, handing over a bunch of cash directly to a person, but in the world of money laundering each extra layer makes the operation safer!
I don't think that from this it follows that we should be opening envelopes all over, but there's a universe where the seller of jewelry is very aware that they are taken illicit cash, and in a a more just universe there's some sort of warrant.
I do not know how to square the privacy question with this, but I do like the idea of money laundering not being trivially doable.
> Having said all that, sending cash through the mail just feels like a really obvious money laundering vector.
This is a classic America debate - just because criminals do it doesn't mean the State should punish everyone else that does it. America is full of weirdos that want to do weird things and be left alone to do it without State interference. Since 2001 I feel like the "if you have nothing to hide..." argument has been given WAY too much credence. Feels like the American zeitgeist is turning against characters like Hunter S. or George Carlin and I feel like we used to celebrate this sort of gonzo, leave-me-the-fuck-alone ideology instead.
Flattening what I said to "if you have nothing to hide" is really dismissive.
I believe you have the right to privacy! I believe that searches should have warrants associated to them! The fact that a "drug sniffing dog" was how this package was opened feels like enough to just throw this out!
I do think there is a universe where this happened through a warrant, and that the warrant wasn't given out glibly, and where the seizure probably makes a hell of a lot of sense.
Context-free discussions on this are annoying because at one point the _extremely crucial distinction_ of judicial oversight through a warrant just gets completely lost despite it being _the load-bearing component_ to "not without a warrant"!
Right but we're having discourse right now and discourse contributes to the zeitgeist. Whether intentional or otherwise I interpret your comment on the side of blaming the victim - "well... it WAS suspicious what they were doing."
That language is being used to justify all sorts of unethical behavior by the police, often flagrantly unconstitutional, usually at minimum illegal, and almost always the times it's not obviously illegal, it should be (the laws should be changed).
I don't know if it's from lack of regular interaction from the police but I find a lot of people online are under the mistaken impression that the constitution or law is guarding the rights of people in the USA. Cops get away with violating the constitution and breaking the law multiple times every day - sometimes in ways the supreme court has allowed, such as by lying to you, or tricking you into thinking you have to voluntarily give up your rights. Combine that with a completely overwhelmed court system that leads to something like 90% of people taking plea deals, and the absurd concept of "mandated minimums" and sentencing requirements that judges blindly follow, and you've got a legal system that's nothing like what people represent online.
So I feel "well it's suspicious but of course they should get a warrant" is pro-surveillance state, not anti.
I had a family member in a truly messed up financial condition that resulted in me sending them $1000 in prepaid Visa cards.
Those were sent USPS priority, and I can surely tell you there was mild panic when they didn’t show up on time. I was concerned someone saw the contents on X-ray and decided they had nothing to lose by letting that envelope, um, slip through the cracks.
They eventually arrived, but it was a worrisome couple days.
To be clear, what I meant by "this" here was something like... imagine that law enforcement has pretty good "proof" that there are these transactions going on for money laundering purposes. What universe of facts gives law enforcement the right to seize a package en route? Is every package in FedEx equivalent to a diplomatic pouch? Can LE do it if they have testimony to the effect of "money is in this box"? Do they require more proof? Do they need to just grab people when it gets picked up by the guy?
This cash thing is messy enough, but the drug sniffing dogs at the FedEx distribution center is obviously _something_. Even if the dog was consistently finding drugs in packages (and not being an excuse to open a package), is that OK? Is that not? What if LE is X-Ray'ing packages for "safety" reasons, do they get carte blanche to search the package there?
You might be surprised how I'd land on most of these, I think privacy is pretty important and blanket searches are pretty BS! I kinda think drug sniffing dogs are bad!
Just holistically speaking, you'd probably find that "drug sniffing dogs should not be allowed at airports and FedEx shipping centers" would be extremely unpopular and also not an easy point to argue as a consequence of some fundamental constitutional rights. And then the dogs are there, so now the cops have a skeleton key.
So, at least in the US, the 4th amendment says that we are protected from search and seizure unless there is reasonable suspicion by way of probable cause that we have committed a crime, and then, the things to be searched and seized must be clearly identified beforehand. That sounds like a pretty reasonable standard to me.
That would mean, essentially, that they could not do anything at all with your packages unless they already have a reason to suspect you of a crime, and that even then, they have to have a reason to believe that a particular package is involved in said crime and even say beforehand what they expect to find in it.
Now, on to the specific scenario at hand. You might argue that that is too stringent, that no crime can ever be proven under that framework, and you may say it shouldn't preclude x rays and drug dogs and what not, I might even agree with you. But that as well as any other reasonable concept of justly handling suspicion precludes randomly opening peoples packages and keeping money by construing the simple presence of money as evidence that a crime maybe was committed and they get to keep it whether there was or wasn't a crime there. Even by the most lax framework of how to handle suspicion and searching property that is outrageous.
In this specific case, a drug sniffing dog was used to open the box. This isn't abstract, but a concrete thing that has happened, going down one of your hypotheticals.
To be clear, I'm against what has happened in this case! But I think you'll find plenty of judges who will sign off on the idea that sending $43k through FedEx in cash to buy jewelry is plenty suspicious. Way more than a broken tail light.
You might say "how did they know it was for a jewelry purchase", but now you're arguing that looking at the destination of the package is a search. Given how courts have treated probably cause in general, you're looking at an uphill argument.
The nefarious thing here of course is that its seized so now the sender theoretically needs to come forward and prove the contrary, somehow. So much for presumption of innocence!
There is an abstract argument to be made based on what the constitution says, but if everyone in power agrees that something means what it means (despite that not agreeing with... well, the actual meaning of the words), you kind of have to argue in that framework. And while civil forefeiture as a whole feels like a pretty big and juicy target for some argument, this very focused case doesn't fall apart that easily IMO.
If you are buying into reasonable suspicion as a means for law enforcement to do things, and you have the dogs, I don't know how you avoid that leading to "the money in the envelope here is seizable". This case is way less sympathetic than the usual "someone gets pulled over with cash in their car and it gets seized".
A search warrant has to specify exactly what is expected to be found and exactly where. If the police get a warrant to search your place because they believe you're manufacturing LSD and they find a dead body, that body cannot be used as evidence in prosecution.
So a drug sniffing dog alert being justification for a search, presumably they'd expect to find drugs upon opening the package. I think the same thing would apply here, they thought they found drugs, they didn't find drugs, so they can't do anything, let alone seize the property.
Lawyer here (but FWIW, i donate to IJ so, uh, not exactly on the government's side here):
Take what i'm about to say as a description of the process rather than any support for it :)
So, it's not quite that.
Here, they are claiming it because a dog "alerted" on the package, so they then claim it's related to criminal activity. regardless of whether they find actual drugs in it.
This part:
"Even though Indianapolis Metropolitan Police Department dogs alerted handlers to the smell of drugs in the box, no contraband could be found once it was opened."
The first part is why they were involved and allowed to seize it.
The second is mostly irrelevant, legally (whether it should be or not). You don't have to prove it contained drugs to prove it was proceeds of a crime or otherwise part of criminal activity. This part is actually right, whether it gets used in an insane fashion or not. This is civil and not criminal, so the standard is not "proof beyond a reasonable doubt".
They file a suit against the money itself. It ends up with a funny case title like "United States v. An Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls," or "United States v. Approximately 64,695 Pounds of Shark Fins"
(both real, but federal seizures. If a state seizes it, it's like State of Indiana v., and often less funny)
Even if the person is not charged with a crime, if they successfully argue the money itself is criminal proceeds or was involved in criminal activity, they can confiscate it.
So, it's not sending cash that enables them to seize it. It's whether the money is used in criminal activity. The thing that enables them to be involved is that the dog alerted to it.
Now, for as much bullshit as exists in dog alerts, in this case, fedex often goes through about 100k packages an hour in this site, and they have seized 100 of them in the past year.
That's a really really small percent of the packages.
> Now, for as much bullshit as exists in dog alerts, in this case, fedex often goes through about 100k packages an hour in this site, and they have seized 100 of them in the past year.
Such a vanishingly small percentage that it suggests some sort of parallel construction. Surely the dog (and handler) aren't just standing there all year waiting to hit on a package..
Doubtful - for the simple reason that fedex has cameras everywhere, and unlike the police and bodycam footage, they have no dog in this fight, so they aren't going to mysteriously lose the footage.
So my guess - they set aside the very small percent of very funny smelling or leaking or ... packages (since lots of packages never see human hands, it would be a very small percent anyway) and then the police dogs sniff them.
If i remember, i'll see if i can find some earlier docketed cases and see if they describe whether they have police there all the time or not.
I honestly would not be shocked.
I live near a mcmaster carr warehouse that is about a million square feet (one of their larger ones), and they have local k-9 police out front 24/7 just sitting in their car near the entrance to the facility (AFAICT - they have been there every time i have ever done will-call, and when i asked the guy, he said they were there 24/7)
It would not surprise me that fedex's indy hub (which is 2.4 million square feet, and more important than this mcmaster carr warehouse) had local police k-9 units around 24/7.
Last but definitely not least, the indy hub is, IIRC, at the indianapolis airport. In that case, there would definitely be k-9 units and local police just hanging around.
Not to be that guy but all packages are touched by human hands. Probably 3-4 people on average at each stop on a tracking status page, and that's assuming small items like flat envelopes and small boxes are grouped together into giant bags throughout the process.
Its been like that since the drug war. Any large amount of cash is seized whenever it is found and considered the procedes of criminal activities unless you can definitively prove that that exact pile of cash had zero involvement in any past crime or future crime.
> These attempts at limiting the content of the mail were upheld by the Supreme Court, but in the 20th century, the Court took a more assertive approach in striking down postal laws which limited free expression, particularly as it related to political materials.[7][8] The First Amendment thus provided a check on the Postal Power.
And SCOTUS these days also tends to equate cash as a form of political speech. Of course mailing cash is a bit different than mailing political materials but you could make the case that it’s part of a political organizing campaign or payment for political materials. And mailing cash itself through the USPS is actually perfectly legal as long as it’s for a legal purpose.
> how that wasn’t in effect the ruling in citizens united?
Donating to a candidate or sponsoring an ad that says things about a candidate are protected political speech, requiring a strict standard for the Congress to regulate. Citizens reasoned that if that’s true individually it should be true for a group, on the basis—in part—of freedom of assembly, whether that be an advocacy group or corporation.
Money = speech is a colloquial but wrong summary. Money donated to a candidate or used to buy speech is protected, whether done individually or as a group. The simplest resolution is to read the opinion.
(Logically speaking, it makes sense. It’s just absurd to construct the freedom of assembly as automatically making all rights natural persons enjoy commutative.)
Not sure why you’re being downvoted. It’s one thing for it to be against policy and FedEx to be seizing it (which itself would unlikely to be a legal action vs returning it and fining the recipient), a totally different matter for the police to be doing it.
Someone (I'm assuming it's only one person) must have gotten a downvote and now has spun up a bunch of new accounts to complain about bot armies and astroturfing.
Moreover, they're complaining that the tone here is too pro-police, despite what I see is a majority of comments being critical of asset forfeiture.
There's a usmc veteran that got pulled over with his life savings and ended up in a world of legal procedure over it. The people putting wads of cash into boxes and sending them by post are not those people. (He got it back, I hope they won't.)
This seems like a separate issue. FedEx rejecting it could be explained by this. FedEx reporting it to police could be explained by this. The police keeping it indefinitely is not explained by this.
The hardships deodands often imposed seem more than faintly familiar, too. Deodands required forfeiture regardless of the fault of the owner, himself sometimes the deceased. Not infrequently, the practice left impoverished families without the means to support themselves, faced not only with the loss of a loved one but also with the loss of a horse or perhaps a cart essential to their livelihoods. Sometimes grieving families could persuade authorities or juries to forgo a deodand, but often not, and generally the burden to avoid a deodand was on them.
As time went on, too, curiously familiar financial incentives wormed their way into the system. Originally, the Crown was supposed to pass the deodand (literally, a thing given to God) onto the church 'as an expiation for the sou[l]' of the deceased. Over time, though, the Crown increasingly chose instead to sell off its rights to deodands to local lords and others. These recipients inevitably wound up with a strong interest in the perpetuation of the enterprise. Ultimately, the deodand’s appeal faded in England, and this Court has held that it 'did not become part of the common-law tradition of this country.' But has something not wholly unlike it gradually reemerged in our own lifetimes? [1]"
[1] https://www.supremecourt.gov/opinions/23pdf/22-585_k5fm.pdf Gorsuch's concurrence, beginning on page 18