Saturday, January 17, 2015

Killing Civil Asset Forfeiture



While I do not often applaud what comes from within this administration, this is one worth giving positive comment on.  While the actual effects are uncertain considering transfer of military grade hardware to local police departments accelerated after Ferguson, I reserve my right to change my mind.... but for now, this is a good thing.



Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without warrants or criminal charges.

Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.

The rest of the article here:  http://www.washingtonpost.com/investigations/holder-ends-seized-asset-sharing-process-that-split-billions-with-local-state-police/2015/01/16/0e7ca058-99d4-11e4-bcfb-059ec7a93ddc_story.html?hpid=z1

5 comments:

  1. "Public Nuisance" Criminal Ordinance: Denver Colorado makes various "public nuisances" into a crime for which a person can be fined or jailed, and his property confiscated. According to the definition of "public nuisance," such a nuisance includes the mere possession of a so-called "assault weapon" or the unlawful carrying/transportation of any firearm.

    Thus, if a person keeps a semi-automatic M1 rifle in a safe in his home, and never even uses the rifle, the home can be confiscated. It is Orwellian to call private possession of a firearm a "public nuisance."

    The ordinance makes no exception for owners who have lawful permits. Thus, under the ordinance, a person carrying a handgun in his car can have his car forfeited even if he has a permit to carry a handgun. The City Attorney claims not to use the ordinance against persons with permits, but this claim does not explain why the City Attorney and the Webb administration have resisted all efforts to modify the ordinance so that the ordinance does not apply to lawful gun carrying.

    Under section 37-51 of the ordinance, there is a mandatory fine of $500 per day for violation of the ordinance. Under the current ordinance, simple possession in the home of one unregistered gun for one year would result in a mandatory criminal penalty of more than $180,000. This violates state law, which limits the amount of criminal fines which Denver can impose to $1,000. The City Attorney argues out that if a fine grew too high, a defendant could invoke the U.S. Constitution's prohibition against cruel and unusual punishment. This claim ignores the fact that the U.S. Supreme Court has refused to apply the Eighth Amendment in any cases where prison sentences or monetary fines were challenged as being disproportionate to the underlying crime.

    Under section 37-53(c)(1) of the criminal ordinance, the mandatory fines may be suspended only if the defendant is evicted from his home. Thus, the punishment for not registering a semi-automatic rifle becomes eviction from the home.

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    1. "Public Nuisance" Civil Ordinance: Bad as the criminal ordinance is, it is a paragon of scrupulous fairness, compared to the civil ordinance. The first section of the civil ordinance, the "Policy for Civil Abatement," sets the tone, demanding confiscation and loss of property rights "without regard to...the culpability or innocence of those who hold these rights."

      The section dealing with "Civil Procedure" is astonishing. The property owner is not allowed to raise equitable defense, or to assert cross claims, or third-party claims. The ordinance even declares that the property owner is not an indispensable party to a court proceeding for the confiscation of the property!

      Another "Civil Procedure" provision states that it is no defense to confiscation that the property owner, after receiving notice that a nuisance existed on his property, took steps to abate nuisance.

      Automobile Seizures: Recall that an automobile may be confiscated if there is a gun in it. There is no exception for guns carried pursuant to a lawful permit which current state law declares is to be valid throughout the state. Seizure of a vehicle is allowed without a prior court hearing. This is a huge hardship to impose on people who may lose their only mode of getting to work or to a doctor.

      Once the vehicle is taken, the City Attorney has 30 days to wait to act.

      Hearsay Evidence: In contravention of normal American rules of evidence, court are required to admit hearsay evidence.

      Hearsay evidence is second-hand evidence. An example might be "John said that he heard from somebody that there is an unregistered gun at Smith's house."

      The Colorado Rules of Evidence forbid the use of hearsay because it is by definition unreliable and untrustworthy. The Rules of Evidence also create certain exceptions, and allow use of hearsay evidence when there are special circumstances which would make it more reliable (e.g., the hearsay is contained in an official church record; the hearsay is contained in a medical record). The Colorado Rules of Evidence also allow the courts to admit hearsay evidence which is not covered by one of the specific exceptions to the rule against hearsay, when certain safeguards are met.

      The Denver ordinance does not come remotely close to qualifying for the exception under Colorado Rules of Evidence 803.

      First, the ordinance requires the admission of hearsay in general, rather than only when special circumstances exist.
      Second, the ordinance contradicts the Colorado Rules of Evidence by requiring the admission of hearsay even when the hearsay lacks the "circumstantial guarantees of trustworthiness" which the Colorado Rules of Evidence demand.
      Third, the ordinance shifts the burden of persuasion on evidentiary issues. Normally, the proponent of questionable evidence (such as hearsay) must show to the court why the evidence should be admitted. But the ordinance forces the admission of hearsay evidence, unless the property owner can prove that the hearsay is unreliable or untrustworthy.

      A person's right to the possession of her guns, her car, and her home should not be violated based on rumors or third-hand denunciations. Hearsay evidence which does not meet the standards of the Colorado Rules of Evidence should never be allowed in Colorado courts. There is no reason that public nuisance cases should be based on evidentiary rules different from those applicable every day in Colorado courts.

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    2. And I guess smoking a joint in a park is not classified a.public nuisance?

      Fill me in.

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    3. You cannot smoke dope in public, that's an actual state law, at least in Colorado.

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  2. Oh well... it was pretty much an empty jesture and at the end of the day, one not worth appauding after all.

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