Fixing Asset Forfeiture

I discussed civil asset forfeiture in “Spoils of War” and also discussed the IRS seizure of assets for “structuring” deposits in “Repeal the Bill of Rights” under the Fourth and Fifth Amendments.  I won’t say these policies should be eliminated because, in some cases, they do serve to disrupt cash flow for criminal activities, however when the NYPD boasts that they seized more cash than they can count they sound more like Blackbeard’s pirates than civil servants.  When innocent citizens have to file expensive lawsuits to recover wrongfully seized property the system is broken, so let’s fix it.  Here’s one way.

Assets seized from people not charged with a crime must be returned to the owner within one business day if criminal charges are not filed within a reasonable time, e.g., 48-72 hours.

Assets seized from people charged with a crime must be held in escrow pending outcome of the trial.  If the defendant is found “not guilty” the assets must be returned to the owner.  If the asset was cash it must have been held in an interest-bearing account and the cash returned with accrued interest.  If lawfully acquired real property (buildings, vehicles, firearms, etc.) was seized the state must preserve and maintain that property such that it can be returned intact and without loss.  If the individual is found “guilty” the judge will determine what happens to the seized property.

I think this is a reasonable balance between the needs of law enforcement to disrupt criminal activity and the rights of citizens to keep their lawfully acquired property.  When police departments consider themselves to be profit centers the entire concept of law enforcement is maligned.

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Retroactive Laws: A New Assault on Private Property

A retroactive law is a law that criminalizes a past action that wasn’t a crime at the time.  Known as “ex post facto” laws, they are strictly and unambiguously prohibited by Article I, Section 9 (for Congress) and Section 10 (for states) of our Constitution.  They can be used to punish a person and/or to seize their property which is why such laws are banned.  Progressives, however, see the Constitution as an obstacle to their agenda.  I’ll look at one example of how they’re being used and then discuss the very slippery slope of ex post facto laws.

The state of California has passed some restrictive new gun laws.  One bans the manufacture and sale of high capacity magazines; the other (SB1446) prohibits possession of such magazines (hence requires confiscation) that were legally purchased in the past.  The constitutionality of the first law may be under debate everywhere but the second one is clearly unconstitutional.  It’s a retroactive ban, therefore it’s a ex post facto law.  Those who don’t submit to a mandatory “buyback” will be criminalized for what was a legal activity at the time of purchase.  The term “buyback” itself is a misnomer.  The government can’t buy back something it never owned.  If the government asserts ownership of all private property it’s a communist government.  Unless the government is paying full retail value for confiscated items it’s also theft.  Obviously confiscation of items obtained illegally or used for criminal purposes is a different matter that doesn’t involve ex post facto laws.

OK, you don’t care about the Second Amendment, but let’s look at just how slippery a slope ex post facto laws against private property could become.

The EPA has issued increasingly strict tailpipe emission and gas mileage requirements for cars and other light vehicles.  Tier I took affect in 1994, Tier 2 in 2004, and the Obama administration has approved even stricter mileage requirements in the future.  The standards that took effect in 1994 and 2004 effectively banned the future sale of new vehicles that didn’t meet those standards but they didn’t ban the ownership of older vehicles.  Suppose, however, that our progressive government, influenced by the socialist UN, decided to confiscate all vehicles that didn’t meet Tier 2 standards?  Of course they’d pay owners some token sum for surrendering their means of transportation but it would impose the greatest hardship on those who could least afford it.  Do they care?  NO!  Most politicians are rich.  As  I said once before, rich elitists will always live above the messes they cause for the masses.

You don’t think this could happen?  Don’t make me say “I told you so” again!  Over a year ago I predicted that we might someday see an environmental impact tax on meat.  Now the UN is actively recommending such a tax and Denmark is considering one.  Socialists are as relentless as ISIS when it comes to imposing their will on everyone.

The concept that private property that is obtained legally and not used for criminal purposes belongs to individuals, not the government, is fundamental to our freedom and our entire way of life.  Don’t let socialists incrementally deprive us of that freedom.

Spoils of War

Has the “War on Drugs” become a secret war on private property?  This “war” is a war with vague rules of engagement and little obvious success in reducing drug use.  It offers the rather perverse incentive that law enforcement can collect “spoils of war” in the form of property confiscation, even if it harms innocent people.  A wife might not know her husband is dealing drugs but she and her children could wind up homeless if the house is raided.  The property might even be destroyed in the raid, and even if property is destroyed during a “wrong address” raid the government has no liability to compensate innocent victims.  You might not know a friend is dealing drugs but if he’s caught in your car you could lose it.  A person traveling with a large amount of cash can find it seized “on suspicion” without other evidence of drug-related activity, and getting it back means hiring a lawyer to file an expensive lawsuit.  Why do laws provide for spoils of war under the name of “Civil Asset Forfeiture”?  Even the military can’t loot captured territory.

Parts of these laws also seek to stop money laundering by requiring banks to report deposits over $10,000.  The law also prohibits “structuring” by making regular deposits of lesser amounts to avoid that reporting rule.  If the IRS sees regular deposits into an account of somewhat lesser amounts it can confiscate the account without due process and without any evidence of criminal activity.  It is then up to the depositor to prove innocence rather than the government to prove guilt.  A simple reality is that small businesses make frequent deposits of lesser amounts just because they don’t want to keep a lot of money around to entice robbers.  Another reality is that, thanks to pervasive drug abuse, a significant portion of our currency is contaminated with drug residue that can be used as evidence against innocent people.  Can’t those high paid desk jockeys figure that out or are they just enjoying a power trip?

A fundamental principle of our legal system is “innocent until proven guilty”. The drug war shouldn’t be exempt from that concept.