5 ms·
The loophole relied on is that you aren't seizing "their" property, you're seizing property of unknown ownership. The onus is on the purported owner to prove i
by ikeboy 11y ago
The loophole relied on is that you aren't seizing "their"
property, you're seizing property of unknown ownership. The onus is on the purported owner to prove it belongs to them so they can have Constitutional rights in it.
See https://en.wikipedia.org/wiki/In_rem_jurisdiction https://en.wikipedia.org/wiki/In_rem_jurisdiction, https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_States https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United... and https://en.wikipedia.org/wiki/Asset_forfeiture#United_States https://en.wikipedia.org/wiki/Asset_forfeiture#United_States
Note that the government can admit the person used to own it. Under https://www.law.cornell.edu/uscode/text/18/981 https://www.law.cornell.edu/uscode/text/18/981, property used in certain crimes belongs to the government, and so the government takes it. It's then the person's job to prove it was not involved in a crime. Courts have ruled this doesn't violate anyone's rights.
(I probably have some of this wrong, IANAL, but I gave sources so you can look those up.)
- jwatte 11y agoWhat I don't understand is how courts can assume it's used in a crime before a crime has been proven in court. Presumably, if I can prove I earned/bought something, and am not convicted of a crime, turf the government seizure is wrongful and I should get restitution, but from what I read, that doesn't work?
- ikeboy 11y agoOnly persons have the presumption of not being guilty. Not property. The government can claim crimes all they want, they just can't claim a person committed a crime (and punish them for it). This is all about shifting the burden of proof to the accused. Allowing the money to be charged separately does that, or so courts have ruled. (Insert above disclaimer here.)
- phantom784 11y agoThen shouldn't the law that transfers ownership be "seizing property without due process" and therefore unconstitutional?
- ikeboy 11y agoThe law says (assuming I'm understanding properly) if a crime was committed with property, then that property automatically belongs to the government. The government says "this property belongs to us. You have no rights in it, because a crime was committed with it. Therefore, you have no constitutional protections. Prove that it's yours, and to do so, you must prove that no crime was committed."
- chc 11y agoThe comment you're replying to is asking how that is not siezing property without due process. Repeating what they're doing doesn't answer the question of where due process occurs before the person is deprived of their property.
- ikeboy 11y agoThe person is not deprived of "their" property. They may be deprived of property that they have no way to show is, in fact, theirs.
- jwatte 11y agoThen the question is, what is property rights? What safety in my property and protection against seizure thereof do I have from the constitution?
- ikeboy 11y agoAny property not accused of a crime is protected, plus some other categories. I posted a law review article above that went into detail.
- chc 11y agoThe comment you're replying to is asking how that is not siezing property without due process. Reiterating that the government treats the property as its own doesn't answer the question of where due process occurs before the person is deprived of their property.
- baddox 11y agoIf that's the loophole, then how does it not apply just as well to all searches and seizures? Why can't cops just show up at a house, search it, take whatever they want, and leave it up to the owner to prove they're the owner or try to fight it in court after the fact? Of course, that's a rhetorical question, because that exact thing does routinely happen.
- ikeboy 11y agoBecause they don't have any basis for claiming that it belongs to them. Whereas property accused of being used for illegal purposes does have such a basis.
- baddox 11y agoSo the cops just have to declare that they believe the property has been used for illegal purposes, then they can search your house and take whatever they want. That's not much of a barrier.
- ikeboy 11y agoIt's more complicated. A house is treated differently (I linked some resources on why elsewhere in this thread), and going in requires a warrent.