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> Basically, you must prove a negative: that you did not commit a crime. It’s a complete inversion of the “innocent until proven guilty” philosophy driving most

> Basically, you must prove a negative: that you did not commit a crime. It’s a complete inversion of the “innocent until proven guilty” philosophy driving most of the criminal justice system. That's because it's civil forfeiture. There is no presumption of innocence in civil law; it's part of criminal law.

bigbacaloa 3y ago
How can the state taking something be considered civil?
- Joker_vD 3y ago
  Because "civil" means "having to do with people and government office as opposed to the military or religion" /s Next time on the program: why "assault" in "battery and assault" doesn't actually mean the same as "assault" in colloquial speech.
- marcus0x62 3y ago
  Because the action is against the property being seized, not the owner of said property[0]. Property cannot commit a crime, and therefore cannot be the defendant in a criminal proceeding, but at the federal level and in almost every state, there are civil statutes permitting these cases to be litigated by the government in rem.[1] 0 - note that if this happens to your property, it sure will feel like it is happening to you. Lawyers will be happy to lawsplain their BS theory[2] to you for a nominal hourly fee. This will not make you feel any better for having been robbed at gunpoint. 1 - https://en.wikipedia.org/wiki/In_rem_jurisdiction https://en.wikipedia.org/wiki/In_rem_jurisdiction 2 - Spoiler alert: the theory is exactly as stupid as it sounds.
  - Joker_vD 3y ago
    Interestingly enough, property used to be able to commit a crime (back when slavery was a thing) but it still could not be sued or be the plaintiff in a lawsuit.
    - marcus0x62 3y ago
      Yes, I believe the government used the "heads I win, tails you lose" theory of jurisprudence in those cases.
    - deleted 3y ago
      [deleted]
- NoMoreNicksLeft 3y ago
  Indirectly, because the idea behind it is old and pertains to very peculiar circumstances. Imagine that it's 1804, and a ship shows up in port carrying contraband. The sailors on the ship didn't know about it, they just make sure the boat doesn't sink. The owners are nowhere to be found, they live in London or Paris or Antwerp or something, and you'll never be able to arrest them for it (this is the pre-extradition world). What do you do with the contraband? You need a formal law to deal with seizing it. And this serves as the framework for our modern civil forfeiture laws. A case would be entered into the dockets something like "State of New York vs. 152 Gallons of Whisky" or whatever. The whisky itself committed no crime, there can't be a criminal case.
  - Joker_vD 3y ago
    Even then, maybe it's actually the crew that took a couple of additional crates of whiskey/cigarettes as a side-gig (pretty normal even today) and not on the owners' orders, good luck trying to prove it or anything at all, really.
Arrath 3y ago
A huge part of why I think civil forfeiture as a practice should go away entirely. Due to the burden of proof being set on the party that just had their resources seized[1], it often amounts to state sponsored robbery. [1]And whom, even if they still had those resources, quite often wouldn't be able to afford the costs associated with proving themselves innocent to get their stuff back in the first place. E: Oh that's how you do italics on HN.
- hgsgm 3y ago
  And the seized property isn't even frozen, destroyed, or donated; it is kept for profit.
  - AmVess 3y ago
    Or kept for themselves. One sheriff recorded himself driving through an upscale neighborhood and going car shopping. He found a car that he liked and said he was going to seize it and keep it for himself.
    - wahnfrieden 3y ago
      I believe you but do you have a link covering this? Would like to have it to share. Thx
eyelidlessness 3y ago
While this is an accurate assessment of its legality, it’s not a particularly helpful response to the philosophy. And whether intended or not, it has the effect of implying the distinction may justify the practice. From my perspective, “cops can take your stuff unless you prove your innocence because it’s not a criminal proceeding” is a distinction without a difference. Cops shouldn’t be able to just take your stuff.
- Joker_vD 3y ago
  I don't argue with that! I just explained how it was possible to implement it in law in the first place. But yes, it absolutely must have been a criminal procedure, as it is in some (many?) other countries.
  - deleted 3y ago
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- deleted 3y ago
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- abigail95 3y ago
  It's not an accurate assesssment of its legality. The government has to prove suspicion of wrongdoing on a preponderence of the evidence. Edit: You can show up to a civil forfeiture case as a claimant, refuse to answer other questions under the 5A, and walk out with the goods if the judge doesn't think there's any wrongdoing.
SenAnder 3y ago
[dead]
pierrebai 3y ago
Calling it civil forfeiture is in itself problematic. The assumption is that the person committed a crime and profited from it. Kinda of a weird mix. You must prove you did not commit a crime in a civil case.
- Joker_vD 3y ago
  It actually sounds unconstitutional when you put it like that... but then again, if you don't put it like that then it doesn't! Law is like an ass, isn't it, it goes in whatever direction the drover points it.
- rtkwe 3y ago
  The original use case of CAF as a way to seize assets of unknown or absentee owners with clear connections to crimes makes it make more sense both legally and philosophically. IMO the big fix for civil asset forfeiture is that if there is a claimant you need to charge them with some crime to seize it and it has to go through the normal process.
bandyaboot 3y ago
First off all…mind blown. I had no idea the presumption of innocence didn’t apply to civil law. Second, is slapping a “civil” label on there all you have to do to make it reasonable? “But judge, you can’t put me in jail. When I took that guy’s wallet at gunpoint, I made sure to inform him that it was civil-armed-robbery.” Edit: rhetorical question as I don’t think you’re actually of the opinion that it’s reasonable.
- dfxm12 3y ago
  As a legal idea, civil forfeiture is something the state specifically empowers police to do. This is on top of cops pretty much being able to do what they want without recourse. Normal civilians don't have this luxury.
  - mulmen 3y ago
    Since when does the state have such power? The state only has powers granted by the people.
    - maxbond 3y ago
      Legitimacy stems from the consent of the governed. The state and the Constitution determine what powers the state has, eg, by passing laws and by subjecting them to judicial review. (Referendums notwithstanding.)
    - stonogo 3y ago
      A pretty sentence, but since the courts have upheld both qualified immunity and civil asset forfeiture, it appears the people have granted the power to do so.
      - mulmen 3y ago
        Ok but by what principle? We can change the law.
        3y ago
NoMoreNicksLeft 3y ago
It's worse than that. You have to prove the cash did not commit a crime. This sounds absurd, but it's easily prove, the cases are named things like United States vs. $117,000 in Cash and State of Missouri vs. Gold Jewelry Worth Approximately $1400. But if that's not absurd enough for you, boy do I have some good news for you! Since the case is against the property, you the previous owner of that property don't automatically have standing. Court cases in the US are based on common law (except maybe Louisiana, who knows what goes on in that Bonapartist shithole), to appear in court at trial, you have to prove that you're actually a party to the case. It's automatic if you're the defendant in a criminal trial (or plaintiff in civil), or the prosecutor... but third parties are usually told to pound sand. And the case clearly names the property as the defendant. Don't let me overstate it... as far as I know, no one's ever been denied standing when petitioning this, but it's another hoop to jump through. One that will cost you money. If they seized less than $10,000 or so, forget it. It'll cost you that to get the stuff back. So they tend to target lesser amounts now days, knowing that no one will bother. And if it's a higher amount, they'll often try to settle... "hey we know it will cost you another $5000, so why don't you take half and we keep the rest?" Of course, you're still paying the lawyer a few grand to get that far, and it will come out of your $5000, and not their (using that word pains me) half. If you haven't retched in your own mouth a little, then I still haven't properly explained how bad this is. Go read.
deleted 3y ago
[deleted]
mulmen 3y ago
If I shout “this is a civil matter!” while stabbing you in the chest can I dodge the murder charge?
- Joker_vD 3y ago
  If you possess legislative powers (which no single person actually does) then sure, you can decriminalize murder and make it a non-criminal offence. But why? You lose your presumption of innocence, you lose a guaranteed defence attorney, and you still face years of prison and maybe even the chair... there is a reason why offences with gravest punishments (that is, crimes) have pretty strict procedures and proof requirements set up around them.
  - mulmen 3y ago
    I agree. It’s ridiculous that any person would be allowed to murder or steal. Even (especially?) the police.
monocasa 3y ago
And yet, so many times you ask cops to help with a crime they say "oh, that's a civil matter, we can't do anything".

bigbacaloa 3y ago

How can the state taking something be considered civil?

Joker_vD 3y ago
Because "civil" means "having to do with people and government office as opposed to the military or religion" /s Next time on the program: why "assault" in "battery and assault" doesn't actually mean the same as "assault" in colloquial speech.
marcus0x62 3y ago
Because the action is against the property being seized, not the owner of said property[0]. Property cannot commit a crime, and therefore cannot be the defendant in a criminal proceeding, but at the federal level and in almost every state, there are civil statutes permitting these cases to be litigated by the government in rem.[1] 0 - note that if this happens to your property, it sure will feel like it is happening to you. Lawyers will be happy to lawsplain their BS theory[2] to you for a nominal hourly fee. This will not make you feel any better for having been robbed at gunpoint. 1 - https://en.wikipedia.org/wiki/In_rem_jurisdiction https://en.wikipedia.org/wiki/In_rem_jurisdiction 2 - Spoiler alert: the theory is exactly as stupid as it sounds.
- Joker_vD 3y ago
  Interestingly enough, property used to be able to commit a crime (back when slavery was a thing) but it still could not be sued or be the plaintiff in a lawsuit.
  - marcus0x62 3y ago
    Yes, I believe the government used the "heads I win, tails you lose" theory of jurisprudence in those cases.
  - deleted 3y ago
    [deleted]
NoMoreNicksLeft 3y ago
Indirectly, because the idea behind it is old and pertains to very peculiar circumstances. Imagine that it's 1804, and a ship shows up in port carrying contraband. The sailors on the ship didn't know about it, they just make sure the boat doesn't sink. The owners are nowhere to be found, they live in London or Paris or Antwerp or something, and you'll never be able to arrest them for it (this is the pre-extradition world). What do you do with the contraband? You need a formal law to deal with seizing it. And this serves as the framework for our modern civil forfeiture laws. A case would be entered into the dockets something like "State of New York vs. 152 Gallons of Whisky" or whatever. The whisky itself committed no crime, there can't be a criminal case.
- Joker_vD 3y ago
  Even then, maybe it's actually the crew that took a couple of additional crates of whiskey/cigarettes as a side-gig (pretty normal even today) and not on the owners' orders, good luck trying to prove it or anything at all, really.

Arrath 3y ago

A huge part of why I think civil forfeiture as a practice should go away entirely. Due to the burden of proof being set on the party that just had their resources seized[1], it often amounts to state sponsored robbery. [1]And whom, even if they still had those resources, quite often wouldn't be able to afford the costs associated with proving themselves innocent to get their stuff back in the first place. E: Oh that's how you do italics on HN.

hgsgm 3y ago
And the seized property isn't even frozen, destroyed, or donated; it is kept for profit.
- AmVess 3y ago
  Or kept for themselves. One sheriff recorded himself driving through an upscale neighborhood and going car shopping. He found a car that he liked and said he was going to seize it and keep it for himself.
  - wahnfrieden 3y ago
    I believe you but do you have a link covering this? Would like to have it to share. Thx

eyelidlessness 3y ago

While this is an accurate assessment of its legality, it’s not a particularly helpful response to the philosophy. And whether intended or not, it has the effect of implying the distinction may justify the practice. From my perspective, “cops can take your stuff unless you prove your innocence because it’s not a criminal proceeding” is a distinction without a difference. Cops shouldn’t be able to just take your stuff.

Joker_vD 3y ago
I don't argue with that! I just explained how it was possible to implement it in law in the first place. But yes, it absolutely must have been a criminal procedure, as it is in some (many?) other countries.
- deleted 3y ago
  [deleted]
deleted 3y ago
[deleted]
abigail95 3y ago
It's not an accurate assesssment of its legality. The government has to prove suspicion of wrongdoing on a preponderence of the evidence. Edit: You can show up to a civil forfeiture case as a claimant, refuse to answer other questions under the 5A, and walk out with the goods if the judge doesn't think there's any wrongdoing.

SenAnder 3y ago

[dead]

pierrebai 3y ago

Calling it civil forfeiture is in itself problematic. The assumption is that the person committed a crime and profited from it. Kinda of a weird mix. You must prove you did not commit a crime in a civil case.

Joker_vD 3y ago
It actually sounds unconstitutional when you put it like that... but then again, if you don't put it like that then it doesn't! Law is like an ass, isn't it, it goes in whatever direction the drover points it.
rtkwe 3y ago
The original use case of CAF as a way to seize assets of unknown or absentee owners with clear connections to crimes makes it make more sense both legally and philosophically. IMO the big fix for civil asset forfeiture is that if there is a claimant you need to charge them with some crime to seize it and it has to go through the normal process.

bandyaboot 3y ago

First off all…mind blown. I had no idea the presumption of innocence didn’t apply to civil law. Second, is slapping a “civil” label on there all you have to do to make it reasonable? “But judge, you can’t put me in jail. When I took that guy’s wallet at gunpoint, I made sure to inform him that it was civil-armed-robbery.” Edit: rhetorical question as I don’t think you’re actually of the opinion that it’s reasonable.

dfxm12 3y ago
As a legal idea, civil forfeiture is something the state specifically empowers police to do. This is on top of cops pretty much being able to do what they want without recourse. Normal civilians don't have this luxury.
- mulmen 3y ago
  Since when does the state have such power? The state only has powers granted by the people.
  - maxbond 3y ago
    Legitimacy stems from the consent of the governed. The state and the Constitution determine what powers the state has, eg, by passing laws and by subjecting them to judicial review. (Referendums notwithstanding.)
  - stonogo 3y ago
    A pretty sentence, but since the courts have upheld both qualified immunity and civil asset forfeiture, it appears the people have granted the power to do so.
    - mulmen 3y ago
      Ok but by what principle? We can change the law.
      - 3y ago

NoMoreNicksLeft 3y ago

It's worse than that. You have to prove the cash did not commit a crime. This sounds absurd, but it's easily prove, the cases are named things like United States vs. $117,000 in Cash and State of Missouri vs. Gold Jewelry Worth Approximately $1400. But if that's not absurd enough for you, boy do I have some good news for you! Since the case is against the property, you the previous owner of that property don't automatically have standing. Court cases in the US are based on common law (except maybe Louisiana, who knows what goes on in that Bonapartist shithole), to appear in court at trial, you have to prove that you're actually a party to the case. It's automatic if you're the defendant in a criminal trial (or plaintiff in civil), or the prosecutor... but third parties are usually told to pound sand. And the case clearly names the property as the defendant. Don't let me overstate it... as far as I know, no one's ever been denied standing when petitioning this, but it's another hoop to jump through. One that will cost you money. If they seized less than $10,000 or so, forget it. It'll cost you that to get the stuff back. So they tend to target lesser amounts now days, knowing that no one will bother. And if it's a higher amount, they'll often try to settle... "hey we know it will cost you another $5000, so why don't you take half and we keep the rest?" Of course, you're still paying the lawyer a few grand to get that far, and it will come out of your $5000, and not their (using that word pains me) half. If you haven't retched in your own mouth a little, then I still haven't properly explained how bad this is. Go read.

deleted 3y ago

[deleted]

mulmen 3y ago

If I shout “this is a civil matter!” while stabbing you in the chest can I dodge the murder charge?

Joker_vD 3y ago
If you possess legislative powers (which no single person actually does) then sure, you can decriminalize murder and make it a non-criminal offence. But why? You lose your presumption of innocence, you lose a guaranteed defence attorney, and you still face years of prison and maybe even the chair... there is a reason why offences with gravest punishments (that is, crimes) have pretty strict procedures and proof requirements set up around them.
- mulmen 3y ago
  I agree. It’s ridiculous that any person would be allowed to murder or steal. Even (especially?) the police.

monocasa 3y ago

And yet, so many times you ask cops to help with a crime they say "oh, that's a civil matter, we can't do anything".