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Title: Federal Judge Rules That Albuquerque's Asset Forfeiture Created an Unconstitutional Profit Incentive
Source:
Reason
URL Source: [None]
Published: Jul 31, 2018
Author: C.J. Ciaramella
Post Date: 2018-07-31 04:27:12 by Deckard
Keywords: None
Views: 869
Comments: 8
A federal judge has ruled that Albuquerque's civil asset forfeiture program violated residents' due process rights by forcing them to prove their innocence to retrieve their cars. Under civil forfeiture laws, police can seize property suspected of being connected to criminal activity, even if the owner isn't charged with a crime. The city of Albuquerque "has an unconstitutional institutional incentive to prosecute forfeiture cases, because, in practice, the forfeiture program sets its own budget and can spend, without meaningful oversight, all of the excess funds it raises from previous years," U.S. District Judge James O. Browning wrote in an order filed Saturday. "Thus, there is a 'realistic possibility' that forfeiture officials' judgment 'will be distorted by the prospect of institutional gain'—the more revenues they raise, the more revenues they can spend." The Institute for Justice, a libertarian public interest law firm, filed the lawsuit in 2016 on behalf of Arlene Harjo, whose car was seized after her son drove it while drunk. "It's a scam and a rip-off," Harjo told Reason at the time. "They're taking property from people who just loan a vehicle to someone. It's happened a lot. Everybody I've talked to has had it happen to them or somebody they know, and everybody just pays." Harjo was one of thousands of Albuquerque residents whose cars were seized under the city's aggressive forfeiture program. While lawsuits have forced cities like Philadelphia to reform their programs, federal judges have for the most part been unwilling to directly address the issue of profit incentive. In a statement, Institute for Justice attorney Robert Everett Johnson said the Institute "will undoubtedly use this decision to attack civil forfeiture programs nationwide." "Today's ruling is a total victory for fairness, due process and property owners everywhere," Johnson continued. "The court ruled the government must prove that an owner did something wrong before it can take away their property. Beyond that, the judge ruled that law enforcement cannot benefit financially from revenue generated by a forfeiture program. Together, these rulings strike at the heart of the problem with civil forfeiture." Law enforcement groups say civil forfeiture is a vital tool to disrupt drug trafficking and other organized crime. But civil libertarians note that there are far too few safeguards for property owners and that the profit incentive leads police and prosecutors to go just as often after everyday citizens rather than cartel bosses. New Mexico essentially banned civil asset forfeiture in 2015, but Albuquerque argued the state law didn't apply to its own city codes and continued to seize cars. City officials offered to give Harjo her car back for $4,000—a typical settlement tactic—but she refused to pay up. The city then returned the car in an attempt to render her lawsuit moot and keep its program intact. But in a opinion issued in March, Judge Browning allowed the case to proceed, warning the city that Harjo had raised plausible claims that the city's profit incentive and hearing process violated her constitutional rights. Shortly after the March opinion was released, Albuquerque officials announced they were ending the city's forfeiture program. But Saturday's decision is still important: Two other New Mexico local governments continue to flout the reform law and seize vehicles, and almost no state or local police departments have complied with new reporting requirements for forfeiture activities.
"There is a realistic possibility that forfeiture officials' judgement will be distorted by the prospect of institutional gain."
Arlene Harjo // Institute for Justice
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Begin Trace Mode for Comment # 6.
#1. To: Deckard (#0)
Personally, I do not consider this practice constitutional, unless there is an ARREST involved of the property holder and there is reasonable suspicion that property was gained through the illegal activity that the property holder was arrested for. Upon conviction or a plea, the property is forfeited.
So you support criminal asset forfeiture only. While I agree that some civil asset forfeiture laws have been abused (seizing a car for drunk driving or soliciting for prostitution) it is a valuable tool against drug trafficking.
I think we must be careful with the concept, so we don’t step on the very spirit of the protections our forefathers wanted for free people. On the other hand, I’d rather see stiffer penalties at CONVICTION... like 75% LONGER incarceration times for ALL convictions, loss of car for 2nd DWI conviction, no more parole, probation or alternatives to incarceration. I think we should kill more convicts, PUBLICLY, to send a message. People on their 5th larceny conviction, 3rd DWI... and so on, aren’t learning or rehabilitating. Fuck um... kill them.
The Founding Fathers were very familiar with civil asset forfeiture. "Civil forfeiture has a history dating back several hundred years with roots in British maritime law to the British Navigation Acts around the middle 1600s" "The early Congress wrote forfeiture laws based on British maritime law to help federal tax collectors collect customs duties, which financed most of the expenses of the federal government in the early days of the republic."
There were a lot of things those scumbag Brits did... that our forefathers didn’t approve of. It’s why we kicked their asses out of this country... and formed a republic.
#8. To: GrandIsland, misterwhite (#6)
True as stated, but asset forfeiture was not one of those things not approved of. https://www.forbes.com/2011/06/08/property-civil-forfeiture.html#2719e33539fa By Chip Mellor [Excerpt] Using the British statutes as a model, the first U.S. Congress passed forfeiture statutes to aid in the collection of customs duties, which provided up to 90 percent of the finances for the federal government during that time. The U.S. Supreme Court upheld early forfeiture statutes. Most important to understanding these early cases is the underlying rationale for permitting civil forfeiture even against innocent property owners. The Court reasoned that civil forfeiture was closely tied to the practical necessities of enforcing admiralty, piracy and customs laws. Such forfeiture permitted courts to obtain jurisdiction over property when it was virtually impossible to obtain jurisdiction over the persons guilty of violating maritime law. Justice Joseph Story wrote that the "vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attachés, without any reference whatsoever to the character or conduct of the owner." Justice Story justified these forfeitures "from the necessity of the case, as the only adequate means of suppressing the offense or wrong, or insuring an indemnity to the injured party." Although the U.S. Supreme Court expanded forfeiture law during the exigencies of the Civil War, throughout most of the 20th century, civil forfeiture remained a relative backwater in American law, with one exception--the government used it extensively during Prohibition against automobiles and other vehicles transporting illegal liquor. Modern civil forfeiture expanded greatly during the early 1980s as governments at all levels stepped up the war on drugs. No longer tied to the practical necessities of enforcing maritime law, the forfeiture power has become one of the most powerful weapons in the government's crime-fighting arsenal. - - - - - - - - - - THE JOHN G. STEVENS, 170 U.S. 113 (1898) Decided: April 18, 1898 Mr. Justice GRAY, after stating the case, delivered the opinion of the court. [...] The act of Congress of December 22, 1807, c. 5, laid an embargo on all ships and vessels, within the limits and jurisdiction of the United States, bound to any foreign port or place; and the supplemental act of January 9, 1808, § 3, provided that any ship or vessel proceeding, contrary to the provisions of the act, to a foreign port or place, should be forfeited. 2 Stat. 451, 453. Upon the trial of a libel in the Circuit Court of the United States to enforce the forfeiture of a vessel under those acts, Chief Justice Marshall said: "This is not a proceeding against the owner; it is a proceeding against the vessel, for an offence committed by the vessel, which is not less an offence, and does not the less subject her to forfeiture, because it was committed without the authority and against the will of the owner." The Little Charles, 1 Brock. 347, 354. Upon a libel of information for the condemnation of a piratical vessel, under the act of Congress of March 3, 1819, c. 77, continued in force by the act of May 15, 1820, c. 113, (3 Stat. 510, 600,) Mr. Justice Story, delivering the opinion of this court, and referring to seizures in revenue causes, said: "The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing; and this, whether the offence be malum prohibitum or malum in se. The same principle applies to proceedings in rem, on seizures in the admiralty." The Palmyra, 12 Wheat. 1, 14. In The Malek Adhel, 2 How. 210, 233, 234, Mr. Justice Story, in delivering judgment, stated the principle more fully, saying: "It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, or by the master or crew thereof, a wrong or offence has been done, as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof. And this is done from the necessity of the case, as the only adequate means of suppressing the offence or wrong, or insuring an indemnity to the injured party." And, after quoting the passages above cited from the opinions in The Little Charles and in The Palmyra, he added: "The ship is also, by the general maritime law, held responsible for the torts and misconduct of the master and crew thereof, whether arising from negligence or a wilful disregard of duty; as, for example, in cases of collision and other wrongs done upon the high seas, or elsewhere within the admiralty and maritime jurisdiction, upon the general policy of that law, which looks to the instrument itself, used as the means of the mischief, as the best and surest pledge for the compensation and indemnity to the injured party." In The China, 7 Wall. 53, 68, by the application of the same principle, a ship was held liable for damages by collision through the negligence of a pilot whom she had been compelled by law to take on board; and Mr. Justice Swayne, in delivering judgment, said: "The maritime law as to the position and powers of the master, and the responsibility of the vessel, is not derived from the civil law of master and servant, nor from the common law. It had its source in the commercial usages and jurisprudence of the middle ages. Originally, the primary liability was upon the vessel, and that of the owner was not personal, but merely incidental to his ownership, from which he was discharged either by the loss of the vessel or by abandoning it to the creditors. But while the law limited the creditor to this part of the owner's property, it gave him a lien or privilege against it in preference to other creditors." "According to the admiralty law, the collision impresses upon the wrongdoing vessel a maritime lien. This the vessel carries with it into whosesoever hands it may come. It is inchoate at the moment of the wrong, and must be perfected by subsequent proceedings." The same principle has been recognized in other cases. The John Eraser, 21 How. 184,194; The Merrimac, 14 Wall. 199 ; The Clarita & The Clara, 23 Wall. 1; Ralli v. Troop, 157 U. S. 386, 402, 403. [...] On the other hand, the claim by a tow against her tug for damages caused by negligent towage has been held to be founded in tort, arising out of the duty imposed by law, and independent of any contract made, or consideration paid or to be paid, for the towage, by Mr. Justice Blatchford, when District Judge, in The Brooklyn, 2 Benedict, 547, and in The Deer, 4 Benedict, 352; by Judge Lowell, in The Arturo 6 Fed. Rep. 308; and by Judge Swing, in the Southern District of Ohio, in The Liberty, 7 Fed. Rep. 226, 230. In The Arturo, Judge Lowell said: "These cases of tow against tug are, in form and fact, very like collision cases. The contract gives rise to duties very closely resembling those which one vessel owes to others which it may meet. There is, therefore, an analogy between the two classes of cases so close that the tow may sue, in one proceeding for damage, her own tug and a strange vessel with which there has been a collision." 6 Fed. Rep. 312. And it has accordingly been held, by Judge Nixon, and by Judge Severens, that such a claim by a tow against her tug is entitled to priority of payment over liens on the tug for previous repairs or supplies. The M. Vandercook, 24 Fed. Rep. 472, 478; The Daisy Day, 40 Fed. Rep. 538. The decisions of this court are in accordance with the latter view, and are inconsistent with any other.
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#2. To: GrandIsland (#1)
Personally, I do not consider this practice constitutional, unless there is an ARREST involved of the property holder and there is reasonable suspicion that property was gained through the illegal activity that the property holder was arrested for.
#3. To: misterwhite (#2)
(Edited)
#4. To: GrandIsland (#3)
so we don’t step on the very spirit of the protections our forefathers wanted for free people
#6. To: misterwhite (#4)
(Edited)
“Civil forfeiture has a history dating back several hundred years with roots in British maritime law to the British Navigation Acts around the middle 1600s"
Replies to Comment # 6. There were a lot of things those scumbag Brits did... that our forefathers didn’t approve of.
Civil Forfeiture Laws And The Continued Assault On Private Property
Forbes
Jun 8, 2011, 05:30pm United States Supreme Court
End Trace Mode for Comment # 6.
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