Liberty is an inherently offensive lifestyle. Living in a free society guarantees that each one of us will see our most cherished principles and beliefs questioned and in some cases mocked. That psychic discomfort is the price we pay for basic civic peace. It's worth it. It's a pragmatic principle. Defend everyone else's rights, because if you don't there is no one to defend yours. -- MaxedOutMama

I don't just want gun rights... I want individual liberty, a culture of self-reliance....I want the whole bloody thing. -- Kim du Toit

The most glaring example of the cognitive dissonance on the left is the concept that human beings are inherently good, yet at the same time cannot be trusted with any kind of weapon, unless the magic fairy dust of government authority gets sprinkled upon them.-- Moshe Ben-David

The cult of the left believes that it is engaged in a great apocalyptic battle with corporations and industrialists for the ownership of the unthinking masses. Its acolytes see themselves as the individuals who have been "liberated" to think for themselves. They make choices. You however are just a member of the unthinking masses. You are not really a person, but only respond to the agendas of your corporate overlords. If you eat too much, it's because corporations make you eat. If you kill, it's because corporations encourage you to buy guns. You are not an individual. You are a social problem. -- Sultan Knish

All politics in this country now is just dress rehearsal for civil war. -- Billy Beck

Saturday, March 21, 2009

Due Process?

A couple of posts down, the comment thread derailed a bit. One of the topics taken up was "asset forfeiture," a subject that makes me a bit hot under the collar. A couple of the comments:
"Drug possession in the context you described is a catch-all bludgeon that the police can use to put people in jail because collecting evidence for real crimes was too hard. It's a bullshit victimless crime, just like having an unregistered .50 BMG rifle sitting in a hypothetical California closet."

It goes further than that, Oz.

In some states (or perhaps it's a federal law, I don't really know), a law enforcement agency can simply sieze your property, your vehicle, cash, and what-have-you, claiming that it is the result of illegal drug activity, all without arresting you, charging you, arraigning you, indicting you, trying you, or sentencing you. The gubmint can simply steal from you without the slightest pretext of due process of law.

It's a really sad state of affairs when you can be the victim of your own gubmint and be called the victim of a victimless crime, even when there was no crime at all. - DJ


The gubmint can simply steal from you without the slightest pretext of due process of law.


DJ, I like you, but as much as stickler for detail as you, you're shockingly wrong there.

There's complete due process of law. Your item is arraigned, charged, and convicted before asset forfeiture kicks in.
Very processed.

(Nitpicks aside, Asset Forfeiture was a bad idea gone very wrong. The "Due Process" that is conducted is so slanted that Kangaroos are known to complain about the courts. ) - Unix-Jedi


Theft under color of authority occurred before "asset forfeiture" was a legal gambit, and will occur if it's not(sic) allowed. It's something completely bloody different. - Unix-Jedi
Unix-Jedi's point in the thread is that there's a difference between "asset forfeiture" - which has due process attached - and simple "Theft under color of authority."

To me, that's a distinction without a difference, and (risking a diagnosis of Gell-Mann Amnesia Effect) here's an example of why:
Texas town's police seize valuables from black motorists

Chicago Tribune

TENAHA — You can drive into this dusty fleck of a town near the Texas-Louisiana border if you’re African-American, but you might not be able to drive out of it — at least not with your car, your cash, your jewelry or other valuables.

That’s because the police here have allegedly found a way to strip motorists, many of them black, of their property without ever charging them with a crime. Instead, they offer out-of-towners a grim choice: voluntarily sign over your belongings to the town or face felony charges of money laundering or other serious crimes.
That would be "asset forfeiture with due process of law" - at least from the town's perspective. (My emphasis.)
More than 140 people reluctantly accepted that deal from June 2006 to June 2008, according to court records. Among them were a black grandmother from Akron, Ohio, who surrendered $4,000 in cash after Tenaha police pulled her over, and an interracial couple from Houston, who gave up more than $6,000 after police threatened to seize their children and put them into foster care, the court documents show. Neither the grandmother nor the couple were charged with or convicted of any crime.
Hearkening back to that comment thread, that doesn't mean they weren't guilty of something, right? (Again, emphasis is mine.) This is "theft under color of authority," but the law behind it is ASSET FORFEITURE.
Officials in Tenaha, situated along a heavily traveled state highway connecting Houston with several popular gambling destinations in Louisiana, say they are engaged in a battle against drug trafficking, and they call the search-and-seizure practice a legitimate use of the state’s asset-forfeiture law.
Of course they do! We can trust our "Only Ones," can't we?

Can't we?
That law permits local police agencies to keep drug money and other property used in the commission of a crime and add the proceeds to their budgets.

"We try to enforce the law here," said George Bowers, mayor of the town of 1,046, where boarded-up businesses outnumber open ones and City Hall sports a broken window. "We’re not doing this to raise money. That’s all I’m going to say at this point."
Sure you're not.
But civil rights lawyers call Tenaha’s practice something else: highway robbery. The lawyers have filed a federal class-action lawsuit to stop what they contend is an unconstitutional perversion of the law’s intent, aimed primarily at African-Americans who have done nothing wrong.
So if they do it primarily to whites, it's OK?
Tenaha officials "have developed an illegal 'stop and seize’ practice of targeting, stopping, detaining, searching and often seizing property from apparently nonwhite citizens and those traveling with nonwhite citizens," asserts the lawsuit, which was filed in U.S. District Court in the Eastern District of Texas.

The property seizures are not just happening in Tenaha. In southern parts of Texas near the Mexican border, for example, Hispanics allege that they are being singled out.

A prominent Texas state legislator said police agencies across the state are wielding the asset-forfeiture law more aggressively to supplement their shrinking operating budgets.
(Emphasis mine.) Gotta keep that .gov hand-me-down armored personnel carrier fueled up, you know!
"If used properly, it’s a good law enforcement tool to see that crime doesn’t pay," said state Sen. John Whitmire, D-Houston, chairman of the Senate’s Criminal Justice Committee. "But in this instance, where people are being pulled over and their property is taken with no charges filed and no convictions, I think that’s theft."
You think correctly - but you guys in the legislatures are the ones responsible for writing these laws, and you have an uncanny knack of squealing "We never meant THAT!!!" when they get stretched and twisted.
David Guillory, a lawyer in Nacogdoches who filed the federal lawsuit, said he combed through Shelby County court records from 2006 to 2008 and discovered nearly 200 cases in which Tenaha police seized cash and property from motorists. In about 50 of the cases, suspects were charged with drug possession.

But in 147 others, Guillory said the court records showed that the police seized cash, jewelry, cellphones and sometimes even automobiles from motorists but never found any contraband or charged them with any crime.
(Emphasis - you know.) Don't you feel safer already?
Of those, Guillory said he managed to contact 40 of the motorists directly — and discovered all but one of them were black.

"The whole thing is disproportionately targeted toward minorities, particularly African-Americans," Guillory said. "Every one of these people is pulled over and told they did something, like, 'You drove too close to the white line.’ That’s not in the penal code, but it sounds plausible. None of these people have been charged with a crime, none were engaged in anything that looked criminal. The sole factor is that they had something that looked valuable."

In some cases, police used the fact that motorists were carrying large amounts of cash as evidence that they must have been involved in laundering drug money, even though Guillory said each of the drivers he contacted could account for where the money had come from and why they were carrying it, such as for a gambling trip to Shreveport or to buy a used car from a private seller.

Once the motorists were detained, the police and the Shelby County district attorney quickly drew up legal papers presenting them with an option: waive their rights to their cash and property or face felony charges for crimes such as money laundering — and the prospect of having to hire a lawyer and return to Shelby County multiple times to attend court sessions to contest the charges.
There's your "due process" right there! Signed and notarized!
The process apparently is so routine in Tenaha that Guillory discovered presigned and prenotarized police affidavits with blank spaces left for an officer to fill in a description of the property being seized.
It's an assembly-line!
Jennifer Boatright, her husband and two young children — a mixed-race family — were traveling from Houston to visit relatives in East Texas in April 2007 when Tenaha police pulled them over, alleging that they were driving in a left-turn lane.

After searching the car, the officers discovered what Boatright said was a gift for her sister: a small, unused glass pipe made for smoking marijuana.

Although they found no drugs or other contraband, the police seized $6,037 that Boatright said the family was carrying to buy a used car and then threatened to turn their children, ages 10 and 1, over to Child Protective Services if the couple didn’t agree to sign over their right to their cash.

"It was give them the money or they were taking our kids," Boatright said. "They suggested that we never bring it up again. We figured we better give them our cash and get the hell out of there."
So, what happens if the cops try this with someone who believes in personal sovereignty?
Several months later, after Boatright and her husband contacted a lawyer, Tenaha officials returned their money but offered no explanation or apology. The couple remain plaintiffs in the federal lawsuit.

Except for Tenaha’s mayor, none of the defendants in the federal lawsuit, including Shelby County District Attorney Linda Russell and two Tenaha police officers, responded to requests from the Chicago Tribune for comment about their search-and-seizure practices. Lawyers for the defendants also declined to comment, as did several of the plaintiffs in the lawsuit.

But Whitmire says he doesn’t need to await the suit’s outcome to try to fix what he regards as a statewide problem.

On Monday, he introduced a bill in the state Legislature that would require police to go before a judge before attempting to seize property under the asset-forfeiture law — and Whitmire hopes to tighten the law so that law enforcement officials will be allowed to seize property only after a suspect is charged and convicted in a court.
Well, gee, why didn't you think of that BEFORE? Of course a lot of seized property (cars, boats, etc.) sits in storage lots and rots - for months or years - before forfeiture determinations are made, so perhaps that isn't the panacea it's made out to be, either, but it's at least a start.
"The law has gotten away from what was intended, which was to take the profits of a bad guy’s crime spree and use it for additional crime fighting," Whitmire said. "Now it’s largely being used to pay police salaries, and it’s being abused because you don’t even have to be a bad guy to lose your property."
No, you just have to fit the profile.


(h/t to The Club)

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