Politics Protecting our 5th Amendment

[MARIS61]

A Tip of The Cap to a Real American, New Mexico Governor Susana Martinez.

New Mexico Governor Signs Historic Property Rights Protections into Law

SANTA FE, NM—Today, Governor Susana Martinez signed HB 560 into law, ending the practice of civil asset forfeiture in New Mexico. Civil asset forfeiture, also known as “policing for profit,” allows law enforcement officers to seize personal property without ever charging—much less convicting—a person with a crime. Property seized through this process often finds its way into the department’s own coffers. HB 560, introduced by NM Rep. Zachary Cook and passed unanimously in the legislature, replaces civil asset forfeiture with criminal forfeiture, which requires a conviction of a person as a prerequisite to losing property tied to a crime. The new law means that New Mexico now has the strongest protections against wrongful asset seizures in the country.
“This is a good day for the Bill of Rights,” said ACLU-NM Executive Director Peter Simonson. “For years police could seize people’s cash, cars, and houses without even accusing anyone of a crime. Today, we have ended this unfair practice in New Mexico and replaced it with a model that is just and constitutional.”
“With this law, New Mexico leads the nation in protecting the property rights of innocent Americans,” said Paul Gessing, President of the Rio Grande Foundation. “Convicted criminals will still see the fruits of their crime confiscated by the state, but innocent New Mexicans can now rest easy knowing that their property will never be seized by police without proper due process.”
“New Mexico has succeeded today in reigning in one of the worst excesses of the drug war,” said Emily Kaltenbach, State Director for Drug Policy Alliance’s New Mexico office “Like other drug war programs, civil asset forfeiture is disproportionately used against poor people of color who cannot afford to hire lawyers to get their property back. This law is an important step towards repairing some of the damage the drug war has inflicted upon our society and system of justice.”
“New Mexico has shown that ending policing for profit is a true bipartisan issue with broad public support,” said Lee McGrath, Legislative Counsel for the Institute of Justice. “America is ready to end civil asset forfeiture, a practice which is not in line with our values or constitution. This law shows that we can be tough on crime without stripping property away from innocent Americans.”
Bipartisan legislation has already been introduced in both houses of Congress that would dramatically reform federal civil asset forfeiture laws. The Fifth Amendment Integrity Restoration (FAIR) Act has been introduced in the Senate by Sen. Rand Paul (R-KY), Sen. Angus King (I-ME) and Sen. Mike Lee (R-UT). In the House, Rep. Tim Walberg (R-MI), Rep. Scott Garrett (R-NJ), Rep. Tony Cárdenas (D-CA), Rep. Keith Ellison (D-MN) and Rep. Tom McClintock (R-CA) introduced an identical version of the FAIR Act.

http://www.errorsofenchantment.com/...istoric-property-rights-protections-into-law/

 

[magnifier661]

That's really cool!

 

[MarAzul]

Republicans should run her for President with Mitt Romney as VP. Pull the Hispanic vote and the Women vote along with the Republicans.
Let Romney do his economic thing and she can handle the Media. Watch Hillary scramble.

 

[MarAzul]

Add Carly Fiorina to the team as SS or something and let her chew Hillary's tail the whole time.

 

[Denny Crane]

Interesting they don't mention she's a republican, but are happy to talk about bipartisan legislation and list the party affiliation of the sponsors.

ACLU and Republicans agree on this?

 

[jlprk]

Interesting they don't mention she's a republican

Interesting that the article doesn't mention that Attorney General Eric Holder (who is hated by Republican blogs) did this on a national scale 3 months before the article. So the Republican New Mexico Attorney General is jumping onto the Eric Holder bandwagon. Good for her, but the article certainly isn't biased toward Democrats as you claim. It's biased against them, by not mentioning Holder's monumental change.

http://www.drugpolicy.org/blog/holder-slashes-civil-asset-forfeiture

http://www.dailykos.com/story/2015/...r-ends-most-forms-of-federal-asset-forfeiture

 

[Denny Crane]

Thanks for playing. They list political affiliation for several others.

 

[jlprk]

I found this thread, searching for the best Rand Paul thread. This wasn't it.

Did you just say that you're smarter than Eric Holder? Republicans wanted to retain him so much, they stalled for months approving his replacement.

 

[Denny Crane]

He served in W's administration.

Spin that.

 

[jlprk]

In the White House kitchen, or out on the lawn? How come Republican blogs don't ever say this? They're my main source, you know.

 

[Denny Crane]

He also was appointed by Reagan. Your hero.

 

[jlprk]

Both Republicans and Democrats kept that a secret. The former, so they could target him and Obama as bogeymen. The latter, to hide from their own party's voters the fact that both are conservative Democrats.

What was his position? I guess I should read Wikipedia articles on everyone.

 

[Denny Crane]

He was appointed superior court judge by Reagan. Served as Atty General in W's.

 

[jlprk]

I didn't notice him till Republicans made him target practice and made him famous.

 

[oldmangrouch]

Straying back to the original topic - this issue is a bit more complicated than this article makes out.

There are actually 3 distinct situations that came into play with civil forfeiture.

1) Criminal profits. ie the drug dealer's room full of cash, his porsche, etc. This is the area where the law tends to be abused.

2) The criminal instrument. The gun used in the crime. The lab equipment used to make meth. Only a few 2nd amendment extremists object to these seizures.

3) Stolen property. Just because the person escapes conviction, should they be allowed to keep what they stole from you?

Reforming #1 is fine. If #2 and #3 get swept up in the process, tremendous harm will be done.

 

[Denny Crane]

If he stole from you to buy the Porsche?

 

[Denny Crane]

I didn't notice him till Republicans made him target practice and made him famous.

I like him just fine. I think he lied to congress though.

 

[oldmangrouch]

If he stole from you to buy the Porsche?

Traditional civil forfeiture laws would mean the state could go after him even if something prevented a criminal conviction. Under the law being discussed - who knows? I don't trust the media to correctly report complex legal issues, and I lack the motivation to do extensive research. (unless you want to pay my hourly rate)

 

[Denny Crane]

It sure seems like a violation of several bits of the constitution to me. Innocent until proven guilty, for one. Right to life, liberty, and property, would be another.

 

[SlyPokerDog]

Why all the concern about 5ths but nothing about pints, flasks or kegs?

 

[oldmangrouch]

It sure seems like a violation of several bits of the constitution to me. Innocent until proven guilty, for one. Right to life, liberty, and property, would be another.

Civil forfeiture still requires due process - it is just conducted under civil court rules rather than criminal court. It is no more unconstitutional than the fact that OJ was acquitted of criminal charges, but convicted of wrongful death in a civil suit.

Here's a bit of irony for you: before Oregon gutted our civil forfeiture law, a high percentage of the civil trials ended with the defendant bailing out and not contesting the suit.

 

[jlprk]

As I recall, government abused forfeiture by grabbing assets at the time of arrest, long before any trial. The only way you could get them back after you were found innocent was to hire a lawyer and take the government to trial, which took a couple of years. If the asset was your business, well you were out of business.

If there was no trial because your arrest was trivial, you still had to do the same for a couple of years to retrieve your cash and assets. So the cops would stop a black guy in a nice car for not using his indicator and confiscate cash, watch, phone, and anything else expensive. It wasn't cost-effective for him to get a lawyer, especially if he was from far away. (Cops looked for out-of-state license plates.)

This isn't in your 3 categories.

 

[Denny Crane]

As I recall, government abused forfeiture by grabbing assets at the time of arrest, long before any trial. The only way you could get them back after you were found innocent was to hire a lawyer and take the government to trial, which took a couple of years. If the asset was your business, well you were out of business.

If there was no trial because your arrest was trivial, you still had to do the same for a couple of years to retrieve your cash and assets. So the cops would stop a black guy in a nice car for not using his indicator and confiscate cash, watch, phone, and anything else expensive. It wasn't cost-effective for him to get a lawyer, especially if he was from far away. (Cops looked for out-of-state license plates.)

This isn't in your 3 categories.

This.

 

[PtldPlatypus]

Civil forfeiture still requires due process - it is just conducted under civil court rules rather than criminal court. It is no more unconstitutional than the fact that OJ was acquitted of criminal charges, but convicted of wrongful death in a civil suit.

Here's a bit of irony for you: before Oregon gutted our civil forfeiture law, a high percentage of the civil trials ended with the defendant bailing out and not contesting the suit.

Seems counter-intuitive for government to be conducting action under civil court ("preponderance of evidence") rules. The whole point of civil court is for a party who believes they have been wronged to obtain satisfaction for that wrong. In what way has the government been wronged in these civil forfeiture situations? Seems the government shouldn't have any standing to pursue civil action unless they have been directly defrauded.

 

[Denny Crane]

Seems counter-intuitive for government to be conducting action under civil court ("preponderance of evidence") rules. The whole point of civil court is for a party who believes they have been wronged to obtain satisfaction for that wrong. In what way has the government been wronged in these civil forfeiture situations? Seems the government shouldn't have any standing to pursue civil action unless they have been directly defrauded.

Government's "standing" isn't as direct as you'd think.

http://www.foodsafetynews.com/2015/04/u-s-government-sues-wholesome-soy-after-listeria-outbreak/

 

[PtldPlatypus]

Government's "standing" isn't as direct as you'd think.

http://www.foodsafetynews.com/2015/04/u-s-government-sues-wholesome-soy-after-listeria-outbreak/

OK, so the government is responsible for ensuring the safety of the populace, and that lawsuit falls completely within that purview. Makes sense.

I should have clarified the difference between suits intended to stop am action versus suits intended to recover damages. If individuals or corporations suffer monetary damages from a criminal's activities, the wronged party has standing to sure for recovery, not the government. They should only have standing if the public as a whole is being wronged.

 

[Denny Crane]

It seems the law has forfeiture provisions that are intended to allow the government to disrupt criminal enterprise. Those give it standing.

At issue is the government can seize assets, send you a notice, and you have to prove your innocence to get them back. Guilty until proven innocent. Like with the IRS. That's the part that seems unconstitutional.

The government can confiscate property via eminent domain, too. That's actually in the constitution. I don't see how that really applies here.

 

[PtldPlatypus]

At issue is the government can seize assets, send you a notice, and you have to prove your innocence to get them back. Guilty until proven innocent. Like with the IRS. That's the part that seems unconstitutional.

Which differs from what OMG was claiming, which I was contesting. OMG claims that civil forfeiture follows civil court due process. Asset seizure prior to completion of due process is unconstitutional. Furthermore, I disagree with the notion that said government action should not be subject to the more stringent requirements of criminal court.

Long story short, I'm agreeing with you. Why are you trying to argue with me?

 

[Denny Crane]

Which differs from what OMG was claiming, which I was contesting. OMG claims that civil forfeiture follows civil court due process. Asset seizure prior to completion of due process is unconstitutional. Furthermore, I disagree with the notion that said government action should not be subject to the more stringent requirements of criminal court.

Long story short, I'm agreeing with you. Why are you trying to argue with me?

I'm not arguing with you. You're asking about government standing. I gave you my best understanding of how it has standing.

I know the RICO statues extend standing to the government for civil lawsuits. SImilar in scope.

 

[Denny Crane]

http://endforfeiture.com/

What is Civil Forfeiture?

Civil forfeiture—a process by which the government can take and sell your property without ever convicting, or even charging, you with a crime—is one of the greatest threats to property rights in the nation today.

Civil forfeiture cases proceed under the legal fiction that cash, cars, or homes can be “guilty”—leading to such bizarre case names as United States v. 434 Main Street, Tewksbury, Mass. But because these cases are technically civil actions, property owners receive few if any of the protections that criminal defendants enjoy. To make matters worse, when law-enforcement agencies take and sell your property, they frequently get to keep all the proceeds for their own use. This gives agencies a direct financial incentive to “police for profit” by seizing and forfeiting as much property as possible.