Guilty Till Innocent – Civil Forfeiture of Criminal Defendant’s Property

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Our founding fathers set in stone, that our unalienable rights were, well, unalienable. But over time, politicians and even voters have appointed judges with a political bent in favor of curtailing these rights. An example would be that the First Amendment doesn’t protect yelling “fire” in a crowded movie house that is not even on fire, and so on. In fact, it is more than likely fraud, and if someone accused you of doing the yelling and you didn’t, it could even be defamation and so on.

Of course, yelling “fire” like that is not really “speech” to begin with, so of naturally there is no First Amendment protection for it. It is sort of like saying the First Amendment doesn’t protect the speech of kiddie porn. Of course it doesn’t. That is because kiddie porn is an abuse of innocent children. It is not speech.

As you get deeper into the meat of this stuff, it can really get confusing as to what terms like “unalienable” mean, unless you look at what the actual terms in common usage meant at the time of the discussions and writings that were passed on to us. But basically, our Bill of Rights did not create any new rights, it simply meant to protect these ancient rights in a manner that the King of England had often egregiously refused to do, since the Magna Charta and prior. One thing our founders reinforced is that our rights were “natural”, and passed to us by our “Creator,” not created by a governmental body.

The Erosion of Natural Rights By Statute, Courts and De Facto Law

That governments, no matter how well intended, and in particular courts will erode these natural rights under various exceptions and use of tautologies, for their view of the “greater good,” or that politicians will restrict the rights of some, in order to placate the many, is no great wonder. People who choose public service are generally looking for a career in government. Our founders advocated that productive citizens should only be part time legislators, and instead participate in the economy that the laws they passed had touched upon.

Instead, today, politicians spend a significant amount of time raising money from donors who all have an agenda of their own. For example, when I lobbied congress, our agenda was cruise ship safety legislation. Our opponent was the cruise industry. We had no money to donate, just a room full of victims who were either family or survivors of assaults, man overboard, missing at sea claims, and so on.

Today, these career legislators survive by passing laws. Many of the laws are redundant, and even unconstitutional. Courts usually say it surely must be “rationally based,” and that is usually the end of the matter till the law gets overturned, years, or even decades after the law has wrought its destruction upon freedom.

Overreach is modernly simply an accepted fact of law making. Violate your oath of office, pass an unlawful law, wreak damage, hope it doesn’t get overturned years later, and if it does, you’re already collecting retirement even if you only serve one term. Can you believe that?

In fact, overreaching government is probably one of the reasons that Jefferson advocated a permanent revolution. The farther we stray from the principles of limited government, and the less that politicians are bound by the “chains of the Constitution,” the more we see the decline of our great republic.

Is There Administrative or Voting Power To Take Others’ Property Allowed?

We see as time goes on, a majority will vote either directly or indirectly to take the property away from the minority. The “entitled” majority who just voted themselves the pay and benefits increase at the minority’s expense are finally getting their “fair share,” is the political slogan. The tax agencies can already seize your property and jail you, but that is not a “debtors prison” apparently. Is it lawful to take your house, for example, using civil powers when you are merely at the pleading stage of a criminal complaint, and trying to organize a legal defense?

Well, for one our founders were careful to clarify that the criminally accused were “innocent” until proven guilty by a jury of their peers. Of course, upon reasonable suspicion, notice given and opportunity to respond, a right to reasonable bail was reinforced as being an inherent right to all of the criminally accused, regardless of wealth status. If rich, it is presumed your property will not be seized, and if you’re a pauper, you still get legal counsel, and fee waivers, etc.

This is one important facet of limited government, that the judiciary is a branch of government that would be subsidized in order to assure that parties were treated equally in the eyes of the law. “Social justice” would dictate that the rich man should have his property seized, and thus, get equal justice.

Since social justice is what many bureaucrats would like to achieve, as a utopian ideal, we have seen a fervor in politically charged government agencies. We have seen police, tax agencies and other departments of state and local “rulers” in wielding their power to attack any fellow citizens with force of government that they are ideologically opposed to.

In fact, wealth, or “happiness,” as the courts have interpreted it, is a trapping of hard work that America has been known for throughout its magical history. Many public servants cannot fathom the concept of having great wealth, or being “that wealthy.”  In fact, with people like Lois Lerner running these government agencies, we have seen an erosion of property rights in direct and indirect ways, that our founders could have never imagined.

You name it, “red tape,” delays, permits, licenses, bonds, insurance, fees, penalties, public employee union donations that were not paid, etc.. Just think about how much time and money it takes us business owners just to comply with all these never ending rules and regulations. It is no wonder businesses are fleeing the U.S. to even communist countries like China for crying out loud. So what now?

Well, as tax receipts decline, we see an alarming problem with law enforcement agencies that serve politicians, who in turn craft favorable benefits and retirements for the police unions. But how on earth will they fund all of these Cadillac health benefits and lifetime payouts to these public servants once they are no longer working? How will the local station afford its MRAP maintenance and gas?

One problem, or solution, depending upon who’s side your on, is that these agencies are finding loopholes in the criminal laws, or going outside of them, and seizing, selling, and converting the property of the accused to help police departments and cities pay for their pet projects and to subsidize budgetary losses from the lessened tax base.

In addition, look for the intentional targeting of well off people, as a way to liquidate and convert the property of the citizenry to public (e.g., government’s use.)

But Are Public Servants Really Allowed to Convert the Property of The Criminally Accused to their Own Use?

In a dangerous precedent, law enforcement agencies have dramatically increased their power over the accused in recent years by using lucrative civil forfeiture laws. Those accused of a crime, but not convicted have faced police taking property without compensation.

Some have found it difficult or impossible to get this property back, even after being found innocent. Altogether, these seizures net law enforcement and local governments billions but leave the accused on the hook. This has led to a growing outcry, especially with the violation of the presumption that the accused are innocent until proven guilty.

The amount seized has totaled over $3 billion since 2008 alone.

There has been some attempt to restrict the amount that the government can take recently, as reported in TIME Magazine. The amount seized has totaled over $3 billion since 2008 alone. These forfeitures are uncommonly challenged, even after being found not guilt, or even “innocent”– only one in six are actually challenged.

All of this raises legal and moral dilemmas. The amount seized from the not guilty is against many legal precedents and the bedrock of the Constitution. Many, especially those who are not politically connected, believe that there is nothing that they can do, and drop the defense of case out of fear. They believe that a legal battle in civil court with the government, while they are also a criminally accused by the government, could make them targets of the current or even a future action, or would be even more expensive than the property taken from them in the first place.

If you or a loved one have had your property taken by law enforcement, the emotional and personal trauma can often rise to a civil rights violation, or an outright injury claim. Aside from voting in good politicians, and forcing them to govern within their budgets, instead of buying MRAPS (See above video), there is something that can be done. Experts in property law and legal restrictions are able to challenge the agency that was so callous as to take your property without due process, or under color of law and official right. There are levers in place to challenge such action.

Retention of a Specially Trained Lawyer – Or Legal Team

Sometimes these cases involve excessive use of force, no knock warrants, death of a loved one in a raid, the killing of a dog, or even your kid. So this means you have a war on several fronts facing you. You have to figure out if you have a Title 42 Section 1983 claim as against the police and their agents, as well as your counterclaims, demurrers and answers to any forfeiture action, while simultaneously defending yourself criminally.

This is one example of why it is so important for a veteran personal injury attorney to also understand criminal defense, as well as related areas of law, including criminal and civil restitution claims. It’s not all about chasing ambulances anymore.

When faced with a challenge like this, we the people must take on the local government or police department that took what is rightfully yours and return it to you. Some lawyers who do cases like this, will work on partial contingency basis, handling the civil case– only asking for money if they recover for you, and handling the criminal case on a flat fee, or hourly fee basis.

The true personal injury warrior wants to make sure that the law is upheld, not some bureaucrat’s bottom line. Sometimes it may be necessary to sub in another lawyer who specializes in a related area of law. The lawyers can determine fee sharing or fee splitting amongst themselves and you, the client/accused/victim can try and focus on keeping it together until your day in court.