Civil asset seizure is wide open to governmental abuses, always has been. Tenaha, TX is but one example. It took years or the US Congress to start putting the brakes on the abuses in federal “civil” asset seizures. This next quote is particularly informative but, even more than that, I want you to carve a new term into your repertoire: quasi-criminal. And consider carefully the various proof standards: more likely than not (preponderance of the evidence), clear and convincing, beyond a reasonable doubt.
Representative Hyde… Then I found out if the government confiscates your
property, if they damage it, if they shatter it, if they ruin
it, that is your tough luck. They are not accountable, they are
not responsible. And so in the bill that we put together with
bipartisan support--liberals, conservatives, moderates, quasi-
moderates, semi-liberals, the whole panoply across the board,
375 of them--the bill requires that if a property owner
challenges a seizure, the Federal Government must prove by
clear and convincing evidence the property is subject to
forfeiture. You know, the right of property was recognized in
the Ten Commandments: ``Thou Shalt Not Steal.''
Now, why clear and convincing? Because it is punishment.
When they take your house, when they take your farm, when they
take your automobile, when they take your business, when they
take your cash, they are punishing you. This isn't a civil
action merely; it is quasi-criminal. And when they punish you,
there ought to be maybe not the criminal standard of proof,
beyond a reasonable doubt, but a mere preponderance is for
fender bender cases. In this situation, if the government wants
to bankrupt you and take your property on probable cause, it
seems to me there ought to be clear and convincing evidence.
The bill allows the judge to order the property released
pending final disposition if the judge determines it would work
a terrible hardship on you. If it is your business and they
have taken possession of your business and you are going to be
a ward of the State and your family is going to be on welfare,
these are things a judge can consider. It is giving a judge
flexibility to be humane depending on the situation.
The bill allows judges to appoint counsel for indigents in
civil forfeiture proceedings. It isn't much good to say you
have the right to get your property back if you can't afford a
lawyer. They have impoverished you by confiscating your assets
and you have got to go find a lawyer that will take your case.
So this allows counsel for indigents in civil forfeiture
proceedings.
It also eliminates the requirement that you have to post a
10-percent bond. There is no earthly reason for you posting a
bond. Either you have got a case or you don't, and the bond is
just another hurdle to keep you from justice.
It provides a uniform innocent owner defense, and that was
involved in the case Senator Biden talked about where this
motel in a very tough neighborhood, a crime-ridden
neighborhood, had drug transactions going on. And the owners
repeatedly reported it to the police, withheld permission. You
try to evict some drug dealers sometime; I wish you a lot of
luck. But the police couldn't do it, and the police took his
property, and he finally got it back after the Houston
newspapers raised hell and wrote editorials, and I have them
here.
So an innocent owner defense is where you do everything you
can. You report it to the police, you withhold permission for
these illegal transactions, and that gives you a safe harbor.
That is missing from the administration's bill, but it is in my
bill and it is just and it is fair.
The bill allows a property owner to sue the government for
destroying their property. You are in a yacht and you are
floating off Miami and the DEA swoops down on you, puts you up
against the mast and takes axes and hatchets and chops your
boat up looking for cocaine. They don't find any, they wave
good-bye, and there you are on a floating wood pile. I mean,
that is right, that is a case. It happened, it is in my book.
So this says you have to take care of the property once you
have confiscated it, and the government can be accountable if
they don't. We give 30 days to file the claim rather than 10
days or 20 days, depending on the circumstances. And if they
have taken your cash, then the interest earned on that belongs
to you. That is a tenant's right in any building.
You shouldn't be punished on probable cause. I believe in
criminal asset forfeiture. I think if you are a drug dealer and
you are guilty, not just accused, but you are guilty, you ought
to lose your house, your car, and your shoes and socks. I am
for that. But when you are not guilty, when you haven't been
found guilty, when you haven't been charged, I don't want my
country confiscating property just on probable cause, I really
don't. When the government gets oppressive, you have no place
to turn, except here to Congress. And these people have done
that and that is all I want.
I will leave you with one last little famous case down in
Memphis, where an African American was a landscaper, but he
made the mistake of having $9,000 in cash in his pocket because
he was going to Houston to buy shrubs and he could get a better
deal if he paid cash. And so he went to this terminal, bought
his ticket. The ticket agent saw the money, gave the signal.
The police arrested him, confiscated his money, said it was
probably drug proceeds, and let him go. He left. They didn't
charge him with anything, but they kept his money. It took him
a couple of years, with a lawyer, to finally get his $9,000
back. That is an abuse, that is an abuse.
I don’t want my country OR STATE confiscating property just on probable cause, I really don’t! I don’t want my state confiscating living, breathing property (PETS and other animals) on probable cause alone, being allowed to kill those animals prior to even a quick civil hearing on the probable cause. I really, REALLY, don’t.
In the case of living assets, the standard should be higher than clear and convincing, there MUST be a full and adversarial hearing before KILLING. There simply MUST be better protection of the rights of animal owners and their animals than is provided for non-living assets!!!