Todays Topic Forfeiture Laws

[welj31]

I found this and it seems to be a subject for debate.

 

 

 

EDITORIAL: The Department of "Justice" and Other Legal Fictions

 

-Brenda Grantland, Esq., F.E.A.R. Chronicles, Vol 1. No. 3,

(August, 1992)

 

One of the reasons forfeiture laws are so incredibly devoid of

due process (despite what most Americans believe to be their

fundamental rights) is that they use "legal fictions" to reach the

desired results (desired by the government, that is).

 

Black's Law Dictionary (Fourth Ed.) defines a "legal fiction"

as:

 

an assumption or supposition of law that something which

is or may be false is true, or that a state of facts

exists which has never really taken place. . . . A rule

of law which assumes as true, and will not allow to be

disproved, something which is false, but not impossible.

 

Let's explore a few of these "legal fictions" and see how true

that definition is.

 

Fiction # 1: The property is the guilty party

 

The most common "legal fiction" is the fiction that the

property itself is the defendant in the case -- and not the owner.

Because the property is "guilty", the fiction goes, it can be

forfeited without respect to the rights of its owner(s), because

property, not being a person, has no constitutional rights.

 

This has been used by courts to forfeit property without the

normal due process guarantees usually provided to civil litigants -

- much less those required for a criminal conviction. It was used

to justify lowering the burden of proof to probable cause, and then

having the burden shift to the property owner to prove the property

should not be forfeited.

 

The fiction that the property is the guilty party has also

done serious damage to the innocent owner defense. Since the party

is the property itself, the Justice Department argued to the

Supreme Court in Calero Toledo v. Pearson Yacht Leasing Co., 416

U.S. 663 (1973), it should be forfeited without regard to the

innocence of the owner.

 

In other words, OUR GOVERNMENT'S LAWYERS argued it should be

able to take from honest, hard-working, innocent citizens to the

same extent it can take from the criminal him/herself -- if the

property is "guilty". The Justice Department argued that it was

okay to make the property owner strictly liable when crimes were

committed using his/her/its property -- even if the owner had no

knowledge of the criminal behavior.

 

The problem with that legal fiction is that property has no

morals at all, and no ability to say "no" to drugs.

 

Fortunately the Supreme Court didn't buy the government's

argument totally. It said that the Constitution protects innocent

owners if they can show they did all they reasonably could be

expected to do to prevent the illegal use of the property. This in

effect allowed the government to put the burden of proof on the

property owner to show he/she/it was not negligent in allowing the

property to be used to commit a crime.

 

Legal Fiction #2: The relation back doctrine

 

The second most dangerous fiction in asset forfeiture

(if not a tie for most dangerous), is the "relation back" doctrine,

under which the forfeiture of the property "relates back" to the

time of the illegal act which gave rise to the forfeiture. The

committee report to the Comprehensive Crime Control Act of 1984, PL

98-473 (the statute that created this madness) states:

 

The interest of the United States in the property is to

vest at that time, and is not necessarily extinguished

simply because the defendant subsequently transfers his

interest to another.

 

David F. B. Smith, Esq., in his recently filed amicus brief in

the Buena Vista case,* describes the hazards to third party

interests created by this doctrine:

 

[The American Land Title Association and the National

Mortgage Bankers Association] are interested in this case

because of their concern that the rights of innocent

mortgage lenders and other bona fide purchasers for value

be adequately protected in forfeiture proceedings.

Mortgage loans . . . are an important means of providing

credit in the United States. Loans worth hundreds of

billions of dollars are secured by mortgages on

residential and commercial real estate. Furthermore,

mortgage loans constitute an integral part of the process

by which most real estate in the United States is bought

and sold. . . . The security provided to the lender by

its mortgage lien is a vital element of the loan

transaction. . . . In particular, any modification of

the essential terms of home mortgages, which typically

are secured only by the principal residence of the

mortgagor, would have serious adverse affects on the

nationwide residential mortgage markets and ultimately on

future home buyers.

 

From the perspective of mortgage lenders, therefore, the

security interest represented by the mortgage lien is an

important and valuable interest -- and one that should be

protected in a forfeiture proceeding. In this case,

however, the United States [Justice Department] takes the

position that the relation-back doctrine, which provides

that the interest of the United States in property

subject to forfeiture relates back to the date of the

first illegal activity giving rise to the forfeiture,

cuts off any subsequently-acquired rights in the

property, including those claimed by innocent mortgage

lenders who acquired their property as bona fide

purchasers in good faith for value. Consequently, the

position taken by the United States would leave innocent

mortgage lenders without any statutory protection in

civil forfeiture proceedings in which the lien attached

after the commencement of the illegal activity giving

rise to forfeiture. Other innocent bona fide purchasers

for value would similarly be denied statutory protection

as innocent owners.

 

Can you believe the position of the Justice Department? Since

the statute of limitations on federal forfeiture is five years

after commission of the offense, the government could take away the

property of innocent first home buyers, for example, for something

done not by the previous owner, but the owner before that, if the

property changed hands a couple of times in five years.

 

What is the Justice Department trying to do, nationalize all

the land in America?

 

Legal Fiction #3: That "Asset Forfeiture is the Single Most

Effective Weapon in the War on Drugs"

 

How often have you heard Justice Department and law

enforcement types spouting those words -- verbatim? They must have

all been made to memorize it at some law enforcement retreat.

 

What makes them think forfeiture is effective? The dollar

value of property seized and/or forfeited? How is that

"effective" if the vast majority of the equity in property

forfeited belongs to innocent people?

 

The 10 month study conducted last year by the Pittsburgh Press

(for the series of articles entitled "Presumed Guilty") revealed

that 80% of the property seized for forfeiture is taken from people

that are not charged with a crime. If this is targeting the real

criminals (which we know it isn't), then why aren't they arresting

and prosecuting them?

 

I have never seen any evidence that asset forfeiture is

helping in any way to deter drug trafficking. The true drug

traffickers started using rental cars and other people's property

to do their business -- as soon as these laws were enacted.

 

Legal Fiction #4: Zero Tolerance

 

The Leslie Ohta story proved that the "zero tolerance" policy

of the Department of Justice is an outright lie. "Selective

Tolerance" is more appropriate.

 

We told you about Ohta in our last newsletter. She's the

forfeiture prosecutor in Hartford Connecticut who ruthlessly

forfeited houses from innocent parents and grandparents, and

squiggled out of having her own property seized after her son was

allegedly caught (1) selling marijuana in her house in 1989, (2)

selling LSD from her car in 1991, and (3) later in 1991 possessing

marijuana in her car.

 

On July 9, Leslie's story aired on CBS Street Stories. There

was Leslie Ohta, being interviewed in her jogging suit, pointing

out properties she had forfeited, and grinning. She was visibly

proud of herself when Peter Van Sant referred to her as the "Queen

of forfeiture." She responded: "And last year, the chiefs of

police in Connecticut awarded me 'Prosecutor of the Year.' We have

never lost a real estate forfeiture case."

 

They interviewed the Cwikla's, whose house was seized by

Leslie Ohta because of the claims of an informant working off his

own criminal charges. Van Sant asked Leslie: "Is it true that not

a seed of marijuana has ever been found in the Cwikla's house?"

"How could it be found," she answered, "the house was never

searched."

 

When Van Sant asked her what about her own son Mikki's cases,

in which he allegedly sold LSD from her car and marijuana from her

house, her attitude was "what of it." Mikki played piano for the

television crew. Neither he nor Leslie showed any remorse. She

saw no conflict with the fact that people far more innocent than

she is were victimized forfeiture, in cases she prosecuted.

 

Van Sant confronted her: "You know what this looks like to

the public? 'The queen of forfeiture' -- the woman that has seized

so much property involving drug cases -- when it comes to her own

home -- boy, she gets off. Nobody seizes anything."

 

"Mm-hmm" she replied, "But I don't think you should be taking

that up with me. Why don't you take it up with the Glastonbury

Police Department who never referred the cases for seizure."

 

Van Sant asked "You understand the frustration that a lot of

these people feel in this case, that there was special treatment?"

 

"Well, you know, um, that -- that just isn't my problem," she

said.

 

Obviously, Leslie Ohta's is a sick case of noblesse oblige

that stretches all the way up the ladder to the highest reaches of

the so-called Department of Justice. Her case is also the prime

example of the falsity of the doctrine of "zero tolerance." Zero

tolerance might be what Leslie Ohta dished out on her victims, but

the Justice Department's policy is clearly SELECTIVE TOLERANCE.

 

To rub salt into Ohta's victims wounds, the Justice Department

-- which refuses to reveal its reasoning in sparing Ohta from her

zero tolerance policy -- invited her to Washington the week of

July 14 to lecture U.S. Attorneys on how to apply the forfeiture

laws, Street Stories revealed.

 

I called the Justice Department to see if I could attend the

lecture. Not only was the lecture closed to anyone but Assistant

U.S. Attorneys, but the Justice Department refused to tell me when

or where she would be lecturing.

 

This just goes to illustrate the last legal fiction -- the

fiction of the Department of "Justice." ***

 

There is no justice in America today. All we have is tyranny

wherever asset forfeiture rears its ugly head.

______________________

 

* David F.B. Smith, Esq., wrote the amicus brief on behalf of

the American Land Title Association and the Mortgage Bankers

Association of America, and in support of the property owner. The

full name of the case is United States v. A Parcel of Land . . .

known as 92 Buena Vista Avenue, Rumson, New Jersey, U.S. Supreme

Court No. 91-781. Mr. Smith very graciously gave FEAR a copy of

his brief on diskette. By the time you get this newsletter, the

computer file will probably be posted on the computer bulletin

board at ICSBBS (516)226-3830, local conference 4, under the file

name of BuenaA.zip (ASCII) or BuenaW.zip (Word Perfect.)

 

** 92 U.S. Code Cong. & Admin. News 3383-84 (1984).

 

*** I don't mean to imply that every employee of the Justice

Department is like Leslie Ohta, engaging in a ruthless revenue

grabbing operation. In my years fighting forfeiture cases I have

encountered a couple of Assistant U.S. Attorneys who are decent

human beings. I would give their names but they would probably be

ostracized by their peers.

[+Silverblue]

Thanks for sharing this article. My main question on all this is, what ever happened to being innocent till proven guilty? No need to answer.

 

Silverblue

[UrbanFarmer]

Not sure what became of this but, ...........

 

 

 

 

Editorial: Michigan's civil seizure laws forfeit justice

 

The Detroit News

 

 

Fighting prostitution and drug trafficking in our communities is a vital enterprise, but it's not worth trashing the civil liberties of Michigan residents, and it's certainly not justification for treating citizens as if they are guilty until proven innocent.

 

Michigan's property forfeiture laws allow law enforcement agencies to do just that. Too many people are losing property based on the loosest suspicion of wrongdoing and without being ticketed or charged with a crime, let alone being convicted of one.

 

Fortunately, two Michigan lawmakers recognize the real abuses of civil seizures. State Rep. Gabe Leland, D-Detroit, has introduced a bill that would require police to charge an individual with a crime when property is seized, or return the property without cost. Sen. Tupac Hunter, D-Detroit, plans to offer similar legislation in the Senate.

 

 

 

 

http://webcache.goog...n&ct=clnk&gl=us

[phaquetoo]

Not sure what became of this but, ...........

 

 

 

 

 

 

http://webcache.goog...n&ct=clnk&gl=us

 

Here Here!

[welj31]

You know I am just a comon man. And my opinion counts for little if anything. But when I see people coming forward, getting involved and researching whats going on......well it makes me PROUD. Proud to know and work with these people.

You guys are doing a great job. Please please keep it up. I am only one man. I have many comitments outside of MM. So I cant do it all. When you guys step up it lessens the burden on me. I and my family Thank you. John

[welj31]

Here Here!

I tried to vote your post up to a 2 but it would not let me. But thanks

[phaquetoo]

I tried to vote your post up to a 2 but it would not let me. But thanks

 

All good bro!

I dont realy care about the rating though,

Some body has a woody for me! LOL

 

unless they are going to take me typing privelages away!

[greenbuddha]

All good bro!

I dont realy care about the rating though,

Some body has a woody for me! LOL

 

unless they are going to take me typing privelages away!

 

 

Send em that pet 'woodpecker' of yours in a pretty little box.

 

That should take care of the problem.

 

Stay well, my man.

[Captain Obvious]

Am I missing something or does No Forfeiture, mean No Forfeiture Sort Of ???

 

 

333.26428 Defenses.

 

 

8. Affirmative Defense and Dismissal for Medical Marihuana.

 

Sec. 8. (a) Except as provided in section 7, a patient and a patient's primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid where the evidence shows that:

 

(1) A physician has stated that, in the physician's professional opinion, after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition;

 

(2) The patient and the patient's primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition; and

 

(3) The patient and the patient's primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition.

 

(B ) A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a).

 

(c ) If a patient or a patient's primary caregiver demonstrates the patient's medical purpose for using marihuana pursuant to this section, the patient and the patient's primary caregiver shall not be subject to the following for the patient's medical use of marihuana:

 

(1) disciplinary action by a business or occupational or professional licensing board or bureau; or

 

(2) forfeiture of any interest in or right to property.

[Kevin]

Good post.

 

Thanks for the share.

[phaquetoo]

Send em that pet 'woodpecker' of yours in a pretty little box.

 

That should take care of the problem.

 

Stay well, my man.

 

 

GB I thought mmj makes your memory short term!!!!! lmfao

 

viagra cost =300 a month

cialis daily= 107 a month

woody= priceless!!

[+greenhouse]

"Well, you know, um, that -- that just isn't my problem," what a complain making whoopee cupcake, bunny muffin donkey making whoopee cupcake tea bagging Mt.Dew donkey jerk.

[UrbanFarmer]

Here Here!

 

There is no excuse for any law enforcement agency in this country make victims out of the innocent. This is not a communist country. This unreasonable seizure and forfeiture nonsense is something both republicans and democrats in Lansing ought to support putting a stop to.

 

Not only should it not happen, for those that it does happen to, they should be compensated for it. There should also be penalties for the perpetrators of the "crimes", because that is what they are, crimes.

 

If for some reason, any of the "defenders of civil liberties" Democrats, or, "small govt, tea party" Republicans want to turn a blind eye to this because it involves users of medical marijuana, then they should be called out for being the hypocrites that they are.

[UrbanFarmer]

 

(1) disciplinary action by a business or occupational or professional licensing board or bureau; or

 

(2) forfeiture of any interest in or right to property.

 

I'm not a lawyer, nor do I play one on tv, and I didn't sleep at a Holiday Inn Express last night. However, lol, it sounds to me like it rules out forfeiture altogether. Which, if the case, opens the door for a damages suit by those that have had their property seized.

 

My questions would be: is this actually the case?; does this apply to all registered pt's and cg's, or, only those that are deemed to be within the law after going through a trial?

[welj31]

I'm not a lawyer, nor do I play one on tv, and I didn't sleep at a Holiday Inn Express last night. However, lol, it sounds to me like it rules out forfeiture altogether. Which, if the case, opens the door for a damages suit by those that have had their property seized.

 

My questions would be: is this actually the case?; does this apply to all registered pt's and cg's, or, only those that are deemed to be within the law after going through a trial?

 

 

IMHO YES I think they would say maybe after a trial but thats not clear. I however believe if found to be within the law. They should be able to recover damages.

[Captain Obvious]

I'm not a lawyer, nor do I play one on tv, and I didn't sleep at a Holiday Inn Express last night. However, lol, it sounds to me like it rules out forfeiture altogether. Which, if the case, opens the door for a damages suit by those that have had their property seized.

 

Correct

 

 

My questions would be: is this actually the case?; does this apply to all registered pt's and cg's, or, only those that are deemed to be within the law after going through a trial?

 

Good Question, Pretty sure the Courts will have to work that one out.

[Guest Wayne]

All interesting and often substantive arguments. Just buy a ticket on the ride to the Supreme court and ask the wizards! Ticket prices may be changed mid ride at any time for most any reason.

[phaquetoo]

Correct

 

 

 

 

Good Question, Pretty sure the Courts will have to work that one out.

 

 

you got my vote, lets get rid of your negs!

[phaquetoo]

Am I missing something or does No Forfeiture, mean No Forfeiture Sort Of ???

 

 

333.26428 Defenses.

 

 

8. Affirmative Defense and Dismissal for Medical Marihuana.

 

Sec. 8. (a) Except as provided in section 7, a patient and a patient's primary caregiver, if any, may assert the medical purpose for using marihuana as a defense to any prosecution involving marihuana, and this defense shall be presumed valid where the evidence shows that:

 

(1) A physician has stated that, in the physician's professional opinion, after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition;

 

(2) The patient and the patient's primary caregiver, if any, were collectively in possession of a quantity of marihuana that was not more than was reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition; and

 

(3) The patient and the patient's primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition.

 

(B ) A person may assert the medical purpose for using marihuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the person shows the elements listed in subsection (a).

 

(c ) If a patient or a patient's primary caregiver demonstrates the patient's medical purpose for using marihuana pursuant to this section, the patient and the patient's primary caregiver shall not be subject to the following for the patient's medical use of marihuana:

 

(1) disciplinary action by a business or occupational or professional licensing board or bureau; or

 

(2) forfeiture of any interest in or right to property.

 

 

bump

[Kingpinn]

Its just a whole lot of B S . Money making ponzzie sceam.How else are these A Hole's going to make money but to steal it

[bobandtorey]

i think KP and me should get are stuff back and we will one day