State v. Timbs, et al, Ind. Ct. App. Decision on Civil Forfeiture

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  • Kirk Freeman

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    Civil forfeiture is a topic of interest on INGO so I thought INGO might be interested in the Indiana Court of Appeals decision handed down today upholding the dismissal of a civil forfeiture action against a heroin dealer were the State sought to forfeit his Land Rover. Forfeiture dismissal upheld on Eighth Amendment grounds as it constituted an excessive fine.

    http://www.in.gov/judiciary/opinions/pdf/10201602pdm.pdf
     

    HoughMade

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    Read it, with interest, this morning. It's interesting that because there is, by statute, a fine limited to $10,000 related to the crime, the Land Rover forfeiture was excessive. However, if the owner had never been convicted of a crime, what then? The decision hints at, but does not specifically state, that the forfeiture may have been kosher.
     

    AtTheMurph

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    The other interesting thing about the lawsuit is that the Land Rover is named as a party to the suit.

    That is a the problem right there. In civil forfeiture the property is presumed guilty and it is the citizens/owners requirement to prove it is not. If that isn't anti-American, I don't know what is.
     

    AtTheMurph

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    Because a civil forfeiture is the presumed guilt of the property thus allowing it's seizure. The owner doesn't have to be convicted of a crime or even charged with a crime to have the property seized. Thus the property itself is deemed to be criminal and the (former) owner must prove its innocence.
     

    Kirk Freeman

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    Because a civil forfeiture is the presumed guilt of the property thus allowing it's seizure. The owner doesn't have to be convicted of a crime or even charged with a crime to have the property seized. Thus the property itself is deemed to be criminal and the (former) owner must prove its innocence.

    That is not Indiana law whatsoever.

    Why do you believe it is? Internet? Alex Jones? Curious to why you would think this.
     

    GodFearinGunTotin

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    That is not Indiana law whatsoever.

    Why do you believe it is? Internet? Alex Jones? Curious to why you would think this.

    It may not be the law but isn't that the effect? Does the property have a right to an attorney? Does it get a chance at bail while its awaiting its day in court?
     

    Kirk Freeman

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    It may not be the law but isn't that the effect? Does the property have a right to an attorney? Does it get a chance at bail while its awaiting its day in court?

    No, that is not the effect. The burden, as I explained, is on the State.

    You have a right to notice and opportunity to be heard and right to civil counsel.

    Property bail? Kinda, sorta. You have a right to a hearing to see if State can prove its case that property is proceedings of offenses listed in §1.
     

    T.Lex

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    Ok, Kirk, you had me at "excessive fine" and I'm really shaking the mental dust off some long-forgotten research.

    Isn't there a double jeopardy issue between an excessive forfeiture and a criminal penalty?

    (I know, the opinion probably addresses this, but I'm not going back to those cases and you can't make me.)
     

    HoughMade

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    Long story short, the prosecutor must prove, by a preponderance of the evidence, that the property to be forfeited is the type on a list found in Ind. Code sec. 34-24-1-1, which is a list of property used in connection with a whole bunch of different crimes.

    What many people don't like is the fact that the property can be seized before the hearing where this showing is made. However, if it is seized, it must be seized pursuant to a lawful arrest, search, administrative inspection, prior judgment, or a court determination of probable cause.

    Then the prosecuting attorney must, within 90 days of a written demand for return, or within 180 days of the seizure, which ever is first, must file an action wherein the prosecutor must prove that the property at issue may be seized under the list in 34-24-1-1.

    I left out several details, but the take away is that the burden of proof is on the prosecutor to prove that the seizure is proper which requires proof that the property was used in connection with a crime. The owner of the property can defend their interest in the property and challenge the propriety of the seizure. They do not have to prove that it was not used in a crime. The prosecutor has to prove it was.
     

    Shalashaska

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    Good. Civil forfeiture is tantamount to legalized theft. Justice system should operate on the premise of innocent until proven guilty, not the other way around
     

    edporch

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    The other interesting thing about the lawsuit is that the Land Rover is named as a party to the suit.

    That is a the problem right there. In civil forfeiture the property is presumed guilty and it is the citizens/owners requirement to prove it is not. If that isn't anti-American, I don't know what is.

    And yet my copy of the US Constitution's 5th Amendment says
    "No person shall...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. "

    It's the burden of the government to PROVE that any property somebody owns was gotten as a result of a criminal act.
    Yet again, they just ignore our rights.

    This garbage that all property is "guilty" and must be proven "innocent" is the double talk of tyrants.
     

    Hoosierkav

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    Well, sure, you will have your due process in court--we will schedule your hearing within 90-180 days of the incident, and, though, it might take a year or two to get your day in court, you'll get it.

    Of course, you could file a grievance with the court that your Constitutional rights are being deprived, and the court will be glad to consider an injunction after a year or two.
     

    HoughMade

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    Well, that was fun while it lasted:

    http://www.in.gov/judiciary/opinions/pdf/11021701ggs.pdf

    We conclude the Excessive Fines Clause does not bar the State from forfeiting Defendant’s vehicle because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment.

    In other words, what we've got here is failure to incorporate.
     

    Kirk Freeman

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    We conclude the Excessive Fines Clause does not bar the State from forfeiting Defendant’s vehicle because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment.

    Justice Slaughter, did you check under the penumbra?
     
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