Indiana govt pushes for civil forfeiture in court

[jamil]

The ***hat Solicitor General Thomas Fisher was appointed in 2005, by then-governor Mitch Daniels.

But I agree that we should give Holcomb an earful, since I assume the ***hat serves at his pleasure.

EDIT: Apparently, "***hat" doesn't get filtered. So, I self-filtered.

You can say ass on the internet, which includes INGO. You just can’t put it together with certain words, like “hole”. If you self-filtered that (***hole) people could at least know what you’re saying.

 

[T.Lex]

I will withhold stating my direct opinion of the current (and only one Indiana has ever had) Solicitor General. I will say that I'm not surprised he's making the argument that he is making.

Generally, that position was created in 2005 for no apparent reason other than to hire a Solicitor General. I'm not sure anyone else was even considered, even people with more experience arguing in front of the state and federal appellate courts.

 

[Indyhd]

Well if the state had not had a Solicitor General until 2005 when a position was created maybe the position needs to be eliminated entirely and the forfeitures can be handled on a local level by the county sheriff such as the tax collection system is currently.

 

[HoughMade]

The states better tread lightly on this as the SCOTUS has already indicated they have no love for civil forfeiture...

Nope. They simply stated that the 8th Amendment applied. There now has to be a proportionality analysis. Assuming proportionality, they did not disapprove of civil forfeiture.

I'm not sure anyone else was even considered, even people with more experience arguing in front of the state and federal appellate courts.

I have a ton​ of experience arguing in front of the state and federal courts. There was this one homeless dude in Hammond who hung out in front of both courthouses and he'd always start up with the "y'know, the civil war really wasn't about slavery"...and you KNOW I couldn't let that go.

 

[Mikey1911]

Nope. They simply stated that the 8th Amendment applied. There now has to be a proportionality analysis. Assuming proportionality, they did not disapprove of civil forfeiture.



I have a ton​ of experience arguing in front of the state and federal courts. There was this one homeless dude in Hammond who hung out in front of both courthouses and he'd always start up with the "y'know, the civil war really wasn't about slavery"...and you KNOW I couldn't let that go.

You can argue in front of the court, or you can argue before the Court, right?

 

[Denny347]

I recall the original argument for asset forfeiture being the supposed problems caused by drug kingpins having so much money they could run most any jurisdiction actually enforcing the laws broke in court before getting to trial and conviction. This was also the argument behing setting the bar so low on proof that for all practical purposes there is no bar. Of course we were assured that this would only be used in extreme cases on top tier drug dealers with incomes exceeding INGO's combined income by an order of magnitude--not too different from the **** we were fed about a SWAT team being needed by every department with enough ogficers to assemble one.

As for the lottery fraudster, as I recall he knew someone on the inside who told him where the roll went with a high-dollar scratch off winner, so he went to the little burg where this relatively big winner went and bought tickets till he got to the winner.

Who set the bar? It's a Civil Forfeiture case, heard in Civil Court. Civil trial law sets the bar.

 

[Trigger Time]

Nope. They simply stated that the 8th Amendment applied. There now has to be a proportionality analysis. Assuming proportionality, they did not disapprove of civil forfeiture.



I have a ton​ of experience arguing in front of the state and federal courts. There was this one homeless dude in Hammond who hung out in front of both courthouses and he'd always start up with the "y'know, the civil war really wasn't about slavery"...and you KNOW I couldn't let that go.

So you always play devils advocate on issues?

 

[Tanfodude]

They need to update the speed limit anyways to a minimum of 40mph and get rid of any 30mph road. And any wide, multilane roads that stretches for 10mi needs to be 60mph not 50mph.

 

[chipbennett]

Who set the bar? It's a Civil Forfeiture case, heard in Civil Court. Civil trial law sets the bar.

I'm of the school of thought that the following represents the bar for any seizure of personal property (whether it is renamed "civil forfeiture" or otherwise):

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

 

[T.Lex]

Heya chip,

I'm not sure that actually helps. In civil court, the standard is (generally) proof beyond a preponderance of the evidence. That is, it must be proven - but only barely more likely - that the forfeited item is linked to criminal activity. (These are broad brushstrokes.)

The 4A that you quote dictates only probable cause. That is a standard easier to meet (but a bit higher than reasonable articulable suspicion). "Probably" is easier to prove than "more than likely."

Maybe something more like, "No person shall ... be deprived of ... property, without due process of law; nor shall private property be taken for public use, without just compensation."

 

[IndyDave1776]

I would start at the point where the government should not be allowed to redefine alleged criminal activity as a civil offense in order to circumvent the legal restrictions on dealing with the alleged offense under consideration.

 

[chipbennett]

Heya chip,

I'm not sure that actually helps. In civil court, the standard is (generally) proof beyond a preponderance of the evidence. That is, it must be proven - but only barely more likely - that the forfeited item is linked to criminal activity. (These are broad brushstrokes.)

The 4A that you quote dictates only probable cause. That is a standard easier to meet (but a bit higher than reasonable articulable suspicion). "Probably" is easier to prove than "more than likely."

Maybe something more like, "No person shall ... be deprived of ... property, without due process of law; nor shall private property be taken for public use, without just compensation."

I was referring primarily to the first clause, that the right of the people to be secure... against unreasonable searches and seizures, shall not be violated.

Are warrants even issued for "civil forfeiture" seizures?

 

[HoughMade]

I was referring primarily to the first clause, that the right of the people to be secure... against unreasonable searches and seizures, shall not be violated.

Are warrants even issued for "civil forfeiture" seizures?

They can be to start the process, but the "seizure" doesn't allow the gvt. permanently deprive someone of property unless it is evidence of a crime, found to be forfeited in a criminal case (as opposed to civil forfeiture) or ordered to be sold for restitution, also as part of a criminal case.

...and "unreasonable". Obviously that doesn't mean "no seizure". It means that a constitutionally sound process must be used (warrant) for the seizure. Likewise "shall not be deprived of life liberty or property without dues process of law" doesn't mean "no deprivation"- it means, only after due process, again, defined by the courts based upon the Constitution.

 

[chipbennett]

They can be to start the process, but the "seizure" doesn't allow the gvt. permanently deprive someone of property unless it is evidence of a crime, found to be forfeited in a criminal case (as opposed to civil forfeiture) or ordered to be sold for restitution, also as part of a criminal case.

...and "unreasonable". Obviously that doesn't mean "no seizure". It means that a constitutionally sound process must be used (warrant) for the seizure. Likewise "shall not be deprived of life liberty or property without dues process of law" doesn't mean "no deprivation"- it means, only after due process, again, defined by the courts based upon the Constitution.

I don't think "no seizure" or "no deprivation" is the line at issue here. Personally, I think all implementation of "civil forfeiture" falls outside the line of constitutionality. The state is arguing that it is reasonable to seize an automobile if it was driven 5 mph over the speed limit.

 

[HoughMade]

I don't think "no seizure" or "no deprivation" is the line at issue here. Personally, I think all implementation of "civil forfeiture" falls outside the line of constitutionality. The state is arguing that it is reasonable to seize an automobile if it was driven 5 mph over the speed limit.

...and the Supreme Court said seizures have to be proportional as the 8th Amendment applies, so....

I get that they are trying to argue that all property involved in the crime is subject to forfeiture, and assuming that they can prove that, and the underlying crime​ I would agree. I would limit it to actual crimes....and speeding is not a crime, normally.

 

[IndyDave1776]

...and the Supreme Court said seizures have to be proportional as the 8th Amendment applies, so....

I get that they are trying to argue that all property involved in the crime is subject to forfeiture, and assuming that they can prove that, and the underlying crime​ I would agree. I would limit it to actual crimes....and speeding is not a crime, normally.

We aren't too far apart here. I would require it be proven that the property was acquired through the proceeds of a crime proven to have happened. This is a long way from grabbing any cash that isn't found in an envelope along with a bank receipt and property of third parties not participating in a crime, like hotel owners. It shouldn't be my burden to prove that the money I have came from granny stuffing cash in coffee cans since 1938 rather than supposing that my possession of cash the system can't account for is proof of criminal activity.

 

[T.Lex]

https://www.politico.com/story/2019/07/12/mike-pence-kanne-judge-trump-1411915

Indiana Solicitor General mentioned in that article. Going to the 7th Circuit would be a YUGE promotion.

IMHO, there were other reasons for the nomination to fade away.

 

[jamil]

...and the Supreme Court said seizures have to be proportional as the 8th Amendment applies, so....

I get that they are trying to argue that all property involved in the crime is subject to forfeiture, and assuming that they can prove that, and the underlying crime​ I would agree. I would limit it to actual crimes....and speeding is not a crime, normally.

Are you saying “should” or “is”?