I missed this story a few days ago:
The FBI violated people’s constitutional rights when it opened and “inventoried” the contents of hundreds of safe-deposit boxes during a raid on a Beverly Hills vault in 2021, a federal appellate court ruled Tuesday.
....As part of its case against the vault, prosecutors had alleged that some of the vault’s customers were storing criminal proceeds in their boxes. Court records show the FBI also had developed a plan to permanently confiscate everything inside of the boxes worth at least $5,000 as part of a wholesale forfeiture, based on an assumption that those assets were somehow tied to unknown crimes.
However, in their initial warrant request, the FBI and the U.S. Attorney’s office had not asked to seize the contents of the individual boxes in the vault and left out their plans to do so. They instead assured U.S. Magistrate Judge Steve Kim that agents would follow FBI policies for taking inventory of the box contents in order to protect against theft allegations, then contact the box owners about retrieving their property.
This case has been going on for a while, and it's a particularly egregious instance of civil asset forfeiture, the repellant legal theory that allows cops to take property they think is related to a crime—even if they have no proof and even if the victim is never convicted of anything.
In this case, the vault company itself was indeed shady, but there was never any evidence against the individual vault holders. It's certainly possible that some of them were guilty of something, but most weren't. And in any case, there's no excuse for taking people's money unless you can actually prove a case against them.
I continue to be gobsmacked by the whole concept of civil asset forfeiture. I've been assured by various knowledgeable people that it's a sound theory, but I don't buy it and I never have. If you have a case, get a warrant and then bring a case. If you win, seize away. But if you don't, what possible theory allows you to seize private property anyway? It turns innocent-until-proven-guilty on its head. It's insane.
POSTSCRIPT: I do have a question remaining about this. The court apparently ruled on the basis that the FBI had lied in its warrant application. But what if they hadn't? What if they'd told a judge what they planned to do and the judge went along? Would that have made everything kosher?
... quis custodiet ipsos custodes?
From Wikipedia:
My layman’s read of the phrase ‘brought to answer’ is that an adversarial procedure is required, which civil forfeiture certainly is not.
Lawyers, have at me.
The idea that there should be a lower bar for confiscating the proceeds of likely crimes isn't totally outrageous IMO. But there *should* be a bar to cross, and mostly there isn't.
I figured that a reasonable approach would be that if the cops wanted to seize assets from an alleged criminal, *they* have to push the case in court. The requirement could, again, be lower - say the "preponderance of evidence" rather than reasonable doubt - but it should be up to the state to demonstrate that the assets are crooked.
It actually works the other way, where the theft victim has to go to court and demonstrate that the seizure was invalid.
The other thing that needs to change is that if we do have asset forfeiture, the assets should go into some sort of state general fund, not the police department that took it. As it is now, cops are basically stealing shit and using it themselves.
Asset theft is a tool of authoritarian governments for social control and personal enrichment. At first, it might seem like a great way to punish those rotten evildoers, until you realize that it leads directly to slower economic growth (why work when the government will just steal the fruits of your labor?) and increased inequality (because the politically powerful steal from the politically weak).
The reason that Russia can't make anything in its "private" industry is because the government steals every business that is profitable from the citizens who created it. So the Russian citizens stop trying to improve their world, and if you want to see the result, just look at any picture of a Russian town.
A good book on the subject is "Property without Rights", by Michael Albertus.
I'm with Kevin on this issue. Assets should not be taken without conviction of a crime, and maybe not even then, other than to provide compensation for the victims. Certainly not for some state "general" fund.
That state general fund starts out being for the benefit of the widows and the orphans, and ends up funding someone's luxurious homes, travel, and mistresses.
was asset forfeiture really a thing prior to the 90's? I seem to remember it was a convenient and unconstitutional way to fund local police War on Drugs
The modern version where the police get to keep the assets dates til 1984. But asset seizure laws date back to the founding of the republic, originally related to ships at sea.
so... if *anyone* in law enforcement thinks trump plotted jan 6 while staying at trump tower and/or mar-a-lago, they could be confiscated?
The legal fiction which supports the purported constitutionality of this practice is that this involves a civil action AGAINST THE PROPERTY, which is not entitled to due process rights. Of course there is no disputing that as practical matter the the real target of the forfeiture is the alleged criminal, but the Supreme Court has been following this fallacious reasoning for centuries, and seems mostly quite comfortable with it. Purported textualists like Scalia never seem to have a problem with the manifest sophistry, since they just don't care about criminal defendants all that much. If I recall correctly, Justice Thomas may have some qualms about the practice, but most conservatives think it is great because they think they will never be victimized by the abuse. (Smith should use civil forfeiture to grab Mara Lago, and watch all the civil libertarians emerge on the right.)
In all fairness to scalia, he has consistently argued (though routinely flouted) that if it was constitutional in 1789 it's constitutional today. And civil asset forfeiture was practiced by both the british and Americans at the time of the founding.