Due Process?

Reason has been on top of the LA crackdown on bacon-dog sales from mobile carts for some time.  Recently, the police stormed in and confiscated a number of vendors' inventory and push carts.  OK, its bad enough that bacon product sales have been deemed a threat to the Republic.  But what freaked me out is that the police did not impound the carts but rather junked them (pictures here).  So where is the due process?  If the police are found to have acted precipitously in arresting these folks, if they are found to be not guilty for whatever reason, their property is still gone forever.  This is roughly equivilant to having your car crushed in a mobile hydraulic press within minutes of being given a speeding ticket.  I wonder how many of these carts, which likely represent a huge investment relative to the investment capital these small business people possess, are collateral for loans?


  1. morganovich:

    i am under the impression (but not certain) that a number of things work this way in california law. if your vehicle is impounded for use in a drug crime (including possession) it can be confiscated and sold at auction BEFORE you even go to trial. i have a friend (lawyer, hey even they need friends) who represented a defendant who had precisely this happen to him. he explained the logic of how the state claimed that a car could be sold for use in a crime that had not yet been proven in court to me, but i found it utterly unconvincing and and absurd violation of due process. i cannot, alas, remember what it was though. i just remember being astounded that such a rule has stood up upon appeal.

  2. nicole:

    I can't quite speak to the original question either—because of course it is a violation of due process—but the issue morganovich brings up is more widespread. Asset seizure laws generally allow law enforcement to take cars, cash, and whatever else they can get their hands on if they say it's been used in the commission of a drug-related crime without necessarily ever even charging you with a crime, or charging you and then dropping the charges before it ever reaches court. And they won't have to give anything back, of course. Their standard for whether the seizure is legal is generally a "preponderance of the evidence"—i.e., nothing like "beyond a reasonable doubt." (Yes, this does in fact mean that you can be acquitted by a jury and still lose your assets.)

  3. Dr. T:

    To morganovich: The U.S. Supreme Court ruled that it is quite acceptable for law enforcement to deprive you of your Fourth Amendment rights when the officers deem it 'probable' that you are involved in illegal drugs or money laundering. In these cases, law enforcement can confiscate vehicles, computers, homes, businesses, cash, jewelry, coin collections, etc. No proof is required other than suspicion. You don't even have to be charged with a crime. If it was all a mistake, you have no recourse: your belongings now are owned by the governments. The DEA uses this a lot, and they split confiscation revenues with local police if they were involved with the 'bust.'

    Clarence Thomas wrote a scathing minority argument about this gross violation of the Fourth Amendment. But, the majority of Justices gave away our rights in the name of the Drug War. For those who don't know, this happened long before 2000, so don't blame the Bush administration.

  4. morganovich:

    thanks dr. t.

    do you happen to recall the rationale they used to justify permitting such seizures?

    it's difficult to imagine a system more suited to abuse.

  5. morganovich:

    ok, i stopped being lazy and did some research:


    What is it?

    Unlike criminal forfeiture, civil forfeiture proceeds against the property, not the person. In theory, civil actions are remedial, not punitive like criminal proceedings. By acting civilly, the government seeks to remedy a harm, through the fiction of the property's "guilt."

    The same statutes apply--18 U.S.C. §981 (parallels 18 U.S.C. §982) and 21 U.S.C. §881. To complicate matters, these statutes incorporate by reference Customs procedures from 19 U.S.C. §1602 involving searches, seizures, administrative procedure, holding, and disposal. When the government learns of a crime, establishes probable cause of the property's involvement (usually as an instrumentality), it may seize the property by executing a warrant. A criminal charge or conviction is not required to seize. Notice occurs through presentation of the warrant and publication in a newspaper. If a party files a claim within the answer period, a civil hearing commences. In uncontested situations, the forfeiture may be handled administratively.

    Due to its civil nature, the roles of the parties change. Instead of prosecutor versus defendant, the hearing concerns a plaintiff, the United States in the case of Federal forfeitures, and a defendant, the property in question. The owner is effectively put in the position of being a third party claimant. Furthermore, civil hearings involve a more lenient burden of proof than "beyond a reasonable doubt." Once the government establishes probable cause that the property is subject to forfeiture, the owner must prove by "preponderance of the evidence" that it is not.

    Since the government determines which form of forfeiture to use, it is not surprising that most are carried out using the civil (in rem) procedure.

    What defenses exist?

    Unless provided in statute (as in 18 U.S.C. §981(a)(2)), innocence of the owner is typically not a defense. Furthermore, courts interpret the statutory defenses stringently. For instance, courts may apply an objective standard to determine if the owner should have had knowledge of the property's illegal use, rather require proof of actual knowledge. The owner may argue that no crime ever occurred, that the government lacked probable cause, or that the property is not closely enough connected to the crime to be considered an instrumentality or proceeds.

    Should any of these defenses succeed, the government need simply return the property to the owner. It is not liable to the owner damages caused by the property's detention, including damages resulting during the original seizure or a failure to look after the property while in government custody.

    HR 1658 was supposed to reign this in by significantly altering who needed to prove what:

    Most importantly, the federal government would have to show by a "clear and convincing evidence" standard that the property in question was eligible for forfeiture. A property owner would be given 30 days to challenge the forfeiture, not 10 days as currently allowed, and would not be required to put up a 10% bond as precondition to the challenge. Judges would have the authority to appoint counsel for indigent plaintiffs, and could release the property to the owner if the owner could show that the loss would be a substantial hardship for him or her. Furthermore, the government would be liable if they negligently lost or damaged the property, and some owners of seized cash could also receive interest if they recover the money.

    but even under this set of rules, a hot dog vendor could have his cart taken as an instrumentality to the crime unless perhaps he could prove it was not used to deliver illegal bacon or what have you.

    sorry state of affairs...

  6. tsiroth:

    As someone who first became aware in the early 90s of the inherently abusive civil forfeiture process, I can tell you all that one of the hardest parts of persuading others of the injustice of these practices is the extreme difficulty of first even convincing people that this sort of thing can happen at all.

    Frequently, you will be met with open disbelief. If you succeed in convincing someone that the police _can_ do this, you still have to climb the next hurdle of disbelief, regarding how common it is. If you actually manage to convince someone that it is both legal and common, you must still convince your audience that the victims of civil forfeiture do not somehow deserve to have their stuff taken.

    For more information visit http://www.fear.org

  7. Michael Miller:

    The 5th Amendment to the US Constitution reads in part, "nor be deprived of life, liberty, or property, without due process of law".

    I once witnessed a Chicago Police Tactical Officer threaten to break up a little black kid's shoeshine kit. The kid was from the projects and was trying to earn a little honest money by shining shoes on the streets of Chicago's Gold Coast. Of, course, the kid did not have a vendor's license. The cop told him that if he ever caught him there again he would bust up the kids shoeshine kit. As the cop spoke he kicked the kit, spilling the contents of the kit all over the place. In LA they busted up the 'kit'.

    This sort of behavior on the part of the police has been going on for a long time and it is not unique to LA, New York or Chicago. The police also fix cases, lawyers collude with each other and prosecutors, selling out their clients and judges just look the other way. Happens every day, almost everywhere in the US. Even if you have a ton of money to spend and a high profile case, and with all the facts lined up just your way, you will still find justice very hard to obtain.

    No one believes it. Everything looks good on the surface of things, but when examined closely, there is a system that is rotten to the core. Fair and and impartial justice is the exception, not the rule, and only the wealthiest of our citizens can afford to enter or defend themselves in our legal forums.

    Tsiroth is 100% correct about public disbelief. The American public has no clue how bad our legal system really is.

  8. ginsocal:

    The city of Fresno just got slapped around for doing something similar with paraphernalia "owned" by the homeless. Quite a chunk of city change went out the door.