Tag: State Laws

Without Due Process of Law

 

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
― from The Federalist Papers, No. 51, by James Madison.

United States Attorney General Jeff Sessions is a fan of civil asset forfeiture, and last year he reinstated the federal partnership with state and local authorities that had been ended by the previous Attorney General, Eric Holder. That partnership allows state and local police to share seized assets with federal authorities if they claim even the flimsiest trespass on federal law by the forfeited assets (in a pretzel-like twist of legal reasoning, it is the assets themselves that are accused, not the person or persons who own them). Engaging the federal government in this way allows state and local police to bypass their civil asset forfeiture laws because they are superseded by federal laws, which are often more favorable to the police. The feds then give the state and local cops a kickback of all or part of the proceeds. This is called “equitable sharing” or, more cutely, “federal adoption”.


100 U.S. DOLLARS - MONEY - Free For Commercial Use - FFCU (26742846243)
Getting pulled over for a minor traffic violation while carrying a large amount of cash can lead to a nightmare civil asset forfeiture scenario for the driver, regardless of the legitimacy of his or her claim to the cash. Only the rich can afford to fight city hall in court. Photo by photoo.uk.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

― The Fifth Amendment to the United States Constitution, with the due process clause.


It’s hard to imagine how the law can be more clear than this: ” . . . nor be deprived of life, liberty, or property, without due process of law . . . ” To be doubly sure, there is another due process clause in the 14th Amendment. Yet here we are, with police abusing the citizenry by stealing from them, sometimes without even a formal charge filed, but only on mere suspicion of a crime having been committed with the asset or assets, and keeping the proceeds in order to augment their budget. There are slight differences in the law from state to state, but in many states the police are allowed to keep seized assets, which also clearly violates the last clause of the Fifth Amendment, the takings clause. It’s impossible to imagine a more blatant case of conflict of interest, adding insult to the injury of the initial seizure.

 

In a civil asset forfeiture case, the burden of proof is often on the citizen whose assets were seized, not the authorities who took them. In order to retrieve seized assets, a citizen must prove they were not used in the commission of a crime or are a result of criminal activity, and this proof must be forthcoming even when the police have not filed a charge in court. Apparently the only thing to prevent the police from more flagrantly abusing the civil asset forfeiture laws more than they do is the basic decency and good character of the majority of them. But men are not angels, as James Madison wisely observed, and to allow these laws to remain on the books is to invite corruption of the police and further erosion of public trust in government.

WilliamJeffersonFreezerCash20-45L
Cash found in a freezer at the Washington, D.C. home of Congressman William J. Jefferson of Louisiana. This photo was entered as evidence in July 2009 showing what was seized in August 2005 from the freezer of the home of then Rep. William Jefferson, D-New Orleans. Jurors in the trial of Jefferson, who lost his re-election bid in 2008 while under indictment for bribery, saw photos of the infamous frozen cash. It was wrapped in $10,000 increments and concealed in boxes of Pillsbury pie crust and Boca burgers. Photo by the U.S. Attorney’s Office.

A flagrant case of abuse occurred last year in Jeff Sessions’s home state of Alabama, in the small town of Castleberry in the south central part of the state. To generate revenue for his little town, the mayor hatched a plan for taking advantage of Alabama’s very favorable civil asset forfeiture laws by confiscating cash and property from citizens and visitors alike, but especially out of state visitors, often using entirely invented suspicions. The police chief made no bones about it on public forums, where he joked about how the bogus money grabbing had been a windfall for the town of Castleberry and its nascent police department, now flush with fancy new equipment and patrol cars. Eventually bad publicity caught up with the mayor and police chief of Castleberry, and they were hit with a lawsuit. On a national scale, what happened in Castleberry doesn’t amount to much other than a clear distillation of everything wrong with civil asset forfeiture.

Attorney General Sessions, waving the bloody shirt of the War on Drugs, nevertheless wants to continue civil asset forfeiture and expand it, if he can get away with it. His motivations are unimportant other than how they forecast all the draconian policies he’s likely to see through while he is in charge of the Department of Justice. The important thing is that he has opened up one of the very few issues that attracts a bipartisan consensus in Congress, and that has been for less civil asset forfeiture, not more.

Highway robbery in Stanley Kubrick’s 1975 film Barry Lyndon, with Ryan O’Neal as Redmond Barry. Under America’s civil asset forfeiture laws, the gold guineas in Barry’s purse, and the horse he rode in on, could be forfeited to the robbers, or police.
The strange history of this policy of official stealing from the innocent and the guilty alike also matters little, except perhaps to those appellate court judges who fall back on referring to obscure precedents of legal reasoning as convoluted and ultimately irrelevant as the debates of clerics who wondered how many angels might dance on the head of a pin. Congress can take this matter away from both Sessions and the judges by enacting legislation rolling it back. Really it should be swept away entirely, along with the War on Drugs it purportedly assists, as failed policies which have corrupted the police and eroded public trust every bit as much and in the same way as Prohibition did in the early decades of the twentieth century, when civil asset forfeiture first became a major police tactic. It seems we never learn lessons once and for all, but have to forever relearn them.
― Ed.

 

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Not in My Back Yard

 

In some areas of the United States, particularly the countryside, gun owners can step out the back door of their house and practice shooting targets, and some do so without satisfying even the minimum safety requirements of local ordinances. This behavior falls under the heading of “Just because you can do something, doesn’t mean you should”. City dwellers may imagine that all rural homesteads are capacious enough to accommodate the whims of target shooters without endangering their neighbors’ lives or property, say 10 acres at least. That is not so. Many rural residential lots are 2 acres or less. Yet the law generally does not factor in lot size as long as the area is zoned agricultural or mixed use. Common sense and common courtesy should be a factor where the law leaves a gap, but unfortunately too many citizens possess neither quality. Combine that with gun possession and there will be the devil to pay somewhere along the line.

 

No target shooting
“No Target Shooting” sign located at mile 80.5 of the Seward Highway in Alaska, along 20 Mile Creek; photo by Lar. In some circles, this kind of thing passes for wit.
Discharging firearms on private property is a sensitive subject that gets tangled up in the Second Amendment to the Constitution when it really shouldn’t because of how the activity affects the safety, property rights, and quality of life of neighbors. The issue at hand is not a gun owner’s right to own guns and shoot them, but the right of the gun owner’s neighbors not to have to barricade themselves in sound-proof, bullet-proof houses, or to enjoy their property and the flora and fauna on it without having it all riddled by bullet holes. The Second Amendment guarantees the right “to keep and bear Arms”; it says nothing about discharging them responsibly. That is where state law and local ordinances step in, although in some places, again particularly in the countryside, they are far too lax. In many instances the decision by a government authority on whether a gun owner’s home firing range is safe and legal is left up to a judgment call made by a sheriff’s deputy who visits the property after being called by a distressed neighbor.

 


Some scenes from The Andy Griffith Show demonstrating why Sheriff Andy Taylor eventually issued Deputy Barney Fife only one bullet and insisted he keep it in his shirt pocket.

Enactment of a noise ordinance can help restore sanity to a neighborhood. It’s interesting to note that gun owners who are conscientious about safety advocate hearing protection for the person discharging a firearm, but rarely take into account how the noise affects those within earshot. Unlike the noise made by a lawn mower or even a loud stereo system, gunshots are an intimidating sound. Perhaps for some gun owners that is part of the appeal. A noise ordinance can also help restrict target practice to daylight hours, because as hard as it is to believe, existing private property firearm discharge ordinances often do not explicitly state that target practice after dark is not allowed. Apparently that is where common sense and common courtesy are supposed to fill in the gap.

 

Education of gun owners may help in a few cases, such as making them aware they are subject to reckless endangerment laws. Reckless endangerment includes things such as leaving a child or pet locked in a hot car, or disregarding safety rules in a dangerous workplace, as well as discharging a firearm without regard to where the bullets land. Some reckless endangerment transgressions are misdemeanors. Reckless endangerment with a firearm is a felony. Knowledge of that may change a few minds about forgoing the convenience and cheapness of stepping out the back door to blast off some rounds in order to travel miles away to spend money as well as bullets at a safe and legally instituted firing range.
Barn on North Haven
A New England style barn on North Haven, Maine; photo by Jim Derby. Never mind trying to hit the broad side of a barn, watch out for the people!
But you can’t talk sense to some people, the hard cases. For them, it appears, the only solution to keep peace and quiet in the neighborhood will be to have state and local laws that prohibit target shooting at any place but a legally instituted firing range. Can’t afford firing range fees? You can afford bullets, though, and they aren’t cheap. Still want the convenience, if not the cheapness, of stepping out your own back door to blast away? Fine, then go to the trouble and expense of acquiring the minimum amount of land that will allow you to qualify it as a legally instituted firing range. But these new laws will restrict the ability to target practice to only those of substantial means! Tough. There are lots of things in life that poor people don’t get a fair shake on, and if one of them is the ability to make their neighbors’ lives miserable, then so be it. Anyone of limited means who has moved out to the countryside with the dream of enjoying nature in peace and quiet only to have that dream shattered by the booming report of a nearby thoughtless neighbor’s gun firing, often repeatedly and at nearly all hours, and to satisfy no other purpose than that neighbor’s sense of fun or imagined readiness for the Apocalypse, will shed nary a tear when that neighbor has to jump through a few more legal hoops to ensure he or she behaves with common sense and common courtesy.
― Ed.

 

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