Civil Asset Forfeiture
15 Dec 2009, 6:33 pm
Civil asset forfeiture is the confiscation of property by the government when they consider it a civil rather than a criminal case. Seizure occurs when the government takes property. Forfeiture means the legal title is transferred to the government. The perpetrator is the property rather than the person. In normal civil cases, one person sues another person for something the other did, such as not fulfill a contract. But when the government uses civil forfeiture, there is no contract violation. The government also does not need to prove guilt. There is only some property which is considered to be an offense or associated with an offense, and the government just seizes it. Sometimes the police just keep it; usually, they sell it and keep the money.
Civil forfeiture is usually used for drug-law enforcement, but increasingly it is used for other laws, such as prostitution, shoplifting, or even legal activities. The government only has to suspect that the property is being used in connection with some activity that is either illegal or claimed to be illegal. The government sues the property, not the owner, and it is then up to the former owner to prove that the property was not used illegally. The former owner has to pay a nonrefundable bond of 10 percent of the value of the property and pay attorney fees that can amount to up to $100,000. And if the government thinks the money you use to pay your lawyer is also tainted, they can seize that too, so it becomes impossible to hire a lawyer.
The property seized can be cash, cars, real estate, or a business. Often, the owner was not aware that a tenant or one's child or even a stranger was using drugs in one's property. Sometimes, just having the property, such as a large amount of cash, is sufficient to have it seized. Cash is especially vulnerable, since most paper money has traces of cocaine or other drugs.
The ability to confiscate property without having to prove guilt creates a perverse incentive for the police to seize property, since they get to keep it. If they break into a house and the owner, thinking the intruders are thieves, takes hold of a gun to defend himself, the police can then shoot the resident. In Ventura County, California, a homeowner was killed this way, and no drugs were found in his property. The police can get away with this because 80 percent of the seizure victims are never charged with a crime, and the seizure victims do not have the constitutional protection that criminal defendants have.
_________________
"I Would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it."
-Thomas Jefferson
Adopted mother to a cat named Charlotte, and grandmother to 3 kittens.
15 Dec 2009, 11:21 pm
In Virginia, thanks to the VT shooting, they now say if you are sent to the loony bin on a TDO (Temporary Detention Order...for psych evaluation), your right to keep and bear arms is suspended indefinitely.
A judge can restore it, but that means YOU must go to court and PROVE (with expert testimony) that you are not a danger to society and should have your rights reinstated. Right now, if submitted for a TDO hearing, you can opt to volunteer to be sent to the hospital, but you have legal counsel who will discuss your rights and options as well as inform you of the legal consequences of volunteering to be committed for evaluation.
To save money, the state wants to make it so a person who volunteers can just do so without a hearing. Problem is that even if you inform them of their rights and consequences on a form they must sign, if a person is capable of consenting to be held for evaluation, doesn't that imply they are not a danger to society? Can a medical doctor be trusted to ensure every voluntary committal is aware of the consequences of their choice? In an effort to save money, the state is going to circumvent what little due process exists to ensure rights are not taken away without good cause.
16 Dec 2009, 12:50 am
Not necessarily, although so far as is pertinent to the question you intend (whether they are a danger by virtue of mental incompetence), then the answer must be that they cannot be. They are either mentally competent and should not be subjected to involuntary committal or treatment (for mental illness or psychiatric disorder) or alternatively they are not competent and cannot consent.
John_Browning
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16 Dec 2009, 2:35 am
A judge can restore it, but that means YOU must go to court and PROVE (with expert testimony) that you are not a danger to society and should have your rights reinstated. Right now, if submitted for a TDO hearing, you can opt to volunteer to be sent to the hospital, but you have legal counsel who will discuss your rights and options as well as inform you of the legal consequences of volunteering to be committed for evaluation.
To save money, the state wants to make it so a person who volunteers can just do so without a hearing. Problem is that even if you inform them of their rights and consequences on a form they must sign, if a person is capable of consenting to be held for evaluation, doesn't that imply they are not a danger to society? Can a medical doctor be trusted to ensure every voluntary committal is aware of the consequences of their choice? In an effort to save money, the state is going to circumvent what little due process exists to ensure rights are not taken away without good cause.
Is this just a Virginia law or nationwide? Some sort of references cited would be helpful too.
_________________
"Gun control is like trying to reduce drunk driving by making it tougher for sober people to own cars."
- Unknown
"A fear of weapons is a sign of ret*d sexual and emotional maturity."
-Sigmund Freud
16 Dec 2009, 9:35 am
A judge can restore it, but that means YOU must go to court and PROVE (with expert testimony) that you are not a danger to society and should have your rights reinstated. Right now, if submitted for a TDO hearing, you can opt to volunteer to be sent to the hospital, but you have legal counsel who will discuss your rights and options as well as inform you of the legal consequences of volunteering to be committed for evaluation.
To save money, the state wants to make it so a person who volunteers can just do so without a hearing. Problem is that even if you inform them of their rights and consequences on a form they must sign, if a person is capable of consenting to be held for evaluation, doesn't that imply they are not a danger to society? Can a medical doctor be trusted to ensure every voluntary committal is aware of the consequences of their choice? In an effort to save money, the state is going to circumvent what little due process exists to ensure rights are not taken away without good cause.
Is this just a Virginia law or nationwide? Some sort of references cited would be helpful too.
It's VA law...pushed through shortly after the VT issue of the shooter having been sent for evaluation (but being found sane) before he did the shooting. Never mind that it wouldn't have kept him from getting guns or resulted in the seizure of what he already owned.
4) An individual who has a temporary detention order (TDO) no longer immediately loses their gun rights. After the TDO evaluation period, if the individual in question voluntarily commits themselves, they will be warned that by doing so they will lose their gun rights. Otherwise if a judge makes a determination that the person requires treatment on either an inpatient or outpatient basis after the TDO evaluation period, said individual loses their gun rights. Finally, there is now a provision that will allow a person to petition the Court to get their gun rights back once they are cured or were incorrectly diagnosed. If they are turned down by the court, they can appeal to a higher court. VSSA and other gun rights organizations worked hard to insure the last provision was part of the final legislation.
This summary is flawed. You lose the rights upon issuance of the TDO either in involuntary commitment or voluntary commitment. A TDO hearing either subjects you to a 72-hour evaluation period or cuts you loose. It does not happen AFTER you've spent 72 hours in evaluation.
Here are the current statutes:
B. At the commencement of the commitment hearing, the district court judge or special justice shall inform the person whose involuntary admission is being sought of his right to apply for voluntary admission for inpatient treatment as provided for in § 37.2-805 and shall afford the person an opportunity for voluntary admission. The district court judge or special justice shall advise the person whose involuntary admission is being sought that if the person chooses to be voluntarily admitted pursuant to § 37.2-805, such person will be prohibited from possessing or purchasing a firearm pursuant to § 18.2-308.1:3.
§ 18.2-308.1:3. Purchase, possession or transportation of firearm by persons involuntarily admitted or ordered to outpatient treatment; penalty.
A. It shall be unlawful for any person involuntarily admitted to a facility or ordered to mandatory outpatient treatment pursuant to § 19.2-169.2, involuntarily admitted to a facility or ordered to mandatory outpatient treatment as the result of a commitment hearing pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, or who was the subject of a temporary detention order pursuant to § 37.2-809 and subsequently agreed to voluntary admission pursuant to § 37.2-805 to purchase, possess or transport a firearm. A violation of this subsection shall be punishable as a Class 1 misdemeanor.
B. Any person prohibited from purchasing, possessing or transporting firearms under this section may, at any time following his release from involuntary admission to a facility, his release from an order of mandatory outpatient treatment, or his release from voluntary admission pursuant to § 37.2-805 following the issuance of a temporary detention order, petition the general district court in the city or county in which he resides to restore his right to purchase, possess or transport a firearm. If the court determines that the circumstances regarding the disabilities referred to in subsection A and the person's criminal history, treatment record, and reputation are such that the person will not likely act in a manner dangerous to public safety and that granting the relief would not be contrary to the public interest, the court shall grant the petition. Any person denied relief by the general district court may petition the circuit court for a de novo review of the denial. Upon a grant of relief in any court, the court shall enter a written order granting the petition, in which event the provisions of subsection A shall no longer apply. The clerk of court shall certify and forward forthwith to the Central Criminal Records Exchange, on a form provided by the Exchange, a copy of any such order.
Now, the bold section in the latter statute is critical. If you were involuntarily committed by TDO and they found nothing wrong, at least you got due process in that a hearing was conducted to have you involuntarily committed. If you were involuntarily committed by TDO and they found something wrong, there is at least an argument for why your gun rights should not be restored without expert testimony in your favor.
However, if you VOLUNTEER for the TDO and nothing is found wrong with you, what is the burden of proof for restoration of your rights? Arguably, you should just be able to tell the judge that since you volunteered for evaluation and nothing was found wrong, no more proof is needed, but do you think a judge will do just that? If not, you have to go get evaluated by an independent expert (money), get a lawyer (money) and fight the system to restore what was taken by your choosing to allow the state to subject you to evaluation.
And, I agree with the lawyer who discussed this matter with me recently...if you can volunteer to be held for a 72-hour psychiatric evaluation, there likely isn't the evidence to involuntarily commit you; hence no penalty should attach. Very much a Catch 22. You can't be crazy if you say you are crazy.
