TheAgitator.com
Me on Asset Forfeiture in Slate
Thursday, February 4th, 2010I mentioned last week that I’d have an update on the Anthony Smelley case, profiled in my Reason feature on asset forfeiture.
I have piece up at Slate today with a bit more on the case. Here are the portions not in the Reason piece:
Smelley’s case then got even stranger. At the preliminary hearing last February, Judge Headley actually ruled in Smelley’s favor. But under state law, Putnam County had an additional 10 days to amend its brief. Three days after his ruling, Headley mysteriously pulled himself from the case. Gambill thinks he knows why. “Several months ago, [the judge] asked the Putnam County prosecutor if he could have $5,000 from the forfeiture fund to buy some new AV equipment for his courtroom. He was turned down,” Gambill said. “Since then Judge Headley has had, well, I’ll just say he’s had a much different demeanor in forfeiture cases.” Gambill thinks that in his eagerness to question the county, Headley misstated state law during Smelley’s preliminary hearing, then took himself off the case once he realized his mistake.
Headley confirmed to me that he had made the AV equipment request. But he denied that the denial of his request for forfeiture funds had any bearing on his ruling. Maybe that’s true, and Gambill is wrong. But think about the impropriety of it all: A judge asked for $5,000 to upgrade his courtroom from a fund filled with money from defendants over whose cases he presides….
As for Anthony Smelley, he finally had his new hearing last Friday. But it could be another month or more to hear whether he’ll get his money back.
The whole asset forfeiture thing is full of wrong:
1) No trial required.
2) No proof required.
3) No justification required.
4) Accused required to prove innocence.
5) The accuser has a beneficial interest in the forfieture.
6) No independent oversight.
FA Hayek wrote in Road Serfdom about the Left’s disingenuous claims that it just wants to move past economic quarrels and focus on people and hugging trees, etc. Liberals and progressives think of nothing BUT economics (most notably, other peoples’ money they feel they have intrinsic claim to or power over).
Conservatives and libertarians MUST start doing a better job of explaining and defending and promoting (tirelessly, I might add) the free market system and the inextricable links between religious, political and economics freedom.
You gotta check out this article on that very topic: http://rjmoeller.com/2010/02/the-economics-of-mere-conservatism-part-i/
@ Aresen
In other words, the governement is going to fight tooth and nail to retain the power to steal at will.
Radley, its good to see your increased presence in the media, outside the liberterian or conservative outlets.
Which, as any educated person knows, is usually impossible. You can’t prove a negative. Take Smelley here, for instance. Can he prove that he *wasn’t* going to buy drugs? It’s impossible to prove that. That’s why our system of justice is supposed to instead demand the proof of *guilt*.
Very good article, Radley, concerning Asset Forfeiture.
As a countermeasure to potential Asset Forfeiture actions, I would encourage travellers to carry no more than $500.00 in cash, and make sure that whatever car you are driving has a lien filed against it by a lender.
Both countermeasures will do much to discourage frivolous asset forfeiture actions by the LEO community.
As such, Mr. Smelley would have been much better off to have carried his $17,500 in the form of a bank Cashier’s Check, made out to himself. He could legally tender it to a potential payee by merely endorsing it to the seller.
Asset forfeiture goes back to the freakin SC. In 1833, the court decided the BoR does not bind the states and that keeps the 8th amendment from protecting the us against state level theft. The feds have no asset forfeiture authority – no power was ever given to the feds to take property, no eminent domain, no asset forfeiture. The feds have no constitutional authority to exact punishments except for the few instance enumerated in the Constitution. Those are 1) counterfeiting of current coin and securities, piracies and felonies on the high seas, violations of the law of nations, and treason. If you don’t believe me, answer this, “Why was it necessary to GIVE Congress the power to punish treason by an explicit enumeration of that power in the Constitution?” “Why didn’t Congress have that power just because?”
If State constitutions do not explicitly enumerate an authority over asset forfeiture then the power does not exist. Too many folks just don’t understand the system(s) of government that are supposed to operate in the nations of this Union.
The people have been screwed by the government since the first meeting. If you don’t learn the rules and hold their feet to the fire, every freakin politician will BF U.
Tiocfaidh ar la!
Yes, Whim, the proper response to blatant crime committed by the system and its minions is to cling ever more tightly to the system.
I found some property on Craigslist I wanted to buy: it was out of state, I did not want to scare off the seller, and I wanted to see the property yet not spend needless days (or weeks!) idle while waiting for a bank wire or cashier’s check to clear.
So, I loaded up a rental car with ~$30,000 in cash, took my suitcase and pistol, and drove across several states to meet the seller in person.
The seller’s happy, I’m happy, and we both live in the Land of Liberty, the Land of the Free… and yet I was understandably much more concerned about an encounter with a law enforcement agent than any traditional highwayman.
#8 Woog:
By all means, carry large amounts of cash and a firearm in interstate travel to consummate a commercial transaction.
That’s never a problem. Right.
How does that work better than a wire transfer of good funds from your bank to the seller’s bank for a commercial transaction?
My remedy just ensures that the LEO’s have nothing to hold onto for Asset Forfeiture actions.
They definitely do not want a vehicle with a sizeable lien, and $500 cash in chump change in their view.
This strategy will work until someone gets the Asset Forfeiture laws changed…..
Name any other method which will work with a “here’s your payment, thanks for the title/keys/thing” approach which isn’t horribly vulnerable to counterfeit fraud (ala cashier’s check) or requires days/weeks to verify proper payment.
#10 Woog:
A Wire Transfer.
Your bank will not typically wire money to another party without good funds being on deposit at your bank, i.e., you cannot deposit a personal check for $30,000, and then immediately wire the money out of the bank to a third-party, unless you have sufficient good funds to cover the $30K.
A wire transfer is immediate credit to your counter-party, and other than an clerical error, cannot be repudiated by the sender.
… except that I’d specifically asked the banks in question, and was told there could be several days’ hold time before the transfer could be cleared. Whether true or not, it was the answer I was given and was not acceptable.
So, it’s back to cash.
Woog #12:
The last house I sold, we closed on the house in the late a.m, and the wire transfer of the sales proceeds from the Closing Company was sitting in my bank account that afternoon.
You or your counter-party may be dealing with a particular bank’s internal policy.
Cash still works, if the police don’t take it away from you on some pretext.
Federal Reserve Notes, a.k.a. “Cash”:
Legal Tender for all debts, public and private.
Asset Forfeiture is becoming more and more pervasive in this country. To
see the 800+ pages of property that our Gov. is trying to permanently
confiscate from its citizens see “Forfeiture.gov”. There are more than
250 Federal Statutes that authorize forfeiture…and innocent property
holders can get caught up. Your “due process” as an innocent owner
consists of filing a claim (following absolutely strict guidelines—screw up, you lose)—then the Gov. (for having the audacity to file a claim) will then start a judicial law suit against your property, pretty much requiring you to hire an attorney to deal with motions, discovery, jury selection, etc. (the Gov. WILL NOT pay for your attorney up front, and
no judge will even begin to listen to your side of the story until trial)–
and even worse, if your innocent party is named in a criminal indictment, the Gov. will stay (stop) the civil suit—and require you to
wait until the conclusion of the criminal trial, to again file a claim and
hire an attorney to prove this is your innocent property. The Gov. has
held that YEARS is not too long to wait to get your day in court.
The courts have held that this is ADEQUATE DUE PROCESS, AND YOU
ARE NOT HARMED BY THIS….as long as you, one day, at some point
get to present evidence before your property is permanently titled to
the United States Government. Value of the property is irrelevant…
hardship to you is irrelevant (unless under a very high hurdle—USC
18 983). The Gov. takes, holds, forfeits, then praises themselves for
how much they’ve successfully grabbed.