Listen: United States, Bennis, Michigan discussed on First Mondays
"It could be in this as in this case, a vehicle of some sort, and in some cases, it's done as part of a criminal sentence. And so if you are convicted of a crime, you might at sentencing be subject to forfeiture now. There are also civil procedures these and they arise under local state and federal law, depending on the jurisdiction in which the person may be later following conviction be subject to a civil proceeding or in many cases, not be charged or convicted at all of a of a crime and still be subject to civil proceedings, and if you own a car and somebody else uses it to transport drugs in theory that car could still in being forfeited, even if you had no knowledge of that. That is correct. Yes. And so, you know, at one of the quintessential examples of this case at this comes out of a case called Bennis versus Michigan, which was due process case rather than excessive fines case number of years ago where the husband had used the car to engage a prostitute. And the car was forfeited even though a portion of the car was owned by the wife, who, of course, did not have for warning of this criminal activity and so. So and the reason that this is we allow this raid there's some kind of like it's a legal fiction like this is called using sort of law Latin an in rim proceeding. That's actually proceeding against the property like the property is guilty rate. That's sort of. That's it's yes crazy rate fiction is it's the property is the defendant, and that has all sorts of repercussions that we can talk about. But the so the you end up with these really incredible case names, you know, like United States versus eight thousand pounds of shark fins or United States versus a home located at this given address or vehicle with this VIN number. So it's this really interesting legal fiction that the property itself is the wrongdoer rather than the owner of the property and procedurally, it's really complicated in many places, but ultimately. The general structure of a civil asset forfeiture is that to seize the vehicle in the first instance, the police have to have probable cause that the the property is related in some way to criminal activity. It might be cash that is used for some sort of sale a home where a sale occurred or business where sale Kurd that kind of thing. And once they have that problem caused and there's a hearing at which the and this varies a bit from jurisdiction address diction. But where the once the state proves typically by a preponderance there's one or two places where it's clear and convincing evidence that the the item in question wasn't fact related to criminal activity, the burden shifts to that the property owner to prove their innocence. And so it's this very bizarre setting in which burdens get flipped. There's not a beyond a reasonable doubt standard being used there as I said earlier, in many cases, there are no even chart criminal charges filed. Against the property owner our convictions obtained and so this has become an area where a lot of people are concerned about government overreach. Yeah. And there's a sort of a profit motive a lot of local police departments, you know, finance directories out of this. But of course, this is in the background of this is part of the case. But it's not it's sort of exactly what the case is about. So what is the legal issue that the case is extensively about well. It's density the cases about whether or not the excessive fines clods should be incorporated against the states.."