Here is one law professor’s argument against civil asset forfeiture law

This might be a bit of legalese, but it succinctly sums up the arguments against allowing the government to use civil procedures to seize property that just might be somehow linked to a crime, as mentioned in a prior posting.

In a 73-page article planned for publication in an upcoming issue of the Nevada Law Journal, David Pimentel, a law professor at Florida Coastal School of Law, lays out the case against civil forfeiture. Here is an excerpt, without adulteration or interpretation:

“Given the dubious policies behind facilitating property forfeitures, and the due process problems inherent in carrying them out, the more potent question is whether facilitating property forfeitures should be allowed at all. If the taking of such property is to be justified, or even tolerated, it must be for the most compelling public policy purposes, none of which can be demonstrated for facilitating property forfeitures.

David Pimentel

“The Supreme Court has upheld them, since the Palmyra case in 1831, and through the Bennis case in 1996, on the ground that the practice of in rem civil forfeiture is strongly entrenched in our legal history. Absent compelling policy reasons to support the practice, it presumably fell of its own weight. Only the Americans continue to pursue this practice with such intensity and zeal. As a result, only Americans are subjected to the self-serving overreaching of law enforcement, who never have to defend their seizures in the overwhelming majority of cases, and who are able to support these activities with the spoils of the practice.

“In light of all of this, Congress should go back to first principles and eliminate facilitating property forfeitures altogether. Their primary public policy justifications — duplicative deterrence and punishment, incentives to third parties to undertake precautions and policing — are the weakest, and the countervailing private property interests are the strongest. Facilitating property forfeitures appear to be a concept whose time has come, and gone.”

Elsewhere in the piece Pimentel writes: “The Fifth Amendment provides that ‘No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation,’ then notes that all too often prosecutors stomp on another part of the Fifth Amendment, the prohibition against self-incrimination, by basically extorting waivers of due process rights. This is done by using the threat of burdensome and excessively expensive litigation.

This illustrated by one of the more disgusting tales of woe from fighting overzealous bureaucrats, as related by the professor. Air charter operator Billy Munnerlyn had one of his planes seized in 1989 after, without his knowledge, he flew a customer carrying alleged drug money. Munnerlyn spent $85,000 on legal fees. He had to sell three other planes to finance getting back the one taken. When he did get it back it had $100,000 in damages, apparently due to the government search of it. But since the government has sovereign immunity, he could not sue for damages. Munnerlyn filed for bankruptcy and closed his business.

4 comments on “Here is one law professor’s argument against civil asset forfeiture law

  1. Nibot Mus says:

    Think that “in rem” legal actions against property are not new, but founded in our common law concepts. However, if sufficiently unjust, courts of equity in common law, which traditionally operated upon the conscience of the parties often intervened in “inequitable” results, mandating that such legal enforcements must be avoided at the peril of a party’s freedom. It schocked the conscience of the equity court!
    Equity and law courts were merged but concepts of common law equity prohibiting unconscionciable legal actions survive. Our strong protections of due process of law in the Constitutional Amendments support the age old respect for a moral law enforcement, in the insistence upon basic equity.
    Would appear that our legal systen has subordinated the concepts of equity, but this may be a reflection of our modern morality… what is right.
    After all, is law not but the reflection of the culture and character of its society?

  2. The law is too often not a reflection of culture and character but merely a sop to special interests and bureaucrats who want easier means to carry out what they think is they job. That’s why juvenile court judges too often think of these as social workers instead of judges of the law.

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  3. […] a 73-page article published in the Nevada Law Journal, David Pimentel, a law professor at Florida Coastal School of […]

  4. […] a 73-page article published in the Nevada Law Journal, David Pimentel, a law professor at Florida Coastal School of […]

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