Why hasn&#39;t civil asset forfeiture been ruled unconstitutional? If news articles like this and this are accurate, then U.S. law enforcement can confiscate private property, including cash, without convicting someone of a crime – or even charging them – under a theory called "civil asset forfeiture." The Constitution (5th and 14th amendments) clearly states that no one shall be deprived of life, liberty, or property without due process of law. This is clearly depriving citizens of property, and there appears to be no due process, so how has civil asset forfeiture survived challenges in the courts? That is, why isn't this a violation of the 14th and 5th amendments? (Last sentence added and italiziced to distinguish from other question How exactly does civil asset forfeiture work in the United States?)
Civil forfeiture typically pits the government against property, not the government against an individual, and in the US (also anywhere else), only people have rights: property has no rights. The first relevant instance to reach the Supreme Court was an early case, The Palmyra (25 US 1), where a ship was confiscated because it had been used in privateering against the US. Although the owner had been convicted of nothing, the court still allowed the confiscation since The thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing, and this whether the offense be malum prohibitum or malum in se The defendant here is the ship itself, not the owner of the ship (known as in rem proceeding). The case law is replete with cases like "US v. $500,000", and such forfeitures have long been part of the arsenal to be used against wrong-doing, a law authorizing this having been one of the first acts of the US Congress, especially applicable to ships and cargo involved in piracy. The courts have repeatedly allowed such confiscation, at least in certain circumstances. In one more recent case, Van Oster v. Kansas, 272 U.S. 465, the court stated that It has long been settled that statutory forfeitures of property intrusted by the innocent owner or lienor to another who uses it in violation of the revenue laws of the United States is not a violation of the due process clause of the Fifth Amendment followed by a huge list of citations. Because of the doctrine stare decisis (courts respect prior rulings in similar cases), once a pattern is deemed constitutionally acceptable, it is very hard change that interpretation of the law. It should be noted that J. Thomas recently hinted in a dissent that there is a Due Process problem with civil forfeiture, raising strict scrutiny type objections to civil forfeiture, specifically that forfeiture was typically more narrowly applied – limited to customs and piracy, and justified by necessity, because the party responsible for the crime was frequently located overseas and thus beyond the personal jurisdiction of United States courts also observing that founding-era precedents do not support the use of forfeiture against purely domestic offenses where the owner is plainly within the personal jurisdiction of both state and federal courts Essentially, the reason why civil forfeiture (in its current revenue-generating incarnation) hasn't been ruled unconstitutional is that a persuasive argument has not been made to that effect. The court can't just decide this on its own, and in the most recent case, the constitutional issue was only raised at the Supreme Court, not in the Texas appellate court where it should have been raised. The most significant problem is that it isn't clear what constitutes "due process of law". There is, in all jurisdictions, some kind of legal process (see this report for an overview of the kinds of process involved). The standard of proof that allows forfeiture is pretty low (being a civil case, it is not "beyond a reasonable doubt"), and there are various impediments discouraging anyone from suing to prevent forfeiture (which until 2000 included a substantial bond requirement and the threat of having to pay the government's attorney's fees if you lose). Since there is a process whereby forfeiture can be challenged, a more sophisticated argument is needed, based on Due Process.
Criminal charges are filed and prosecuted by the government, on behalf of the public, and there is no requirement for approval or cooperation by the victim. As a policy matter, a DA may decide to not charge a person in case the victim is unwilling (though less so in cases of domestic violence), perhaps because of the widespread impression that the victim has to "press charges" (which indeed they would have to do in the case of private prosecution, which is no longer allowed in the US). The alleged victim's reddit exchanges on the topic are here. An uncooperative victim does not make a good witness, even if they are compelled to testify. The police statement that they cannot pursue an investigation should not be interpreted as a statement of law, it's probably a statement of policy and practicality.
Note the following argument: the landmark 1819 case of McCulloch v. Maryland, which ruled that state officials cannot obstruct “the measures of a government [the federal government] created by others as well as themselves.” “In other words,” Kalt and Amar summarize, “a single state cannot use its power to derail the functioning of the United States.” (Amar is a Yale constitutional law professor, Kalt, his student) On the other hand, you have the argument by a Hofstra constitutional law professor that the 25th amendment can be applied when the President is occupied with a criminal case, ergo, the functioning of the United States can be carried on unimpared. At the end-of-the-day there is no absolute answer as it is still being argued academically and has never been specifically settled by the courts.
I have bad news. California's vandalism law prohibits maliciously: defacing property with graffiti defacing property with inscribed material damaging property destroying property Chalking the sidewalk probably doesn't sound very malicious, but maliciousness includes “an intent to do a wrongful act, established either by proof or presumption of law.” So the questions is whether you intended to do a wrongful act -- meaning that you intended to do the act, which happens to be wrongful, not that you intended to act wrongfully. So unless you drew on the sidewalk accidentally, the malicious-intent requirement isn't going to help you. So then you have to ask if your conduct is described by the statute. In Mackinney v. Nielsen, the Ninth Circuit said that sidewalk chalking did not violate the law, but California has since amended the law to add the "deface with graffiti" language. I haven't seen any chalk cases since then, but another case, In re Nicholas Y., from the Second District, dealt with someone who used a marker on a window. He argued that it could be easily erased, but the court said it was still vandalism because: it "mars the surface with graffiti which must be removed in order to restore the original condition" the definition of "deface" "does not incorporate an element of permanence" "marring of the surface is no less a defacement because it is more easily removed." Given that language, I'd argue that the vandalism statute includes sidewalk chalking. But one important element here is that most sidewalks are owned or controlled by the government, so any effort to restrict "expressive conduct such as writing with chalk" (Guilliford v. Pierce County) expressive activity" there must comply with the First Amendment. The government has varying degrees of latitude on the restrictions it can impose, depending on the character of the space involved. So in a courtroom, whose function is incompatible with free-wheeling public debate, a judge can set quite a few rules about how people may speak. But sidewalks are considered a "public forum," where the government's ability to regulate speech is a lot more limited. So how does the First Amendment apply? There's a D.C. Circuit case (Mahoney v. Doe) dealing with abortion protesters who wanted to use chalk on the streets and sidewalks outside the White House. Police told them they would be arrested for violating D.C.'s defacement statute, so they brought a First Amendment challenge. The court upheld the law, saying that it satisfied all three prongs of the public-forum test: The law must be content neutral, meaning that it prohibits conduct without reference to what is being said. The Court said the defacement statute was content neutral because people could be prosecuted regardless of what they wrote or drew. The law must be narrowly tailored, meaning that it serves a significant governmental interest and does not restrict more speech than is necessary to achieve that goal. The Court said the defacement statute was narrowly tailored because it served the government's interest in maintaining the aesthetic appeal of the area in front of the White House and didn't restrict any speech that does not deface public property. The law must leave open ample alternatives for communication, meaning that even if you can't express yourself in the way restricted, you still have meaningful opportunities to express yourself. The Court said the defacement statute law allowed adequate alternatives for communication because the group could still congregate, march, speak, hold signs, and hand out leaflets. There's an interesting wrinkle there in terms of whether the interest in aesthetics is heightened because we're talking about the White House, but generally speaking, aesthetic concerns can still justify speech restrictions. So the bad news is that unchaining your inner six-year-old may subject you to criminal liability. That leaves the question of whether you want to unleash your inner teenager and do it anyway. This could help put you in a frame of mind for making the decision.
Assuming that all of these locations are in the same state, this is not an issue of federal law and is not governed by the U.S. Constitution. The geographical jurisdiction of state and local law enforcement officers is exclusively a matter of state law and has no single correct resolution. Different states handle the issue differently. Even if state law or the state constitution prohibited the arrest, this violation of state law or the state constitution, would not give rise to a federal claim for violation of civil rights under 42 U.S.C. § 1983, which may vindicate only federal rights, and could not form a basis for a collateral attack on a state court conviction in a federal court habeas corpus petition which is likewise limited to vindications of federal law rights. Any remedy would have to be secured in the state court system invoking state law rights (assuming for sake of argument that state law provides such a remedy), or in a diversity lawsuit in federal court applying state substantive law, if the defendant was from another state and the amount in controversy was in excess of $75,000.
Of course it doesn't work. You haven't discovered an end-around to property ownership I gave someone a car and want it back (they refuse) You no longer own this car. It is now titled in their name. Your interest in the car is now exactly zero whether or not they paid for it. I use a shell company to buy my own debt Okay. This has nothing to do with the car. You're now out of the cash it took you to set up this new entity. How are you doing this? I assume it means paying off your creditors with money you already have. You will also have to come up with some type of bogus documents that explain to the future court why this was even done. If you have the money, why do you have debt? My shell company sues me for conveying the car to conceal it from creditors Um, Ok. Now you're also out filing fees. Let's assume you know how to do this without paying an attorney to do it for you. I settle Makes sense, since you're suing yourself. The shell company now gets a court order to seize the car Seize the car how? This is a stretch. A judgement would be against you for the value of the car. You can't settle a lawsuit using assets you do not own. A court won't order something repossessed because of an unrelated squirrelly lawsuit. An exception would be a bankruptcy court that rules the item was sold or disposed of outside the court's orders. I would expect an astute court to hit you with contempt or sanctions for trying to use it to further your interests with some sort of end-around to property ownership. Expect more fees for this use of the court's time. The shell seizes the car No. Now I have the car back No.
The Limitations Act of 1980 and its predecessors apply to civil actions brought by private individuals. It is not a criminal statute of limitations. I will answer with regard to civil cases, rather than criminal ones. Section 40 of the Limitations Act of 1980 incorporates by reference a schedule of transition provisions that govern this question, and when a cause of action is not governed by the 1980 Act it usually defaults to the predecessor 1939 Act. The problem is both bigger than just the fraudulent breach of trust unlimited statute of limitations under Section 21 of the Act, since the deadline only runs from when an action accrues that can be long after the act giving rise to the claim actually happened, and smaller, because the act (and also its predecessor 1939 act) allow statutes of limitations to be extended for equitable reasons under certain circumstances. The 1881 Limitations Act, Section 27 had an exception to the general rule for concealed fraud tolling the statute so long as it was concealed, which probably carried over into the 1939 Act. Section 9 of the transition provisions states in the relevant part that: (1)Nothing in any provision of this Act shall— (a)enable any action to be brought which was barred by this Act or (as the case may be) by the Limitation Act 1939 before the relevant date; The 1939 Act limitations ran from when the act was committed, not when it was discovered, until the 1963 Act changes that. A full analysis of the breach of trust issue is found in this law review article.
In a civil rights action in which someone prevails (which is by no means certain in this case, but not impossible either), there is at a minimum an award of nominal damages (i.e. $1) and the reasonable attorney fees and litigation costs incurred in the lawsuit. A jury could also award a prevailing party non-economic damages, and/or exemplary damages (a.k.a punitive damages) in connection with a violation of civil rights. There might also be injunctive or declaratory relief stating that this was a violation of civil rights and requiring the government to adopt practices to prevent harm going forward. It is hard to see how there would be any economic damages at issue in this case, but it isn't impossible to imagine some circumstances in which they could be proven, perhaps.