Asset Forfeiture

Rand Paul Tries to Limit the State's License to Steal

The Kentucky senator's forfeiture reform bill would curtail legal theft.

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In 2003 a Nebraska state trooper stopped Emiliano Gonzolez for speeding on Interstate 80 and found $124,700 inside a cooler on the back seat of the rented Ford Taurus he was driving. Gonzolez said the money was intended to buy a refrigerated truck for a produce business, but the cops figured all that cash must have something to do with illegal drugs.

Although there was not much evidence to support that theory, under federal forfeiture law the government managed to keep Gonzolez's money based on little more than a hunch. A bill introduced last week by Sen. Rand Paul (R-Ky.) would make that sort of highway robbery harder to pull off.

Civil forfeiture allows the government to take property from people who are never charged with a crime, let alone convicted, based on the fiction that the property itself is guilty. Gonzolez's case, for instance, is known as U.S. v. $124,700 in U.S. Currency.

A federal judge initially rejected that forfeiture. But in 2006 the U.S. Court of Appeals for the 8th Circuit concluded that the government had "demonstrate[d] by a preponderance of the evidence that there was a substantial connection between the currency and a drug trafficking offense."

Preponderance of the evidence, which requires showing that the government's theory is more likely than not to be true, is a much lower hurdle than proof "beyond a reasonable doubt," the standard used in criminal cases. In between is "clear and convincing evidence," the standard that Paul's bill, the Fifth Amendment Integrity Restoration (FAIR) Act, would require for federal forfeiture.

Nebraska, where Gonzolez was pulled over, actually requires proof beyond a reasonable doubt to complete a forfeiture under state law. But police can avoid that requirement, as they did in his case, through the Justice Department's Equitable Sharing Program, which allows them to take advantage of looser federal standards and keep up to 80 percent of the proceeds.

A 2010 study by the Institute for Justice, a public interest law firm that defends property rights and other civil liberties, found that "equitable sharing" is especially common in states with relatively strict forfeiture rules—strong evidence of what I.J. calls "policing for profit." The FAIR Act would abolish equitable sharing, thereby preventing police and prosecutors from evading state reforms aimed at reducing forfeiture abuse.

Those reforms include channeling forfeiture revenue to functions other than law enforcement, a change designed to eliminate the profit motive that warps police priorities. Similiarly, the FAIR Act would assign federal forfeiture proceeds, which last fiscal year totaled more than $2 billion, to the general fund instead of the Justice Department.

The FAIR Act also beefs up protections for innocent owners. It requires the government to prove that the owner of an asset allegedly used to facilitate a crime either himself used the property for illegal purposes, consented to that use, or was "willfully blind" to it.

Current law puts the burden on innocent owners to show they did not know about the illegal use or "did all that reasonably could be expected under the circumstances to terminate such use." In other words, property owners are guilty until proven innocent, turning an ancient principle of justice on its head.

These reforms should not only make it harder for the government to take innocent people's property but also discourage it from trying. The latter effect is important because fighting a forfeiture is arduous and expensive—so expensive that it typically costs less simply to let the government keep its ill-gotten gains.

Last year, after Russell Caswell succeeded in blocking the federal government's forfeiture of his Massachusetts motel based on drug offenses committed by a tiny fraction of his guests, he said he could not have done it without the pro bono help of the Institute for Justice. As Caswell noted, "The government goes after people they think can't afford to fight." The FAIR Act promises to make such contests less lopsided and less common.

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110 responses to “Rand Paul Tries to Limit the State's License to Steal

  1. Can we add a clause where it’s a felony to attempt a civil forfeiture procedure without a criminal conviction?

    1. This works pretty well:

      No person shall be…deprived of life, liberty, or property, without due process of law;

      Of course it’s nullified by the FYTW clause.

    2. Add in restitution to the aggrieved party equal to the amount stolen by the cops and we have the beginnings of some control on the thug branch of leviathan inc.

      To put a point on it, the restitution comes out of the cops paycheck.

  2. I find it ironic that we have a Constitutional amendment that says the government can’t even LOOK at our stuff without a good reason, yet we have laws that allow the government to TAKE stuff without a good reason.

    1. So long as they don’t look at it, where’s the issue?

      I keed.

      1. An interesting experiment would be to change the process so that the loot is given away (to charity or the general public) rather than kept by the cops. That way we would know if the cops are taking the stuff to punish the bad guys, or taking it for their own selfish reasons.

        See? I can keed too!

        1. change the process so that the loot is given away (to charity or the general public)

          Even better, give it to young new Americans fleeing violence in Central America.

        2. Cronies would line up, wringing hands and salivating at the opportunity to funnel those proceeds right back to those who would steal from us under the color of law. Think “F.O.P Charitable trust”, or “E.P.A Global Warming Endowment Fund”..

        3. Since most people think government and society are one and the same, they believe that the police keeping the loot is the same as we the people keeping the loot. Because we the people, government is us, we are government and all that nonsense.

        4. Better idea, make authorities engaging in civil forfeiture subject to RICO suits brought by the public.

        5. The money should go directly to fund social security, Medicare, and then Medicaid. After due process of law of course.

      2. Justice is blinded.

    2. We have a constitutional amendment that prohibits them from depriving you of your property without due process of law; they ignore it.

      1. No, they jsut redefined what the due process is until it was meaningless.

        1. Yeah, potayto, potahto.

        2. They’ve also taken the due process away from the deprivation of life thing too. Thanks Barry!

  3. One of the few in Washington with common sense. Rand for President.

    1. Gene,

      Rand is a professional politician. If he ever becomes President (which I doubt), you will find out just how much “common sense” he really has.

      1. Who would you like to see as president?

        1. Who would you like to see as president?

          Or which unpaid political activist would you prefer to see overturn our current political system and by what method?

        2. Someone who wouldn’t run for the presidency. I rather see the draft reinstated for the congress and executive than for the military.

          1. Yes. I read in ancient Athens people were drafted into office for two terms max. I would be a better president than almost anyone. I’m honest, moral, and hate government.

        3. Pathogen,

          No one out there that I can see. The people that are likely to run are long time, professional, career, habitual politicians who are addicted to the power broker game.

          The Clintons are an excellent example. If they were addicted to power politics any more, their collective ego would inflate, and they would fly away into outer space, never to be heard from again. Of course that would be wonderful, but of course it won’t happen. And yet Mrs. C. will probably run.

          It should be a law (which it probably never will be), that anyone who has run for President before, and lost, will not be allowed to run again. That should include anyone on the ticket as a VP, such as Ryan.

          Ideally, Presidents should be elected directly by the people, should not be affiliated with any damn party, and should serve six years. Six years and you are gone, and never to be seen again in politics. They could write their memoirs, and tend their libraries. Of course none of this will happen, but it should.

          1. You’re saying MEXICO has a better presidential system than us?!?!

            BURN HIM!!!

            Seriously, though, I like how you think. Though I think limiting a person’s ability to run again may just strengthen political machines and scare off people from even trying.

          2. This is the most agreeable thing I’ve seen you write, OTRTM.

            Funny you mentioned the one six-year term presidency as superior to ours. I’ve had the same thought.

      2. As apposed to what all the amateur politicians running for president? He at least had another successful career being a doctor.

        1. He should have stayed out of politics, and continued to be a doctor, where his service to humanity would be far greater than anything he is doing in the murky world of power politics. He has no real credentials in politics anyway, and not even as a potential statesman.

          1. You’d be right if we didn’t live in a world where power politics unfortunately not only matter, but dominate. Were we still an informed and participatory republic, I’d agree with you.

            But forgive us if your sanctimonious cant on the cesspool of professional politics falls on deaf ears. If there is to be any hope that the bureaucracy can be neutered and ultimately destroyed, we have to play the stupid factional politics game because a) human nature demands it and b) the progressives have been at this for two hundred years whereas libertarians and conservatives didn’t really figure out what we were up against until Goldwater. Prior to Teddy and Woodrow, liberty-inclined Americans still had ample reason to believe that the “fundamentals of the republic are strong,” or something.

            Not so today, and thus we must play. Overwrought paeans to principle as a way of condemning someone like Rand is frankly stupid and nonsensical.

          2. He’s a “professional politician” AND “he has no real credentials in politics anyway”? Which is it?

      3. As apposed to what all the amateur politicians running for president? He at least had another successful career being a doctor.

      4. I would gladly take my chances with him, I see no one else on the scene who comes close. I realize he’s not a true “libertarian” but he sure as fuck seems like a positive step in that direction.

      5. So the perfect is the enemy of the good. He’s the only guy with a semi-legit shot who’s even talking about fiscal responsibility and improving civil liberties.

  4. Does Bundy get to keep our lands?

    1. No one has given any reason why so much land has been taken by the Feds and not disposed of. The Feds have no use for most of that land and should be forced to sell off property west of the mississipi until the proportion of land west of the river in federal hands is equivalent or less than the proportion east of the river.

      1. Why do you want to bring back *nuclear weapons testing*? WHY?!

  5. Rand Paul Would Limit the Government’s License to Steal

    For about a second there, I thought this would be about a constitutional amendment to limit the amount of taxes that could be collected, but then I remembered we’re talking about a libertarian-ish Republican, not a hardcore an-cap or even semi-hardcore minarchist.

    1. Tie it to a balanced budget amendment to keep the defecit spending down while you’re at it.

      1. Baby steps.

  6. U.S. v. $124,700 in U.S. Currency.

    What the fuck ever happend to mens rea?

    1. You want them to have to prove actual wrongdoing in a court? Why do you want the terrorists to win?

    2. Money is an evil totem, so it always has a guilty mind until ritualy purified by government hands.

  7. So this is part of that “rape culture” I keep hearing about?

  8. *** looks at “FEDERAL RESERVE NOTE” ***

    THIS NOTE IS LEGAL TENDER FOR ALL DEBTS, PUBLIC AND PRIVATE

    *** squints at fine print ***

    “EXCEPT WHEN WE THINK IT MUST HAVE SOMETHING TO DO WITH ILLEGAL DRUGS”

  9. What the hell is someone doing with that much cash in a cooler? If I were a law enforcement officer, I sure as hell would be suspicious.

    How many people carry wads of cash like that in order to purchase a truck?

    Do people normally carry a suitcase or cooler full of large amounts of hard cash around to purchase a vehicle?

    Do you go to a car dealer and purchase a brand new car with a bag full of cash?

    Do people carry sacks full of cash around to purchase homes?

    1. What the hell is someone doing with that much cash in a cooler?

      Sheesh, a cooler can hold only a certain amount.

      1. Rich,

        And your point is?

        1. The point is that it is none of anyone’s business how much money is in the cooler. Something about a presumption of innocence, and being secure in one’s papers and such.

          You know. The Law. As written.

          1. RJ,

            Your so called overall “argument” is weak, so to speak. However, your premise has some foundation, which is, that the man was stopped for speeding and not for the inspection of his cooler. I suspect the entire story is purposely not being told here. Was there a tip off that he was carrying drug cash? What is the whole story?

            1. However, your premise has some foundation

              Yeah. The Constitution. Try reading it sometime. When you get to the Amendments, read the fourth one a couple times.

              1. Shove it!

    2. Textbook example of the fallacy of switching the burden of proof.

    3. What the hell is someone doing with that much cash in a cooler? If I were a law enforcement officer, I sure as hell would be suspicious.

      Good for you. Now go find some evidence of a crime.

      1. What are you talking about? The cash is the evidence. OTRTM has declared the person guilty, and now the burden of proof is on the accused to prove their innocence.

        1. That is going to sail over OTRTM head. It might even think you are agreeing with it.

          1. I’ve had several encounters with OTRTM where I pointed out the logical fallacies in its arguments, tearing the arguments apart on their own lack of merit without needing to make an argument of my own. Since then it might level some personal attacks at me, but I am otherwise ignored. It knows it is woefully outmatched, so it chooses not to battle.

            1. sarcasmic,

              Your encounters with me have ALWAYS been as a person who demonizes whoever he does not agree with. You simply do not like my opinions about ANYTHING, and therefore feel the need to dismiss me as someone who has no valid arguments to present. Your position is reinforced in that anyone who does not share your fucking opinions will of course personally attack you. Sound like you might just be a bit paranoid on that respect.

              1. Um, no. I just point out the illogic in your arguments. Like or dislike has nothing to do with it.

        2. Fuck off.

      2. Jordan,

        You need to find some evidence too. I suspect that this article is not telling the entire story on this particular case. Why? Propaganda effect would be lost?

        1. You need to find some evidence too.

          You’re switching the burden of proof again.

          1. sarcasmic,

            So, you must be a fucking attorney. Yes? Yes, I did switch the burden of proof again, and it is on the way to flying up your asshole this very nano second.

            1. So you admit that your argument is based upon a logical fallacy. That’s the first step to recovery.

    4. “What the hell is someone doing with that much cash in a cooler?”

      None of your goddammed business. Perhaps he was trying to secure a better deal with cash?

      “If I were a law enforcement officer, I sure as hell would be suspicious.”

      That’s comforting… And you believe suspicion is the highest standard necessary for those who are charged with “protecting and serving” to steal from their fellow citizen?

      “Do people normally carry a suitcase or cooler full of large amounts of hard cash around to purchase a vehicle?

      Do you go to a car dealer and purchase a brand new car with a bag full of cash?

      Do people carry sacks full of cash around to purchase homes?”

      What the fuck is it to you? If someone does such a thing, they deserve to be stolen from? The question isn’t how someone stores and uses large amounts of cash, it’s how you (and people like you) can justify stealing it… and the mental gymnastics involved in rectifying it with constitutional law. Show your work..

      1. Pychogen,

        Thanks for the lecture. Have a nice day. Nice posting with you, ace.

        1. On The Road To Chicken Shit Cowardice,

          Thanks for the question dodging non-reply, Have a nice day. Nice posting with you, ace.

          1. Have a great day down at your trailer court, you fucking retard piece of shit. Your posts are as worthless as a pile of dried up dog shit on a desert back road in New Mexico on a summer day.

            1. “Have a great day down at your trailer court,

              Ooooo… trailer court, is that the extent of your feeble intellect? You lack imagination.

              “you fucking retard piece of shit. Your posts are as worthless as a pile of dried up dog shit on a desert back road in New Mexico on a summer day.”

              Meh.. Dull and uninspired. I’ve heard better tirades from smarter trolls, and original content at that. I give you a 3 out of 10 for your weak spittle flecked seizure…

    5. OTRTM: Find a mirror and gaze deeply into it. What you’ll see is a statist asshole. No one gives a shit about your generalized suspicions of anyone doing something outside the norm. If it isn’t RAS of a specific crime, the cop can fuck off.

      1. Byron,

        You must be one of those anarchist assholes who regards all members of the law enforcement establishment as a threat to your childish desires to do whatever you want, and whenever you want to do it, regardless of the legality.

        Find a mirror, and shove it up your ass.

        1. Caught me. I want to be free in my pursuit of life, liberty, and property as long as I do not violate the corresponding rights of others. Crazy shit, huh?

          1. Byron,

            By the time everyone has his/her fucking “rights” (to include yours) no one will have any fucking rights at all. I have heard your type of hippie “philosophy” many times before, and your shit is weak. Crazy shit is exactly what you are saying.

            1. Your words form sentences, but not cogent thoughts. Dumbass.

        2. “…a threat to your childish desires to do whatever you want, and whenever you want to do it, regardless of the legality.”

          You are aware of the irony in using these words to defend the theft of property without any proof of wrongdoing, right? Right?

    6. Using your logic, by how often you visit Reason.com and post on it you could be accused of being a libertarian and have your red card revoked.

      1. NealAppeal,

        So revoke my red card.

    7. Why the hell should we have innocent until proven guilty. Shit Mandalay, let’s just give the cops authority to summarily execute suspects and save money on courts and lawyers.

      1. The Last American Hero

        Again, I suspect that many of the details of the actual case were left out on purpose, in order to enhance the propaganda being presented.

        1. Again, I suspect that many of the details of the actual case were left out on purpose, in order to enhance the propaganda being presented.

          It’s “guilty until proven innocent” all the way to the core with you isn’t it?

          If there were a crime, the case would’ve The People Of The State Of Nebraska (or w/e) vs. Emiliano Gonzolez and the money would just be evidence. Even then, the arrest/seizure took place in 2006 and a person has a right to a speedy trial. This case is about the holding the money based on suspicion and rather strictly because it is money. If it were a bloody knife or a sawed off shotgun with Hoffa’s DNA all over it, their wouldn’t be a trial (of the money) and an appeal (of the trial of the money).

    8. Suspicion is fine and warranted. It is still up to the state to prove there is wrong-doing involved.

      You fucking cunt.

      1. MJGreen,

        If your message is for me, the use of the word c–t is always interesting. The rather ugly slang name for a woman’s sexual organs is used frequently to dismiss someone as a crank, or demonize them. Really interesting that the use of the word c–t is always used in the negative. You must be a woman hater. Are you?

        1. Just a you-hater. You useless piece of shit.

          I’m just trying to match your style.

          1. As a professional hater, it’s too bad you can’t do anything about me, isn’t it? As for matching my style, you should try it sometime. You might even learn something.

    9. What the hell is someone doing with that much cash in a cooler?

      When you get that much drug money together, it screams real loud. So you have to put it in a cooler to keep it quiet.

      It’s one of the reasons I stopped accepting wads of cash for my drugs and switched to gold plated AK-47s, diamond goblets, and carbon-fiber/titanium alloy cars.

      I could just accept wire transfers, bonds, shares, and other equities, as well as various other methods of moving money without actually moving it, but what’s the fun in that?

      1. mad.casual

        What cartel are you with? North of the border, or south?

        1. Literalistic, obtuse, narcissistic, why you’re practically an Asperger’s poster child.

          1. kbolino,

            What cartel are you with?

            1. The “don’t hurt people or steal their shit” cartel. On the weekends, I moonlight in the “don’t be a douche or a self-absorbed dickhead” cartel.

    10. What the hell is someone doing with that much cash in a cooler?

      None of yours or anyone else’s business.

      The cops didn’t find any drugs or drug paraphernalia in the car. Or any evidence whatsoever of any “crime” other than a bunch of cash (which carrying large amounts of cash isn’t a crime, hence the scare quotes). And as I said, that’s none of yours or anyone else’s business. Fuck off, slaver.

      1. Loki,

        Fuck off, dick wad.

        1. Did you intend for it to appear that the accusation of being a slaver was less offensive to you than the instruction to fuck off?

          Because it certainly seems that way.

    11. Do you go to a car dealer and purchase a brand new car with a bag full of cash?

      Yes. My last car was purchased all in cash. Approximately $20,000, and yes it was in a briefcase – suitcases are just kind of tacky. The finance manager looked at me like I was nuts.

      For the record I am nuts, but I always find it amusing when people who thought I was sane finally realize they were wrong, very wrong.

      Do people carry sacks full of cash around to purchase homes?

      Not necessarily sacks of money, but all cash transactions for homes has been steadily increasing. Via the Washington post, “[c]ash purchases traditionally make up about a quarter of home sales, but they’ve soared to about 40 percent nationwide […].”

  10. But how will all those prosecutors be able to coerce guilty verdicts if defendants can keep assets and afford legal council until proven guilty?

    1. Spot on, except prosecutors want (and usually get) guilty pleas, not verdicts. Verdicts require actual work.

  11. Civil forfeiture allows the government to take property from people who are never charged with a crime, let alone convicted, based on the fiction that the property itself is guilty…

    the 8th Circuit concluded that the government had “demonstrate[d] by a preponderance of the evidence that there was a substantial connection between the currency and a drug trafficking offense.”

    If the property itself is somehow “guilty” then shouldn’t the same standard of guilt apply to it as to the person who committed the crime? I.e. “beyond a reasonable doubt”? Paul’s bill is certainly a step in the right direction, and far better than doing nothing.

    I guess maybe he didn’t think he’d be able to get enough votes for it to pass if he went all the way to reasonable doubt, which itself should be an indictment against our Congress critters. Bunch of thieving assholes.

  12. The official message of the article is about enacting laws to curtail “legal theft”. The real message could be that nasty policemen (probably a Gringo in this case?), should not bother respectable Hispanic people on Interstate Highways even if they are speeding. Maybe the mean State Trooper is question should have apologized to Emiliano, followed by public penance and flogging.

    1. Yes, that is clearly the message here. In fact, every time I get pulled over for speeding, not only does the cop take all my money, but then he sets my car on fire too. Those damn hispanics are getting off too easy!

      1. Too bad you have reading comprehension problems, you fucking ass retard. Your post mirrors absolutely nothing in my comment. That’s because you are too fucking stupid to even begin to realize the meaning of my post. Quit posting on this site and consider suicide as an option. Then, I can mark your file DSAF – Did Society A Favor. Have a nice day, moron.

        1. You are the one who is conflating the stop with the theft. It’s not my fault you are too literal-minded to understand anything but the most superficial meaning in your own arguments.

  13. “?would make that sort of highway robbery harder to pull off.”

    Why in the Hell wouldn’t you make it “impossible” to pull off? Until you do, you’ll have nothing but a whack-a-mole game.

  14. Why the ACLU does not fight this violation of civil rights has always puzzeled me. It started with the taking of cars stopped for drug violations even when the amount was tiny, the perpetrators were teenagers and the drugs possibly planted by the police. Hope the bill by Senator Rand passes.

    1. Because the ACLU are a bunch of left-wing looters who have no respect for property rights.

  15. This is common in California, too, especially in localities with police and DAs that are hostile to medical marijuana but can’t do anything about it under state law. CA actually uses the stricter “clear and convincing” standard for civil forfeiture and only allowing for 65% to go to the agency. So DAs in Orange County, etc., just call in the feds…

    The CA Legislature attempted to stop the practice a little while back but it was vetoed by Gov Davis (likely at the behest of the police unions).

  16. No doubt that allowing law enforcement to keep part of the proceeds is dangerous. Why…it’s like allowing Billionaires to spend vast sums of money influencing the political process in order that THEY GET MORE MONEY.

    So, which is it?

    If the free market reins, the cops should get to keep their winnings and the Kochs can spend unlimited $$ to keep their winnings and make sure more legislation is passed so they get more cash.

    BUT, if we looks at the spirit of the founding…..we see that BOTH of these actions are dangerous for our republic…that is, those of the Koch’s endanger the general welfare and happiness of the people as well as our nations’ ability to pay bills, while those of the law enforcement give rewards for much of the “middle ground” of seizures and suspicions.

    Paul, though, is the ultimate populist. If he were running for county sheriff, he’d be all for taking the cash. But he always picks subjects which contain that “oh so nice” populist tone….

    The best way to solve this problem is the Big Picture. Institute a VAT or other method whereby the gubment can raise enough money without each and every person having a “free market reward” for gaming or fraud.

    1. Ah come on, work “rape culture” and “global warming” in there and I can hit every point on “lefty talking point bingo”!

      1. So you are saying “rightie point bingo” includes tax fraud, cheating and rewards for it?

        Most sane people can see that our “honor” tax system ends up rewarding non-compliance. I would think that is a very centrist issue.

        If you don’t pay, I have to cover your part.

        Go to a big local flea market any Sunday. We have some where millions of dollars a month are transacted. Lots of money in coolers…I guess!

        So I guess it’s a leftie talking point if I agree with Rand. You are funny…….

        The libertarian idea of “free markets” means cheating. It’s as simple as that. Law enforcement is being given impetus for cheating…or gaming the system. So are tax cheats, billionaires, etc.

        Even the founders didn’t consider a voluntary tax system…it’s plain crazy. We should build a cap (in terms of gubment spending) into the constitution and collect it like a toll – where you can’t avoid it if you cross the bridge.

        1. our “honor” tax system

          Wesley Snipes imprisoned himself, did he?

          We don’t have a “voluntary” tax system you halfwit. Your own stupid conflation of asset forfeiture with taxation gives that away; it doesn’t matter what you call it, if armed agents of the state can take things from you by force, then it’s not voluntary.

          The shallow incoherence of your thoughts makes communists look good. There is no system immune to gaming; it is in the nature of people to pursue their own self-interest even at the expense of others.

          I don’t know what batshit system you have in mind, but there is no magical supply of people who are immune to human nature from which to draw its administrators.

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  18. The article doesn’t indicate whether Emiliano was a US citizen or in the country legally. If not, too bad. Who carries cash in a cooler? An intelligent law biding person would bring a bank draft to complete the transaction.

    1. Cop fellators grow tiresome.

      If he was not here legally, the only thing that can be done to him is deport him.

      He doesn’t have to explain where the money came from, unless the police have probable cause to believe that money was obtained illegaly.

      Possessing lots of cash is not prima facie evidence of a crime, and no person–citizen or otherwise–should be deprived of their property without due process of law.

      Civil asset forfeiture is not due process, because the presumed owner (remember when possession was 9/10ths of the law?) of the property has no legal recourse in the proceedings.

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