Story about BATF having new forfeiture authority

[KyJim]

I haven't seen it here but have seen reference on another forum I frequent (and many other sites) about the BATF getting new authority to administratively forfeit property (including guns) of any substance abusers. All the hoopla was apparently generated by a story in the Washington Times -- http://www.washingtontimes.com/news/2012/sep/6/atfs-latest-gun-grab/.


I don't have any particular love for the BATF but the story in the Washington Times is misleading. There's a summary of the regulation here -- https://www.federalregister.gov/art...idation-of-seizure-and-forfeiture-regulations. The BATF already had authority to administratively forfeit any property, including firearms, used in violation of criminal laws which the ATF enforces. I don't see this as giving ATF authority to seize that nice double barrel if you get pulled over for a DUI. The new reg recognizes that ATF is now part of the Department of Justice and provides mundane information such as addresses to contact the ATF and consolidates some procedures within the various agencies in the DOJ (FBI, DEA, etc.).

There were two comments on the rule, one in support and the other by a newspaper organization protesting the move of public notice from newspapers to Internet.

I have not done a detailed comparison but don't think there are any major substantive changes in BATF's authority.

 

[sigcurious]

Thanks for posting the link to the reg changes. This also came up on another forum I belong to, unfortunately in a much more biased form, and I've been curious as to the real information.

 

[Frank Ettin]

...I have not done a detailed comparison but don't think there are any major substantive changes in BATF's authority.

While civil forfeiture is highly controversial and raises a number of constitutional, due process and civil liberty issues, there's nothing particular new here.

 

[Gunnut17]

I thought civil forfeiture was when the government or police can keep your property simply because i was used in a crime.

I am probably wrong, could someone correct me?

 

[KyJim]

Forfeiture statutes differ from jurisdiction to jurisdiction. In my state, there has to be a conviction first. In the federal system (and maybe some states) you don't have to have a criminal conviction. The government just has to prove it was used in a crime or was the fruit of a crime. The administrative forfeiture provisions discussed in this thread allow the trial to be conducted by an administrative hearing officer, not a jury or full fledged judge (or even a magistrate judge). The party can appeal.

I may be wrong but I believe the standard of proof in a civil forfeiture proceeding is clear and convincing evidence. That's more than a preponderance (most civil cases) and less than beyond a reasonable doubt (criminal).

 

[Al Norris]

From the relevant law:

Title 18 U.S.C.

§ 983(a)(2)

(A) Any person claiming property seized in a nonjudicial civil forfeiture proceeding under a civil forfeiture statute may file a claim with the appropriate official after the seizure.
...
(E) Any person may make a claim under subparagraph (A) without posting bond with respect to the property which is the subject of the claim.​

...
§ 983(c) BURDEN OF PROOF.—In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property—

(1) the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture;

(2) the Government may use evidence gathered after the filing of a complaint for forfeiture to establish, by a preponderance of the evidence, that property is subject to forfeiture; and

(3) if the Government’s theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.​

Read the rest of the Civil Asset ForFeiture Reform Act of 2000 (PL 185.106), here.

 

[KyJim]

Thanks for the clarification on the burden of proof. I suppose that's one reason it is criticized.

I used to work with a retired federal agent (agency will remain unidentified) who said they used to wait until drug dealers bought expensive cars and then seize them. The agents could then drive them as their "work" vehicle. That practice was later stopped.

 

[Al Norris]

One used to have to put up a bond (equal to the challenged property), before the reform. A whole lot of innocent people had to choose bankruptcy over their property.

 

[Armorer-at-Law]

A significant distinction appears to be that in a forfeiture hearing, the .gov only has to prove that a crime was committed, not who committed the crime.

 

[mrbatchelor]

The difference between civil forfeiture and criminal law is that in civil forfeiture the "stuff" is guilty instead of the person.

For example if your buddy Fred borrows your car to drive to Chicago, and he just coincidentally happens to score 25 pounds of high grade whatever drug they're selling on the street these days to bring back, then he gets busted, your car is guilty of transporting drugs.

You're not guilty of transporting drugs, so you won't go to jail. Fred's going to jail. And your car is going to jail - or rather your car is going to civil forfeiture land. And you have no recourse. It doesn't matter that you thought Fred was going to take his dying mother chicken soup. And for that matter Fred very well might have taken his dying mother chicken soup. Fred might be a fine son as well as a drug runner.

Your car is still gone. Too bad, so sad. It wasn't Fred's car, but it's still guilty.

That's civil forfeiture, or at least the civil forfeiture I've seen in some drug cases. I'm sure jurisdictions vary.

I am glad that KyJim and Al pointed out that the BATF doesn't really have that much expansion. I had seen the Washington Times article, but not the actual regulations.

MB

 

[Mr. James]

The Fairfax County Police in Virginia like to show off a shiny BMW sedan, painted in the full colors of a FCPD patrol car (absent the light bar). The car's vanity plate reads "SEIZED".

I get dyspeptic every time I see it.

In 2010, the Institute for Justice produced a lengthy report, Policing for Profit: The Abuse of Civil Asset Forfeiture. The report includes a state-by-state summary of civil asset forfeiture in each of the several states.

http://www.ij.org/images/pdf_folder/other_pubs/assetforfeituretoemail.pdf

As for poor "Fred," some, though not all, jurisdictions have an "innocent owner" provision which allows the property owner, at some inconvenience, expense, and effort, to prove he was unaware his property was being used in a criminal act.

 

[MLeake]

Friends of mine had to go through this in '99. They were USAF officers, stationed in the Florida panhandle (NAS Pensacola and Hurlburt Field); they were also absentee landlords of a house in San Antonio.

Renters apparently were selling drugs from the house.

It cost my friends something like $25k to get their house back.