A federal judge in California has stayed the federal government’s attempts at civil forfeiture proceedings against the world’s biggest medical Marijuana facility, Harborside, in Oakland. In a novel approach, the City of Oakland made its case that the city has a lot to lose if Harborside’s property and resources are stolen by the feds.
In a disingenuous attempt to work around President Obama and Attorney General Eric Holder’s “Hands off” façade, the Justice Department has fallen back on the forfeiture statutes.
According to the Cornell University law school, Criminal Forfeiture requires the government to prove property is the result of criminal activity.
“Criminal forfeiture is a punitive action by the government against the offender. Typically, it occurs as part of a sentence following a conviction. 18 U.S.C. §982, through cross-referencing, creates a framework of offenses and procedures governing this type of forfeiture, as does 21 U.S.C. §881. The statute provides for the forfeit of “any property, real or personal, involved in such offense, or any property traceable to such property.” Depending on the crime, U.S. Customs procedures from Title 19 may also control.” http://www.law.cornell.edu/background/forfeiture/
The same backgrounder says this about Civil Forfeiture:
Unlike criminal forfeiture, civil forfeiture proceeds against the property, not the person. In theory, civil actions are remedial, not punitive like criminal proceedings. By acting civilly, the government seeks to remedy a harm, through the fiction of the property’s “guilt.”
The same statutes apply–18 U.S.C. §981 (parallels 18 U.S.C. §982) and 21 U.S.C. §881. To complicate matters, these statutes incorporate by reference Customs procedures from 19 U.S.C. §1602 involving searches, seizures, administrative procedure, holding, and disposal. When the government learns of a crime, establishes probable cause of the property’s involvement (usually as an instrumentality), it may seize the property by executing a warrant. A criminal charge or conviction is not required to seize. Notice occurs through presentation of the warrant and publication in a newspaper. If a party files a claim within the answer period, a civil hearing commences. In uncontested situations, the forfeiture may be handled administratively.
Due to its civil nature, the roles of the parties change. Instead of prosecutor versus defendant, the hearing concerns a plaintiff, the United States in the case of Federal forfeitures, and a defendant, the property in question. The owner is effectively put in the position of being a third party claimant. Furthermore, civil hearings involve a more lenient burden of proof than “beyond a reasonable doubt.” Once the government establishes probable cause that the property is subject to forfeiture, the owner must prove by “preponderance of the evidence” that it is not.
Since the government determines which form of forfeiture to use, it is not surprising that most are carried out using the civil (in rem) procedure.In other words, the government, under civil forfeiture, can steal your property on the flimsiest of evidence. You don’t even have to be convicted of a crime for them to do this.
In Harborside’s case, a new approach holds the government at bay until Harborside can make its case.
Some Democracy we live in, eh? Let’s hope the government’s legalized theft is stopped soon.
However, it is going to be difficult to stuff the genie back in the bottle as the genie really likes its stolen money.