[thaway2839]

It clearly isn't a direct and obvious violation.

Even ignoring any say the rest of the Constitution has on civil forfeiture, even the parts that you quote do not prevent civil forfeitures on their own.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"

The rub here is "unreasonable". The fact that the constitution explicitly proscribes "unreasonable" seizures means it also allows "reasonable" seizures.

So there is no clear answer here because unreasonable is completely subjective.

[Retric]

It’s only ambiguous if you ignore the clear intent of what was written. Just like how the right to a “speedy” trial somehow allows them to be delayed for over a year. Sorry the language isn’t ambiguous, the language is being ignored.

[mlyle]

> Just like how the right to a “speedy” trial somehow allows them to be delayed for over a year.

Generally, when trials take a very long time to happen, it's because the defendant has decided it is in their interest to waive the right to a speedy trial.

[yonaguska]

Ummm, Gitmo? J6 detainees? And countless other stories of young black men being held without trials to their own detriment.

[mlyle]

> Ummm, Gitmo?

Umm, Gitmo was messed up. But, to be clear, the United States does not guarantee constitutional rights to non-citizens who have not touched US soil, so this is a bit of a canard.

> J6 detainees?

Despite rumors of hundreds of January 6th detainees languishing in jails-- the actual number is approximately 35. Most of these have waived speedy trial. Most of these have not been detained for a very long time.

A few are still undergoing legal discovery. It's a problematic set of circumstances: further, closely related arrests happen; without providing additional information on the new arrests to existing arrestees' counsel, convictions could later be set aside. In turn, this restarts some clocks. On the other hand, judges are getting frustrated and warning the prosecution that these delays are becoming excessive.

[jessaustin]

the United States does not guarantee constitutional rights to non-citizens who have not touched US soil

I can't find this detail in my copy of the constitution. 6A in particular specifies "the accused". It's true that most Gitmo prisoners were never actually accused of anything (because they had never done anything, in particular anything related to actions undertaken by Saudi nationals under the direction of Saudi intelligence personnel), and were eventually released without apology. However, any prisoner who ever actually went to trial would certainly be classified as "accused".

[LanceH]

In the context of civil asset forfeiture, it is not uncommon for the state to drag it out and make it not worth reclaiming the money.

[mlyle]

Here in this subthread, we're talking about the right to a speedy criminal trial.

Speedy civil trials are not a constitutional right. (Though, when it comes to forfeiture, the long timelines are one of many problematic aspects).

[Retric]

These forfeiture trials are criminal trials. If the government is suing over a breech of contract or something that’s a civil matter, but when the government is acting with powers outside of those of a normal citizen it’s a criminal trial in everything but name.

So it’s doubly troubling as they are also ignoring the presumption of innocence and other such protections.

[mlyle]

> These forfeiture trials are criminal trials.

These forfeiture trials are not criminal trials. There are plenty of ways you can be civilly liable without breach of contract.

I do think the standard should be higher than a typical civil case (beyond preponderance of the evidence).

But this artifact of law has a reason to exist: if there's stuff that's most likely involved in a crime with no identifiable owner, it makes sense for it to be seized. Especially the original case of distant and difficult to identify ship owners. (Once an owner can be identified, I do think there should be greater protections-- deriving from the fourth, not the sixth, amendment.

[kristjansson]

They _should_ be like criminal proceedings, but actually operate as civil actions. Civil Asset Forfeiture - it's right there in the name.

[LanceH]

Your post that I responded to put it upon the defendant who stretches things out. Regardless of whether it is the civil or criminal, it is frequently the state which delays and adds procedure to these forfeitures for the purpose of grinding out the defendant.

[leephillips]

And if they don’t waive, it’s still on the order of months in most jurisdictions, isn’t it? That’s not speedy.

[dragonwriter]

> And if they don’t waive, it’s still on the order of months in most jurisdictions, isn’t it? That’s not speedy.

Shorter would compromise the defense, who has less warning of the need to prepare for trial (that's why in the federal system, the defense, in addition to having a waivable statutory right for trial to start within 70 days of charging, also has a waivable statutory right for it to not start less than 30 days from charging.)

And it is speedy compared to the problems which motivated the guarantee.

[mlyle]

IMO-- A few months to arraign, exchange evidence, make procedural rulings before trial, etc, isn't unreasonable.

[leephillips]

I realize this is the predominant view, but it never made sense to me. I think we’ve just grown accustomed to it. The Constitution doesn’t say “prompt”, it says “speedy”. I’m sure those without the ability to pay pail, or who are denied bail, don’t regard their few months in the US’s notoriously dangerous jails as reasonable.

[mlyle]

I think the bigger problem here is bail and pretrial detention, and that's what should get fixed instead of trying to ram trials through quickly.

(Yes, the timeframe is longer than it was in the 18th century, but trials have also gotten more complex: mostly in ways that benefit defendants).

[femiagbabiaka]

I agree, except that it’s a long time to be in jail, especially in some of the larger counties in and around cities in the U.S.. Fatally long, in some cases.

EDIT: Nevermind, I see that you addressed this down thread.

[Retric]

The problem here is not generally but rather those cases where people haven’t waved their rights.

[mlyle]

I'm saying most of the cases where people are held up as "detained for ____ days without trial", they have waived right to speedy trial.

The overwhelming majority of defendants not waiving speedy trials get a trial within a year.

Of the remaining, there's a big share that are various kinds of edge cases where it makes sense that a trial has taken a little longer than normal.

And then there's the remaining abuses and problems, which are relatively small in number but should be addressed.

[Retric]

Look even waiting 3 months is already a failure of the speedy requirement. Saying well 1 year is too long but edge cases isn’t a minor issue… No anyone ever hitting 1 year is clear evidence of total failure of the system to even pretend to care about this issue.

[mlyle]

> Look even waiting 3 months is already a failure of the speedy requirement.

3-4 months to get a criminal case together, with discovery requirements, etc, seems reasonable.

> No anyone ever hitting 1 year is clear evidence of total failure of the system to even pretend to care about this issue.

I don't agree. Terrible stuff happens occasionally-- it is not evidence that every element of the system is broken everywhere.

IMO the big issue is bail and pre-trial detention. Yes, criminal cases being in limbo is bad (and the constitutional right of speedy trial is important)-- but a lot of the reason why they take longer now than in the 18th century is because of additional protections for defendants.

[dontcare007]

I'm sure all the Jan 6 protestor have waved their right to a speedy trial...

[sokoloff]

"Shall not be infringed" is another one that is commonly interpreted quite differently than the most plain reading would suggest. (I say this as someone who does not own a firearm, so this is probably not gun-nuttery.)

[RajT88]

The modern pro-gun movement has erased the words "well-regulated militia" as well.

The thinking of course is everyone could potentially join a militia, therefore everyone is defacto covered under the second amendment.

[dontcare007]

Nah, well related militia was not a restriction on the right, it was a reason for everyone to have the right. You have to remember that the Constitution doesn't give the people rights, it delineates the governments rights. The 1st 10 amendment's were added because the anti- federalists were (rightly) worried that the government would misappropriated all powers and eventually the people would no longer be free. They were basically a list of rights for a minimum viable free society.

[s1artibartfast]

And the Anti-gun movement conveniently ignores the concept of a preposition.

Because one first part explains the rationale, the second part describes the right.

[dane-pgp]

The first part also provides a context for understanding the second part. For example the right to "bear" arms shouldn't be read as including a general right to brandish arms, even though a less constrained reading of "bear" might suggest that. Conversely, it does include a right to fire those arms, since that is necessary for a well regulated militia to bear them effectively.

[NineStarPoint]

I think it’s fair to question why out of the 10 amendments that make up the bill of rights, only the second amendment would have a part that is non-functional and “describes the rationale”. The preposition is part of the amendment, and its existence puts a qualification on what the right to bear arms means.

I personally think the current state of affairs does a pretty good job balancing the two parts of the amendment. States are allowed to put a lot of restrictions on how you can buy guns, and where you can carry/use them, but ultimately people are allowed to have them. You aren’t allowed a nuke, you are allowed a shotgun. Exactly what level of personal firepower should be allowed for a “well regulated militia” could be a constant source for debate, but I think the balance is kept pretty well.

[mindslight]

> it’s fair to question why out of the 10 amendments that make up the bill of rights, only the second amendment would have a part that is non-functional and “describes the rationale”.

I know this is apostasy, but because the founders weren't omniscient beings that drafted perfect documents. Rather they were politicians basically just winging it while trying to come to some consensus. Critically, they lacked an understanding of the limitation of logical systems that would only be discovered in the 20th century - the repercussions of which are with us to this day.

> Exactly what level of personal firepower should be allowed for a “well regulated militia” could be a constant source for debate, but I think the balance is kept pretty well.

From the commoner's perspective, most explosives are basically illegal even though they could be responsibly kept by anyone with a little land. So no, I don't think any balance has been achieved. For starters, anything that a domestic-facing police department is allowed to have should be fair game for the rest of the People as well.

[s1artibartfast]

They put the qualifier on it because they felt extremely strong that the country should not have a standing military that could be used as a tool of oppression. Instead, they felt that it should have an armed citizenry, which could form an army in the event of a war.

[jaywalk]

The restrictions that some states put on gun purchases/ownership have are quite excessive and onerous, and may end up being struck down by a SCOTUS decision coming down within the next few months.

[RajT88]

This is an example of what I am referring to.

Hand waving away the wording about military utility, and only focusing on the individual right.

We can, and need to have a debate about both, and not just the latter. That is my point.

[User23]

Every able-bodied American male 17 or older and under 45 is already a member of a well-regulated militia[1]. Now you may think Congress should ask more of the militia of the United States, but being a statutory organization certainly meets the well-regulated criteria.

[1] https://www.law.cornell.edu/uscode/text/10/246

[jmalicki]

The statute calls them unorganized, which is arguably not well regulated...

"(2)the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."

[s1artibartfast]

Regulated in the constitution did not mean controlled or restricted as in 'regulations'. It meant armed and capable.

[RajT88]

Private gun-owning citizens are not automatically counted among active unorganized militia.

Even in the few active state militia they would be considered eligible, not members.

SCOTUS has had contradictory decisions in the past on whether private gun rights hinge on military applications of the specific firearms, but indeed this is the talking point - state militias.

Collectively, the people who parrot "Shall Not Be Infringed" are really trying to avoid the militia debate entirely.

[tonfreed]

Considering there's letters from James Madison endorsing cannon ownership, I don't think it means what you think it means either.

[bombcar]

Heh we can still get our cannons: https://www.nationalreview.com/corner/americans-can-still-bu...

[s1artibartfast]

Which is exactly the same rationale that the 2nd amendments authors used.

[hn_throwaway_99]

There is a very long history of jurisprudence over the past 2+ centuries that has done a pretty good job of defining what "unreasonable" means, and there are tons and tons of SCOTUS cases that have dealt with that. The basics, though, nearly always involve a judge reviewing the evidence to determine if a crime is probable, and issuing a warrant in that case.

The fact that civil forfeiture is so contrary to all the other definitions of "reasonable" that courts have emphasized over the years should make it a clear violation of the Constitution.

[zmgsabst]

From the US constitution:

> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable … seizures, shall not be violated, … but upon probable cause, supported by Oath or affirmation, and particularly describing the … things to be seized.

From the article:

> In a response to an interrogatory filed in the Kozbials' subsequent lawsuit against Highland Park, a city police officer answered "none" when asked to identify any predicate felony offenses justifying the seizure.

What was the probable cause supported by oath or affirmation?

[tialaramex]

One test the law likes for reasonableness is to ask a jury.

We presume the jury are reasonable people (unfortunately the US also screws up how juries work) and so if they have a consensus that must be reasonable.

The UK uses "double reasonableness" in it's anti-tax avoidance law. It says the jury should ask themselves if any reasonable person might have done this anyway. If your jurors can't conceive of how even one other reasonable person could think what you did made sense, except that it reduced tax liability, then in fact it did not reduce liability, your avoidance scheme doesn't work.

[peyton]

The broader question isn’t whether a specific action is reasonable in context, but whether civil asset forfeiture is constitutional. So it’s a question of law for the courts to decide, not a question of fact for a jury to decide.

[AnimalMuppet]

We'd love to see a constitutional ruling against civil asset forfeiture. It's the right thing.

In the absence of that, though, jury rulings against the specific seizure is the next best defense.

[twh270]

There is no clear answer to the question of reasonableness/unreasonableness, but civil asset forfeiture as used today is *far* into unreasonable territory.

[UncleEntity]

> The fact that the constitution explicitly proscribes "unreasonable" seizures means it also allows "reasonable" seizures.

Yes, a reasonable seizure is either through eminent domain (with just compensation) or the result of a criminal proceeding as punishment.

Unreasonable would be seizures with no criminal proceedings or just compensation.

[avs733]

reasonable here could easily be aligned with, you know, having due process.

The constitution describes people's property and makes people subject to it. Suing a car or a pile of cash is farcical - because the constitution doesn't have authority over objects, it has authority over the people who own and possess the objects.

Its the same basic factual explanation as to the difference between two consenting adults and adults and children/animals that seems to befuddle those who don't like gay rights.

[mlyle]

> because the constitution doesn't have authority over objects

First, the overwhelming majority of civil forfeiture happens in states, where a mere claim of the constitution not explicitly giving the federal government authority doesn't hold water (or invoke the incorporation doctrine).

Second, Federal courts have long exercised authority over objects and courts having authority over objects is something that is broadly considered constitutional.

> Suing a car or a pile of cash is farcical

It may seem farcical, but it has a decent legal basis and a reasonable reason for existance: there are times that property seems to A) be involved in crime, and B) unclaimed by owners. E.g. distant shipowners engaged in smuggling. It seems reasonable for the government to seize the property in these cases.

It's much more problematic when a clear owner can be identified (or, when an owner comes forward after seizure). I agree in those circumstances action should be brought against the people, and should require a higher standard than the preponderance of the evidence, for property to be kept.

> Its the same basic factual explanation as to the difference between two consenting adults and adults and children/animals that seems to befuddle those who don't like gay rights.

I don't quite see the connection.