Articles Tagged with Fourth Amendment

blm-300x200   The grand jury’s decision yesterday in the murder of 26 year old Breonna Taylor exposes some of the many problems with our criminal justice system, particularly the use of no-knock warrants.   There is so much wrong with this outcome like the fact that Louisville Police executed a no-knock warrant on her home, that no drugs were found in her home, that she was not even the target of any police investigation, and that no one has yet, or will, stand trial for this outcome.   This piece however, just focuses on the type of search warrant used.

Yesterday’s announcement is unsurprising in that criminal charges seldom follow the most notorious incidents where the police kill Black Americans.  Even when the cases of police killings of Black Americans make the national news, they do not normally result in criminal indictments and almost never in criminal convictions.  Names such as Eric Garner, Botham Jean, Stephon Clark, Philando Castile, Walter Scott, Tamir Rice, Michael Brown, or Freddie Gray briefly gained national prominence in the news media but did not except in one case, result in a criminal conviction.

No-knock warrants played a central role in the death of Breonna Taylor.  When a no-knock warrant was used against former Trump associate, Paul Manafort, the well-known television legal pundit, Jeffrey Toobin reassured Americans that magistrates put a great deal of care into issuing no-knock warrants.  In reality though, the probable cause needed to be shown to get a search warrant is not a high standard to meet and warrants, statistically speaking are more often given than not.

IMG_1241-300x200Sentence Before Verdict- Civil Asset Forfeiture Considered

by R Tamara de Silva

January 26, 2017

 

Let the jury consider their verdict,’ the King said, for about the twentieth time that day.

`No, no!’ said the Queen. `Sentence first–verdict afterwards.’

`Stuff and nonsense!’ said Alice loudly. `The idea of having the sentence first!’

`Hold your tongue!’ said the Queen, turning purple.

`I won’t!’ said Alice.

`Off with her head!’ the Queen shouted at the top of her voice.

 

                                                      Alice’s Adventures in Wonderland by Lewis Carroll

 

Few things in the practice of law have struck me as more similar in practice to the Queen’s declaration in Alice in Wonderland than the often seemingly surreal practice of civil forfeiture. Not only when in instances that it goes awry but just even as a theory as it sits written into federal and state statutes -resting on the books yet so very much at odds even in written theory with the scant enumerated rights and protections that are our constitutional safeguards against tyranny. It was anticipated by some that the recent confirmation hearings of the new United States Attorney General would draw attention to the practice of civil forfeiture.  Mr. Sessions had previously defended the practice of civil forfeiture as it was used in Alabama in his tenure as a prosecutor there.

The practice of civil forfeiture provides that federal and state statutes allow the government to seize private property when that property is used in prohibited ways. Like so much in the law, the room for disaster lies in the application of what is subject to interpretation and by whom it is that is doing the interpreting.

Civil forfeiture originated in the laws of admiralty when ships carrying contraband were subject to seizure.  The cargo carried would be seized whether on port or on the high seas often of necessity outside of the presence of the ship’s owners who may have been in distant countries.  Forfeiture was later used in the area of border crossing during customs examinations starting in England in the 1700s and through the Act of Frauds.

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