Burden of Proof Discussion

[pacrat]

In a now closed thread to do with HOA powers.. Fiddletown made these quotes in support of a position regarding onus of proof.

[1]Burden of proof fallacy:
Quote:
...The burden of proof lies with someone who is making a claim, and is not upon anyone else to disprove. The inability, or disinclination, to disprove a claim does not render that claim valid, nor give it any credence whatsoever....

[2]Burden of proof fallacy:
Quote:
...The burden of proof is always on the person making an assertion or proposition. Shifting the burden of proof, a special case of argumentum ad ignorantium, is the fallacy of putting the burden of proof on the person who denies or questions the assertion being made. The source of the fallacy is the assumption that something is true unless proven otherwise. ....

[3]Burden of proof fallacy:
Quote:
...Burden of Proof is a fallacy in which the burden of proof is placed on the wrong side. Another version occurs when a lack of evidence for side A is taken to be evidence for side B in cases in which the burden of proof actually rests on side B. A common name for this is an Appeal to Ignorance....

The "burden of proof" discussion was a bit off topic for the closed thread. But I believe it is worth further discussion on its own merit. For the sake of clarity. And how "the burden of proof" definition, has been statutorily shifted to the opposite from the quotes above in certain instances. And further ramifications detrimental to citizen's 2A rights in the future because of those statutorial changes in citizen's 4th amendment rights.

"CIVIL ASSET FORFEITURE" aka "Policing for Profit".

Is specifically antithetical to the "burden of proof" definitions quoted by Fiddletown.

Under civil asset forfeiture laws. Any accusation of guilt by the state. Is an automatic presumption of guilt, which places the "burden of proof" on the accused. Not the accuser.

And gives the state carte blanche to trample any 4th-A protections of the accused.

What becomes of 4th and 2nd amendment protections when the same unscrupulous cities, counties, agencies, etc. Change their focus from "policing for profit" to "policing to get guns"? By enforcing the agenda's of anti 2A politicians, by arbitrarily confiscating firearms using "Asset Forfeiture" statutes as justification?

[RickD427]

Pacrat,

In a civil asset forfeiture case, there is no "accused". Get that thought out of your head. If someone were "accused", there would be a corresponding criminal case.

In a civil asset forfeiture case, the state proceeds against the property (not against any accused person) that was seized, on the grounds that it was either used as part of a criminal enterprise, or was the product of a criminal enterprise.

The only parties to the action are the seized property and the state. If a third party wishes to intervene then, just like any other civil case, they have the burden of proof to show standing, and as a moving party, normally have the burden of proof on the merits.

Keep in mind that I also share your opinion that there has been some abuse of the civil asset forfeiture power, along with a lot benefit derived from it. But that doesn't change the state of the law.

[RandyD]

I am not fully understanding your question(s). The issue of burden of proof can vary depending upon the case and issue being decided. The burden of proof is not always on the proponent, sometimes there are presumptions which affect who has the burden of proof, and regarding presumptions sometimes they are conclusive and other times they can be rebutted.

[fiddletown]

The discussion was in the context of a discussion or debate. The references you've focused on were made in response to someone stating an opinion by unwilling to support that opinion with authority or evidence. His response to a request for supporting authority was "go fetch."

The point I was making was that in a discussion it is the burden of the proponent of an opinion or a position or a theory or an idea to support it with appropriate evidence. It is not the burden of the audience to find the evidence or to disprove the opinion, position, theory, or idea.

Legal procedure recognizes three burdens: (1) production (producing evidence); (2) proof; and (3) persuasion

The allocation of those burdens in a legal proceeding will depend on the nature of the issue and the applicable law.

Under federal civil asset forfeiture rules (18 USC 981 and 18 USC 983) the government in fact has the burden of proof, and what it must prove is defined in the statute. And so 18 USC 983(c) provides:

...

Yes, civil forfeiture is controversial and might well be abusive. Congress enacted the rules and can change them. But the government does have the burden of proving what needs to be established to support the forfeiture under the law as it exists.

[Librarian]

The discussion was in the context of a discussion or debate. The references you've focused on were made in response to someone stating an opinion by unwilling to support that opinion with authority or evidence. His response to a request for supporting authority was "go fetch."

The point I was making was that in a discussion it is the burden of the proponent of an opinion or a position or a theory or an idea to support it with appropriate evidence. It is not the burden of the audience to find the evidence or to disprove the opinion, position, theory, or idea.

I was about to point this out; the general method of argumentation, outside a court of law, is "you make the claim, you get to support it". Classic internet lore.

[pacrat]

In a civil asset forfeiture case, the state proceeds against the property (not against any accused person) that was seized, on the grounds that it was either used as part of a criminal enterprise, or was the product of a criminal enterprise.

Semantics, and the absurd logic, behind the concept that inanimate objects can be guilty of committing crimes. Which BTW is not the topic of this thread.

Another of those "good ideas" that quickly turned into a crap storm of abuse. Once unscrupulous players learned they could game the system, at the expense of citizens, to line their pockets.

"some abuse" and "a lot of benefit".... indeed. Duly noted as the opinion of someone firmly ensconced on the side which has profited by "Policing for Profit".

All well and good on paper. But neglects to admit that in the real world of roadside banditry. All it takes is a vague suspicion on the part of an unscrupulous player to justify his actions of taking anything he wants. Forcing victimized citizens to then fight city hall at great expense to "Prove by a preponderance of evidence" that their property did not commit, or was not the product of a crime.

Rather than tell you to "go fetch" I will provide 2 links in support of my opinion. If you choose, you can then argue with "youtube" and "Yahoo search" whether asset forfeiture "might well be abused".

10,400 results

https://www.youtube.com/results?search_query=policing+for+profit

24,900 results

https://search.yahoo.com/yhs/search?p=policing+for+profit&ei=UTF-8&hspart=mozilla&hsimp=yhs-001

Back on subject....What will happen? When the same bad actors now abusing the system to circumvent the 4th to line their coffers. Or new bad actors with anti 2A agendas decide to game the 4th and 2nd amendments by seizing firearms from LACs using the "Asset Forfeiture" dodge to deny lawful owners their guns?

Which semantics aside, places the onus of proof on the accused.

[fiddletown]

Semantics, and the absurd logic, behind the concept that inanimate objects can be guilty of committing crimes. ...

No one has said that inanimate objects commit crimes and that notion has nothing to do with civil forfeiture.

In any event, the assumption you made to start this thread:

...."CIVIL ASSET FORFEITURE" aka "Policing for Profit".

Is specifically antithetical to the "burden of proof" definitions quoted by Fiddletown....

I have shown is false. 18 USC 981 defines the facts that need to be true for assets to be subject to civil forfeiture, and 18 USC 983 places the burden of proving those facts on the government.

So the facts which must be true for assets to be forfeit are spelled out and the procedures for conducting forfeiture are also spelled out and include the government having the burden of proving those facts to be true. The question of whether that satisfies due process is one for the courts. There have been cases sustaining forfeitures against due process attacks, but Justice Thomas has doubts. So perhaps we'll see further developments.

However, a law can be perfectly constitutional and still bad policy or a bad idea. Whether civil forfeiture is good, bad, unfair, etc., are questions for Congress and state legislatures.

....But neglects to admit that in the real world of roadside banditry.....

Breaking News: Bad People Will Find Ways to do Bad Things. Film at eleven.

...When the same bad actors now abusing the system to circumvent the 4th...

Where is the Fourth Amendment being circumvented? 18 USC 981 specifically requires a warrant or a recognized exception to the Fourth Amendment warrant requirement in order to seize property for forfeiture. So the Fourth Amendment must be complied with.

...Or new bad actors with anti 2A agendas decide to game the 4th and 2nd amendments by seizing firearms from LACs using the "Asset Forfeiture" dodge to deny lawful owners their guns?...

As far as I know this hasn't been happening. Nonetheless, gun control advocates will use whatever legal means they find to further their interests, just as RKBA advocates will use whatever legal means they find to further their interests. That's how things work in real life in the real world.

[pacrat]

Originally Posted by pacrat View Post
...."CIVIL ASSET FORFEITURE" aka "Policing for Profit". Is specifically antithetical to the "burden of proof" definitions quoted by Fiddletown....

I have shown is false. 18 USC 981 defines the facts that need to be true for assets to be subject to civil forfeiture, and 18 USC 983 places the burden of proving those facts on the government.

Sadly, No! you have not shown anything I posted is false. What you have done is link and post how "Civil Asset Forfeiture" should work as the Federal statutes are written. Which is diametrically opposite of how those statutes are actually applied by roadside bandits. And the crooked agencies who promote and support the "Policing for Profit" agenda.

Your [3] numbered examples of how it is supposed to work, are rendered moot by the 35,000 + examples of how the system is gamed in the real world. Which I linked. And those same fed and state legislators who created "P for P" now continue to give a wink and a nod. To the corruption they created. Because it is just so damn profitable, to the tune of over $5 BILLION a year.

Then stack on top of the corrupt roadside banditry, that even when a victim proves by a preponderance of evidence. That the seizure was illegal. The bandits don't even lose their jobs or face criminal charges because the same corrupt system covers them with qualified immunity. Even when they are caught on video, admitting exactly what they are doing, and why they are doing it.

Where is the Fourth Amendment being circumvented? 18 USC 981 specifically requires a warrant or a recognized exception to the Fourth Amendment warrant requirement in order to seize property for forfeiture. So the Fourth Amendment must be complied with.

All across the country everyday! Where were Mr Nguyen's 4th amendment protections when his money was stolen by a cop on the side of the road? He is but one of the 35,000 examples I linked to.

The vast majority of victims just walk away. Because it isn't worth spending tens of thousands of dollars to get back what the roadside bandits seized from them.

https://jonathanturley.org/2014/05/01/deputy-dove-and-policing-for-profits-nevada-county-settles-cases-where-drivers-were-stripped-of-cash-but-refuses-to-charge-or-file-officer/

The whole paragraph you so conveniently parsed to make a claim.

All well and good on paper. But neglects to admit that in the real world of roadside banditry. All it takes is a vague suspicion on the part of an unscrupulous player to justify his actions of taking anything he wants.
Forcing victimized citizens to then fight city hall at great expense to "Prove by a preponderance of evidence" that their property did not commit, or was not the product of a crime.

Your entire legal theory of what should happen goes up in smoke under the overwhelming evidence of what actually happens.

RickD427 said,

The only parties to the action are the seized property and the state. If a third party wishes to intervene then, just like any other civil case, they have the burden of proof to show standing, and as a moving party, normally have the burden of proof on the merits.

Which is closer in keeping with reality. The "third party" [owner] is actually [semantics aside] the accused. Not being charged with a crime, just makes the states position easier in order to facilitate the taking of his property.

Now if we can get back to the questions I asked to be discussed.

What becomes of 4th and 2nd amendment protections when the same unscrupulous cities, counties, agencies, etc. Change their focus from "policing for profit" to "policing to get guns"? By enforcing the agenda's of anti 2A politicians, by arbitrarily confiscating firearms using "Asset Forfeiture" statutes as justification?

Back on subject....What will happen? When the same bad actors now abusing the system to circumvent the 4th to line their coffers. Or new bad actors with anti 2A agendas decide to game the 4th and 2nd amendments by seizing firearms from LACs using the "Asset Forfeiture" dodge to deny lawful owners their guns?

The WAR ON DRUGS brought us "Policing for Profit". I believe we can agree that there is also an UNDECLARED war on lawful ownership of guns among leftist politicos and the LEAs they control.

What happens when some gun grabbing political tool like Chucky the Evil Puppet Beck. Sends his 9,000 minions on the mission of getting guns out of citizens hands, using "Asset Forfeiture". So they don't have to be bothered with the pesky building a criminal case or 4th amendment thing.

[fiddletown]

Sadly, No! you have not shown anything I posted is false. What you have done is link and post how "Civil Asset Forfeiture" should work as the Federal statutes are written. Which is diametrically opposite of how those statutes are actually applied by roadside bandits. And the crooked agencies who promote and support the "Policing for Profit" agenda.

Your [3] numbered examples of how it is supposed to work, are rendered moot by the 35,000 + examples of how the system is gamed in the real world. Which I linked. ...

Hogwash, and you have not met your burden of proof.

First, whether the law of civil forfeiture is applied correctly is not your call. That will be decided by courts. You might have an opinion, but no one cares. The world will continue conducting its business without regard to your opinions.

Second, your so called examples are a hodgepodge of scholarly articles questioning the wisdom of civil forfeiture even under the existing legal structure on a variety of policy and philosophical grounds to the usual tinfoil hat garbage that so often surfaces is these threads.

The scholarly analyses don't support your vitriolic braying -- full of sound and fury, signifying nothing. The questions of course of whether civil forfeiture is right or how it should be undertaken if at all are important and need to be addressed, but those questions will be considered by intelligent people educated in the subject matter and understanding the policy issues. I doubt that you will be invited to the table.

And while I'm grateful for the opportunity to have another glimpse into your fascinating alternate reality, I very seldom find any reason to give your views any serious consideration. The views you're expressing here are no different.

[pacrat]

Aha,
Now comes the infamous fiddletown "HOGWASH" defense. Same as always when you are disproven. Quickly followed with the historically predictable condescending attacks on any one's intelligence that dares to disagree with you. So predictable of an ivory tower academic who only lives in their own utopian world of law books. Without ever venturing into the real world of real streets and real abuses to the things you hold dear in those books.

Thousand upon thousands of verifiable real world references to actual victims of "Policing for Profit". And even damning videos of roadside bandits proudly plying their trade, while stupidly admitting to illegally confiscating others property is "vitriolic braying".

Your refusal to accept them, does not change the factual evidence of their existence.

First, whether the law of civil forfeiture is applied correctly is not your call.

Uh, Oh, you're projecting again, by inferring others said things they didn't. Another of your oft used transparent deflective tactics. When you can't factually disprove what another said. Just infer they said something that you can refute. Lame tactic at best. I never claimed "it is my call". But I do hold the opinion that it is an abomination that should be abolished. Because of the decades long rampant abuse it has given rise to. An opinion shared by many legal scholars BTW.

https://ij.org/wp-content/uploads/2015/11/policing-for-profit-2nd-edition.pdf

excerpt from page 20

Figure 8: Innocent Owner Burdens in Civil Forfeiture Laws
Note: See Appendix B for sources.

Cox lost her truck without ever having been accused
of a crime and without ever having gotten her day in court.
Innocent third-party owners who do make it to court will of-
ten face a bizarre and almost impossible task: proving their
own innocence.

As shown in Figure 8, innocent owner provisions in federal law and 35 states place the burden of proof on owners,
meaning that owners must prove they had nothing to do
with the alleged crime. In essence, most civil forfeiture laws
presume that people are connected to any criminal activity
involving their property and force them to prove otherwise
to recover it.Only 10 states and the District of Columbia demand
that the government prove owners did something wrong be-
fore forfeiting their property. In the remaining states, wheth-
er the burden of proof falls on the owner or the government
generally depends on the type of property involved. The
State Profiles and Appendix B provide greater detail.

Well damn, looky there. The scholarly analyses do support my alleged "vitriolic braying".

IJ has litigated over 200 cases, including five before the U.S. Supreme Court. Of those five cases, IJ won four of the cases before the Supreme Court and won the fifth case (the Kelo eminent domain case) in the court of public opinion.

The "IJ" has litigated over 200 government abuse cases since 1991. Has 103 employees, including 44 of which are attorneys. But hey, WTF do they know?

[fiddletown]

Aha,
Now comes the infamous fiddletown "HOGWASH" defense. Same as always when you are disproven.....

Nope, there's just no other response to your emotional arguments, such as:

....diametrically opposite of how those statutes are actually applied by roadside bandits. And the crooked agencies who promote and support the "Policing for Profit" agenda....

Conclusionary, denigrating comments appealing to emotion, not intellect.

....Quickly followed with the historically predictable condescending attacks on any one's intelligence that dares to disagree with you. So predictable of an ivory tower academic who only lives in their own utopian world of law books. Without ever venturing into the real world of real streets and real abuses to the things you hold dear in those books....

What makes you think I'm an academic? I practiced law out in the real world making things happen for real clients.

...Thousand upon thousands of verifiable real world references to actual victims of "Policing for Profit". And even damning videos of roadside bandits proudly plying their trade, while stupidly admitting to illegally confiscating others property is "vitriolic braying".

Your refusal to accept them, does not change the factual evidence of their existence....

Now you're just being silly. Your so called evidence was:

....I will provide 2 links in support of my opinion. If you choose, you can then argue with "youtube" and "Yahoo search" whether asset forfeiture "might well be abused".

10,400 results

https://www.youtube.com/results?search_query=policing+for+profit

24,900 results
https://search.yahoo.com/yhs/search?...&hsimp=yhs-001...

Links to YouTube and Yahoo searches? Really now? That's like citing that this Google link or this Yahoo link as evidence supporting gun control.

...https://ij.org/wp-content/uploads/20...nd-edition.pdf



Well damn, looky there. The scholarly analyses do support my alleged "vitriolic braying"....

Yes, there is considerable scholarship suggesting that civil forfeiture laws, at least those that shift the burden of proving innocence as an affirmative defense to the property owner, can be pernicious. But your arguments are still emotional -- vitriolic braying.

You haven't learned how to state your position in a reasoned, orderly, persuasive way backed by meaningful evidence. Instead, you puff and snort and beat your chest tossing around emotionally charged epithets like "banditry", "crooked", and "corrupt."

As a result, it's very easy to dismiss your opinions as mere ranting. And why that's a problem is because we, as advocates for the RKBA, need to learn to present our arguments more effectively. We need to better understand what is, and is not, evidence and how to present and use it effectively.

....The "IJ" has litigated over 200 government abuse cases since 1991. Has 103 employees, including 44 of which are attorneys. But hey, WTF do they know?

Phooey!

The same sorts of things can be said of the lawyers and law firms that won various pro-gun control court decision since Heller. Litigation is not about good public policy, truth, justice, or the American way. It's about winning in court for one's client.

[Jimi Jah]

I wonder what "burdon of proof" they used to ship that muslim video guy off to jail for getting blaimed for the Ben Gazi mistakes?

I wonder what "burdon of proof" the secret congressional hush fund used to pay off those women?

[AceGirlsHusband]

Pacrat, have you suffered an asset seizure recently?

[SVT-40]

Here is but one video linked by pacrat...

Nothing at all to do with asset forfeiture.

LOL..

Just an cop hating idiot who doesn't actually know the law.

In fact many of the videos linked as "proof" are simply cop blockers acting like fools and are about traffic tickets and those who don't take care of them and get warrants issues for their arrest.

https://www.youtube.com/watch?v=2_YsMTT7FPc

The "IJ" has litigated over 200 government abuse cases since 1991. Has 103 employees, including 44 of which are attorneys. But hey, WTF do they know?

LOL.. So over 26 years "IJ" has litigated 200 cases of "government abuse"

You do realize that's less than 8 per year?

How many of these so called "cases" involved asset forfeiture? Since many of "IJ's" cases involve other issues?

How many of the cases resulted in a decision for the plaintiff?

You do realize "IJ" is simply a law firm don't you?

http://www.ij.org/

Pathetic as usual.

[USMCM16A2]

Burden of 80 proof. A2