SB 595 and the Oregon Property Forfeiture Protection Act

eliduc · Mar 29, 2015

The Property Forfeiture Protection Act of 2008-The Oregon Constitution and Oregon SB 525.

The referendum 53, passed and codified in Oregon in 2008 requires that before property can be forfeited under Oregon's forfeiture law: 1. A person must have been convicted of a crime or: 2. A preponderance of the evidence must prove the property was the proceeds of a crime or an instrument used in the crime or: 3. that the preponderance of evidence proves the person knew the proceeds were from a crime or that the instrument (i.e. vehicle, weapon) was used in a crime. Money or a weapon in close proximity to illicit drugs would constitute prima facie evidence of money or an instrumentality connected to a crime and subject the property to forfeiture.

In any case, pursuant to the Oregon constitutional amendment before any forfeiture can take place any physical object (Firearm) that is forfeited must have first been used in or linked to a committed crime as proved by the evidence.

It would appear to a rational mind that SB 525 which would allow for the confiscation of personal property where no crime has been committed would be a violation of an amendment of the Oregon Constitution. Since all Oregon State legislators are bound by oath of office to uphold the Oregon constitution why wouldn't they be subject to recall for intentionally taking actions to violate the constitution? The recall might not be successful but it would receive publicity not otherwise available through liberal news media. It might slow down the ambitions of the sponsors of these bills. To do nothing is to lose.

PiratePast40 · Mar 29, 2015

Don't know about the recall, but the rest is spot on!

And I'm assuming that the title of the thread is incorrect and SB525 is what we're talking about.

frauhunter · Mar 29, 2015

eliduc said:
The Property Forfeiture Protection Act of 2008-The Oregon Constitution and Oregon SB 525.

The referendum 53, passed and codified in Oregon in 2008 requires that before property can be forfeited under Oregon's forfeiture law: 1. A person must have been convicted of a crime or: 2. A preponderance of the evidence must prove the property was the proceeds of a crime or an instrument used in the crime or: 3. that the preponderance of evidence proves the person knew the proceeds were from a crime or that the instrument (i.e. vehicle, weapon) was used in a crime. Money or a weapon in close proximity to illicit drugs would constitute prima facie evidence of money or an instrumentality connected to a crime and subject the property to forfeiture.

In any case, pursuant to the Oregon constitutional amendment before any forfeiture can take place any physical object (Firearm) that is forfeited must have first been used in or linked to a committed crime as proved by the evidence.

It would appear to a rational mind that SB 525 which would allow for the confiscation of personal property where no crime has been committed would be a violation of an amendment of the Oregon Constitution. Since all Oregon State legislators are bound by oath of office to uphold the Oregon constitution why wouldn't they be subject to recall for intentionally taking actions to violate the constitution? The recall might not be successful but it would receive publicity not otherwise available through liberal news media. It might slow down the ambitions of the sponsors of these bills. To do nothing is to lose.

Not a lawyer, and not overly familiar with the Act you quote - still, I think you might want to read through that again with an eye on the phrase "Preponderance of the Evidence".

Those of you who are in their late 40's / early 50's might still remember when you had a right to trial by jury and a court appointed attorney for even the most minor traffic violation and where the rules of evidence were close to those of a criminal proceedings. The people whom we trust to act in our interests changed this by redefining the nature of traffic violations from a 'crime' to an 'infraction' and thus, at the stroke of a pen, swept away those rights and made taxation by citation exponentially more profitable. 'Preponderance of Evidence', or the standard of evidence used in small claims court, is how it's done. It means damn near anything a judge wants it to mean, which usually defaults to the word of the police officer being given more weight then that of the accused. Very near to a presumption of guilt.

Regarding the Act, in a land of many laws, where the standard of evidence is set so low, I highly doubt that the requisite 'proof' would be difficult to find - and once found would satisfy the law and obviate your strongest argument. Even if after years of litigation at a cost of 10s of thousands of dollars the forfeiture was overturned, the State still has the initial 'evidence' to show they operated in good faith with due diligence and that just because they ultimately were proved wrong doesn't infer initial malevolence on their part. So, as I read this Act as it is presented, your property, whatever it may be, whatever the value, can be taken by the State with no greater standard of evidence then is required by a traffic court in a case involving failure to use a turn signal. And this is called the Forfeiture Protection Act? Gott Helfen Uns. Please tell me there are some facts not yet in evidence.

I agree that these people are desperately in need of replacement and that your ultimate conclusion is most correct. But I don't think it would pan out the way you envision. The politicians will just circle the lawyers, invoke the stupidity defense, maybe get a little negative publicity, but when the dust settles nothing will have changed and they would have suffered greater harm from a paper cut.

Did I mention I am something of a pessimist?

Ex Gladio Libertas

Jabba · Mar 30, 2015

Am I reading this wrong, or doesn't this bill give more protection against seizure than the current law? I'm not sure, but currently, isn't it the responsibility of the property owner to prove the seizure was wrong in order to get their stuff back? This would at least improve that. It would be better for the bill to state explicitly that large amounts of cash is not proof of a crime, and cannot be seized, and everything require a judge's order to seize.

PiratePast40 · Mar 30, 2015

Jabba said:
Am I reading this wrong, or doesn't this bill give more protection against seizure than the current law? I'm not sure, but currently, isn't it the responsibility of the property owner to prove the seizure was wrong in order to get their stuff back? This would at least improve that. It would be better for the bill to state explicitly that large amounts of cash is not proof of a crime, and cannot be seized, and everything require a judge's order to seize.

I don't see anything that is amended in the sections that discuss petition of the seizures. I also don't see anything that discusses disposition of the firearms and ammo that is seized.

Sstrand · Mar 30, 2015

Constitution . . . CONSTITUTION, you say . . .
We don't need not steeenkin' Constitution!?!?!?!?!

Sheldon

PiratePast40 · Mar 30, 2015

The more I look at this bill, the more I realize that it's written with the assumption that a crime has been committed and that someone has been convicted of that crime. In that case, property is seized and becomes the property of the state. The petition for reinstatement of rights has nothing to do with return of seized property. Only that the person now has the states permission to possess guns and ammunition.

In the case of a restraining order, there is no crime and we would normally assume that the restraining order would be lifted at some time in the future. But there is no language whatsoever that discusses return of the seized property when a crime was not committed. In fact, there is not even an accusation or suspicion of a crime. The only redress is the ability to petition the court, once a year, for your right to possess firearms, not to have your gun collection returned.

What would be the public action if this was based on skin color, sexual orientation, or religion, instead of a class of citizens that owned guns?

eliduc · Mar 30, 2015

I didn't include all of the history of ballot measure 53 because it would have made my post too long. Fed up with unjust forfeitures the voters had passed a prior ballot measure by something like 70 per cent that simply stated that there had to be a crime and conviction before a forfeiture. It was a great measure but it was challenged by law enforcement. Years passed before the case reached the Oregon Supreme Court. During that time there were virtually no forfeitures. The court ruled in favor of the people but the time limit had expired for the implementation of the original ballot measure.. The legislature, lobbied by law enforcement, then submitted the watered down version, BM53 which was passed by the voters by a very slim margin. The law still states that there must be a conviction of a crime before a forfeiture but with two exceptions. One exception said that if a perp was convicted of one crime, forfeitures could be made for money or instrumentality that were the result of other similar crimes. The other exception was that a forfeiture could be made if the evidence proved that a crime had been committed and the gain or instrumentality was a result of the crime.

The new 2008 ballot measure put law enforcement back into the multi million dollar forfeiture business. The good news is that almost all the forfeitures in 2013 were drug related and only 14 weapons were forfeited.

The bad news is that it appears that the Oregon State Police are using seizure funds to buy everything from cars to weapons and by far received the most money. Harney County made a lot of forfeitures considering their population. The really bad news is, guess who is the chairman of the Forfeiture Oversight Committee?

In relation to the present proposed anti firearms bill I think the key words here are "crime, prove, evidence." There has to be just cause and a temporary restraining order without evidence of a crime is not just cause. . I am not an attorney either but I see the Forfeiture Protection Act as a road block to the present anti firearms bill. Under current law before the seizure could be made there would either have to have been a conviction for domestic violence or the evidence that a crime of domestic violence had been committed involving a fire arm. A law authorizing the confiscation of personal property on the basis of a temporary restraining order being issued without cause would be a violation of the Act and constitution, in my layman opinion.

The members of the ASSET Forfeiture Committee and some interesting statistics are at <broken link removed>