Confiscation!


I have been following stories of government confiscations for quite some time now, and have found two stories this week which relate directly to Minnesota.

Before we look at these stories, though, let’s review the highest laws which apply to confiscations, found both in the Minnesota Constitution and the U.S. Constitution.

We’ll start with the Minnesota Constitution, Article One, the Bill of Rights.

Sec. 7. Due process; prosecutions; double jeopardy; self-incrimination; bail; habeas corpus.

No person shall be held to answer for a criminal offense without due process of law, and no person shall be put twice in jeopardy of punishment for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law. All persons before conviction shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great. The privilege of the writ of habeas corpus shall not be suspended unless the public safety requires it in case of rebellion or invasion.

Here’s the applicable text in this section, “nor be deprived of life, liberty or property without due process of law. So what is the due process of law? Again, from Article One:

Sec. 6. Rights of accused in criminal prosecutions.

In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county or district wherein the crime shall have been committed, which county or district shall have been previously ascertained by law. In all prosecutions of crimes defined by law as felonies, the accused has the right to a jury of 12 members. In all other criminal prosecutions, the legislature may provide for the number of jurors, provided that a jury have at least six members. The accused shall enjoy the right to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel in his defense.

First, we all have a right to be tried by a jury of our peers. We can not be found guilty of a crime without this unless we waive our right to a jury trial. We also have a right to confront witnesses and see the evidence brought against us. Further elaboration from Article One:

Sec. 4. Trial by jury.

The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy. A jury trial may be waived by the parties in all cases in the manner prescribed by law. The legislature may provide that the agreement of five-sixths of a jury in a civil action or proceeding, after not less than six hours’ deliberation, is a sufficient verdict. The legislature may provide for the number of jurors in a civil action or proceeding, provided that a jury have at least six members.

One last item before we leave the Bill of Rights:

Sec. 10. Unreasonable searches and seizures prohibited.

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.

Here we see that “no warrant shall issue but upon probable cause…..particularly describing…..things to be seized.” Who issues these warrants? The Judge, part of the Judicial Branch. From Article Six, Section Three, of the Minnesota Constitution, we find the text which gives the Judge this authority:

Sec. 3. Jurisdiction of district court.

The district court has original jurisdiction in all civil and criminal cases and shall have appellate jurisdiction as prescribed by law.

In addition to this, the State Constitution, in Article Three, Section One, prohibits any branch of government from performing the functions of another branch. Hence, it is unconstitutional, as the Constitution is now written, for either the executive or Legislative Branches to perform the designated function of a Judge.

Section 1. Division of powers.

The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.

To put this in the simplest terms possible, the only proper way for a person’s property to be confiscated is either by warrant issued by a Judge, or by a conviction followed by the sentencing of a Judge. Any other forms of confiscation related to criminal accusation are in violation of the Minnesota Constitution. To strengthen this arguments, we can also point out that these sections in the State Constitution mirror Amendments Four and Five of the United States Constitution:

Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Now that we have  explored the protections against confiscation which we are supposed to enjoy, let’s move on to the articles in question.

The first is from the Star Tribune. This article describes a proposed law which would require law enforcement to return all property confiscated in drug cases if there is no conviction. Please go to the Star Tribune site and read the whole article for yourself, as I will not go into detail here, except for two points. The first point was made in the original article, stating that confiscations increased 75% between the years 2003 and 2010 in the state, resulting in a $30 million gain in revenue from these forfeitures, although the actual crime rate fell slightly during the same time frame. My second point is, as demonstrated above, that it is exclusively the responsibility of the Judicial Branch, whether by warrant or conviction, to confiscate property as a result of a criminal charge. Not only is it outside of the purview of the Legislative and Executive Branches to do so, they are also expressly forbidden from doing so by the Minnesota Constitution.

Our next article to look at comes from the Pioneer Press. Take a look at this one as well. This article relates of a Bill proposed by Rep. Carly Melin which would make it more difficult for the DNR to confiscate the firearm of a first time offender caught baiting deer. Sure, we can all agree that deer baiting is illegal and gives an increased advantage to the hunter, and I congratulate Rep. Melin for the initial step in the right direction, but there is a Constitutional question here as well. The DNR is a part of the Executive Branch of government, and as such, they have no authority to confiscate property of someone they encounter afield just because they have cause to ask the prosecutor to charge this person with a crime. Yes, it is a reasonable safety precaution for the officer to temporarily relieve the person in question of any weapons, but as soon as this person is released from custody, their property should be immediately returned to them, at no cost, until such time as a Judge, a member of the Judicial Branch, orders otherwise.

Are we prepared to let our State, and our Country, follow the path which so many nations before traveled, allowing the executives, for expedience sake, engage in the confiscation of our property, which is an integral part of our freedom, without so much as a complaint? Will we let our very freedom slip away from us by allowing this sort of activity to take place? Do we not value the fact that we are supposed to be protected from such confiscations until we have had the opportunity to defend ourselves in court, in front of a jury of our peers? Maybe we think that it is not important because it only happens to the “other guy.” That’s what most of those people used to think, too. It’s time to hold our representatives to a higher standard.

Mike Vroman.

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