Archive for the ‘Forfeiture’ Category

WHAT HAPPENED: In 1882, Congress passed a law that granted ownership of a certain parcel of Native American land to American settlers.  That parcel of land, which was owned by the Omaha Tribe, became Pender, Nebraska.  Recently, the Omaha Tribe sought to enforce taxes and liquor licenses on local alcohol vendors on that parcel of land.  Pender and the State of Nebraska sought and received an injunction blocking the Tribes regulations.  That injunction was overturned at the Circuit level, ruling in favor of the Tribe’s ownership of the land.

WHY IS THIS BEFORE THE SUPREME COURT:  The Supreme Court’s unenviable task is to look at the 1882 law and determine whether or not that law passes the Court’s existing review for 19th Century Congressional acts that sold Native American Land.  This standard comes from the case of Solem v. Bartlett, which considers (1)  the language of the federal law at issue, (2) the history of the passage of the law, (3) and the treatment of the land afterward.  The Circuit Court decision stated that there was not conclusive evidence that this test favored Pender and Nebraska, which would revert the Congressional grant of land back to the Omaha Tribe.

WHAT IS THE RULING:  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION:  The people most at issue here are the parties in this case, as it is unlikely that this case will extend to other cases or other grants of land.  If the Court overturns the Circuit Court and favors Nebraska, it could signal the Court’s movement away from the old standard of review, but that would depend on the specific opinion.

ROOT FOR NEBRASKA IF:  You sell alcohol in Pender, Nebraska, or are one of the increasingly growing Americans who is unreasonably terrified of immigrants.

ROOT FOR PARKER IF:  If you have any recognition of American history whatsoever.



This case arose out of a wrongful death lawsuit against Iran for deaths caused by terrorism.  After a judgment was issued in favor of Plaintiffs, the Plaintiffs were unable to collect money to satisfy the judgment via traditional means.  Even though Iran had 2 billion dollars of funds in a New York bank, Federal law precluded plaintiffs from attaching those funds.


To compensate Plaintiffs for their injuries, Congress passed the Iran Threat Reduction and Syria Human Rights Act which allowed these specific Plaintiffs to obtain these specific funds.  This Act has been contested as an unconstitutional breach of the Separation of Powers doctrine, which disallows one branch of government from stepping on the toes of another branch of government.  This Act also could be construed as an unconstitutional Bill of Attainder, which prevents Congress from passing a law that only affects one specific person.


This case is not yet decided.


Presumably, if the law is struck down the Supreme Court will likely draw the ire of Congress and the President, who support the statute.  If the law is upheld, one would assume that Iran wouldn’t be super pumped about it, and this bodes fairly poorly for other sovereign nations who have either money or property within the U.S. under the expectation that it is protected from domestic attachments.


Love the Founding Fathers and would like to see the current government have egg on their face.   You are also probably ignoring all the terrorism implications.


Love the Patriot Act and don’t mind pissing off Iran.  You are also probably ignoring all the Constitutional implications.



Luis v. US

Posted: October 14, 2015 by beguide in case summaries, Criminal Procedure, Forfeiture
Tags: ,

WHAT HAPPENED:  Luis was arrested on charges of Medicare fraud to the tune of millions and millions of dollars.  As part of her arrest, the FBI froze her accounts, which had a similar tune of millions and millions of dollars.
WHY IS THIS BEFORE THE SUPREME COURT:  Under the 5th and 6th Amendment, criminal defendants are entitled to an attorney as part of their Due Process and Fair Trial rights.  It should be noted; however, those rights only give you an attorney, and not the best attorney or even a good attorney.  Luis argues that the freezing of her accounts denied her rights under the 5th and 6th amendment because she could not afford her attorney of choice.
WHAT IS THE RULING:  This case is not yet decided.
WHAT ARE THE RAMIFICATIONS OF THE DECISION:  The ramifications apply more to the concept of asset/civil forfeiture, which is the process under which the government seizes assets usually at the time of your arrest that the State believes are the product of criminal activity.  This practice has recently come under fire due to the fact that getting those assets back is not subject to the same protections a criminal defendant is afforded, and the State can often obtain ownership of the assets because of the complicated procedures that come along with fighting forfeiture.  On the furthest edge of possibility, this case could expand the meanings of a “right to attorney” under the 5th and 6th amendment to include a “right to an attorney of your choice”, but the implications of that seem a bit too far-reaching even for the most liberal of justices.
YOU SHOULD ROOT FOR LUIS IF:  You can ignore the fact that this case involves a millionaire accused of fraud, and instead see that this also applies to people with less assets who are subject to the same forfeiture regulations.
YOU SHOULD ROOT FOR THE US IF:  You favor a basic reading of the Constitution that does not expand the existing rights we have to solve ancillary problems that likely require some form of attention from the Supreme Court.  In other words, you make up at least 4/9ths of the current supreme court.