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Old 14th September 2020, 10:36 PM   #1
Ranb
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What is Due Process?

I've been arguing with some of my Facebook friends about why Trump is not a good president. I was finally able to convince some of them that the C-Span video of Trump detailing his red-flag law proposal of "take the guns 1st, due process 2nd" is not fake.

One of my friends is a police officer who claims that he has used reasonable suspicion to seize firearms from people who might be a threat. I said this is a form of due process, he says it is not. I'm claiming that seizing property without any sort of prior due process is the same as stealing. Am I wrong?

I can't find the answer online. I have read about reasonable suspicion and probably cause, but not how they are related to due process. Links would be helpful. Thanks.

Ranb
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Old 15th September 2020, 04:36 AM   #2
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Originally Posted by Ranb View Post
I've been arguing with some of my Facebook friends about why Trump is not a good president. I was finally able to convince some of them that the C-Span video of Trump detailing his red-flag law proposal of "take the guns 1st, due process 2nd" is not fake.

One of my friends is a police officer who claims that he has used reasonable suspicion to seize firearms from people who might be a threat. I said this is a form of due process, he says it is not. I'm claiming that seizing property without any sort of prior due process is the same as stealing. Am I wrong?

I can't find the answer online. I have read about reasonable suspicion and probably cause, but not how they are related to due process. Links would be helpful. Thanks.

Ranb
It sounds similar to the same kind of BS they use to justify Asset Forfeiture, which very often is straight up state sponsored theft of private property
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Old 15th September 2020, 05:39 AM   #3
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Originally Posted by rockysmith76 View Post
It sounds similar to the same kind of BS they use to justify Asset Forfeiture, which very often is straight up state sponsored theft of private property
yeah, would be interesting to know if your FB pal thinks Asset Forfeiture is "due process" or not.
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Old 15th September 2020, 06:08 AM   #4
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Originally Posted by Ranb View Post
I've been arguing with some of my Facebook friends about why Trump is not a good president. I was finally able to convince some of them that the C-Span video of Trump detailing his red-flag law proposal of "take the guns 1st, due process 2nd" is not fake.

One of my friends is a police officer who claims that he has used reasonable suspicion to seize firearms from people who might be a threat. I said this is a form of due process, he says it is not. I'm claiming that seizing property without any sort of prior due process is the same as stealing. Am I wrong?

I can't find the answer online. I have read about reasonable suspicion and probably cause, but not how they are related to due process. Links would be helpful. Thanks.

Ranb
Realistically, cops and other state actors do things all the time that wouldn't pass court review. Defending your civil rights in court is a major burden on the victim, and for small breaches, it's often not pursued.

So yeah, it's probably a due process violation, but falls under the broad umbrella of "what you gonna do about it?" Fat chance of finding a lawyer that will be cheaper than whatever gun you got stolen from you.

2A advocacy groups (that aren't too busy stealing organization money to enrich parasitic executives) will occasionally challenge such violations if they are occurring on an egregious enough scale. Individual incidents of getting screwed usually requires personal funding to rectify.
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Old 15th September 2020, 06:30 AM   #5
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For me, there's no bright line or clear-cut definition. Due process starts somewhere around court review. Getting a warrant? Due process. Going in without a warrant on "reasonable suspicion"? Maybe. I don't think there's much point to debating whether specific police officer actions are part of "due process". I don't think there's going to be a clear answer to that.

What I think of as "due process" is the process that starts with reviewing police actions in a case. Not the actions themselves. The search and seizure is not the due process. The court considering a motion to dismiss because of an illegal search and seizure is the due process.

I.e., the police aren't the primary purveyors of due process.
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Old 15th September 2020, 06:54 AM   #6
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This sounds like a debate of procedural vs substantive concepts of due process.

I'm in the Scalia-procedural camp.
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Old 15th September 2020, 06:57 AM   #7
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Originally Posted by BobTheCoward View Post
This sounds like a debate of procedural vs substantive concepts of due process.

I'm in the Scalia-procedural camp.
I'm struggling to see how process could not be procedural. It's literally the adjectival form of a synonymous noun.

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Old 15th September 2020, 07:06 AM   #8
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Originally Posted by theprestige View Post
For me, there's no bright line or clear-cut definition. Due process starts somewhere around court review. Getting a warrant? Due process. Going in without a warrant on "reasonable suspicion"? Maybe. I don't think there's much point to debating whether specific police officer actions are part of "due process". I don't think there's going to be a clear answer to that.

What I think of as "due process" is the process that starts with reviewing police actions in a case. Not the actions themselves. The search and seizure is not the due process. The court considering a motion to dismiss because of an illegal search and seizure is the due process.

I.e., the police aren't the primary purveyors of due process.
This. Enforcement may be thugs, but ultimately the accused will not be subject to capricious legalities.
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Old 15th September 2020, 07:21 AM   #9
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Originally Posted by theprestige View Post
I.e., the police aren't the primary purveyors of due process.
In one of my previous positions, I worked collections for the IRS. Before we could take a single penny, we had to exhaust their appeal rights. Takes about 5 notices. All of that before we can levy or lien.

Not that this has anything to do with a beat cop, who are working in a different reality. They don't have to give warnings before arrest for example. The state, has to provide the due process after arrest, and in a timely manner, in order to keep you locked up.

But that just might be the difference between civil and criminal law.
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Old 15th September 2020, 07:46 AM   #10
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Originally Posted by Dave Rogers View Post
I'm struggling to see how process could not be procedural. It's literally the adjectival form of a synonymous noun.

Dave
They are legal terms, As such, the meaning is specific to the field and separate from the common meaning


https://www.law.cornell.edu/wex/substantive_due_process
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Old 15th September 2020, 08:08 AM   #11
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Originally Posted by Ranb View Post
One of my friends is a police officer who claims that he has used reasonable suspicion to seize firearms from people who might be a threat.
I'm not entirely sure what this means. Is he talking about holding on to someone's pistol while that individual is stopped for some other reason (such as fitting the description of a burglary suspect)? That's legal, and doesn't even rise to the level of "seizure" as I understand it. However, if he has reasonable suspicion that a suspect has committed a crime, holds on to their pistol during questioning, and then lets the person go without an arrest, then he has to give the gun back.
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Old 15th September 2020, 08:25 AM   #12
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Originally Posted by BobTheCoward View Post
They are legal terms, As such, the meaning is specific to the field and separate from the common meaning


https://www.law.cornell.edu/wex/substantive_due_process
Strictly speaking, due process is any process that is due.
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Old 15th September 2020, 01:40 PM   #13
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Originally Posted by I Am The Scum View Post
I'm not entirely sure what this means. Is he talking about holding on to someone's pistol while that individual is stopped for some other reason (such as fitting the description of a burglary suspect)? That's legal, and doesn't even rise to the level of "seizure" as I understand it. However, if he has reasonable suspicion that a suspect has committed a crime, holds on to their pistol during questioning, and then lets the person go without an arrest, then he has to give the gun back.

These statements were made on Facebook.
Quote:
You can take away someone’s freedom for up to 48 hours based upon ‘probable cause’ (I.e. what a reasonable and prudent person would believe to be true given the circumstances surrounding the situation) then their ‘due process’ takes place later in court when you need to prove ‘beyond a reasonable doubt’ in order to secure a conviction. That is our Justice System


And this one after I suggested that taking away property prior to any due process was the same as theft.

Quote:
Reasonable suspicion is NOT probable cause. Reasonable suspicion is a lower threshold. Theft is the permanent loss of or deprivation of use of your property NOT the temporary deprivation until due process is completed. I temporarily took individual’s firearms away from them for ‘safety reasons’ dozens of times during my career (beginning back in the mid 1980’s) when I had reason to believe that the individual was an imminent threat to the safety of themselves or others. I then signed them in on an “Emergency Transportation Hold” for up to 72 hours.
Quote:
Concern for “Public Safety“ is exactly what State governors are now invoking while TEMPORARILY taking away citizens’ constitutional rights without due process. Read MN Statute 253B.05 so you understand how and why certain individuals can have their freedom temporarily removed/restricted BEFORE due process takes place. The same applies to firearms they might possess/have access to and/or use on themselves or others while this due process is taking place.


I responded with;
Quote:
I read 253B.05. It says in part that a peace officer may take a person into custody if they believe through direct observation or upon information from others that the person is a threat to themselves or others.
I'm suggesting that this is a form of due process. Are you saying it is not?
The relevant statute is here; https://www.revisor.mn.gov/statutes/cite/253B.05


I've had to admit I was wrong before, so if I'm wrong now, it is nothing new. I just prefer to know when due process starts. Does it start when a police officer sees something while out and about, or does it only start once a judge is presented with evidence and makes a decision?
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Old 15th September 2020, 02:11 PM   #14
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Let me see if I understand. Your contention boils down to this:

Originally Posted by Ranb View Post
I suggested that taking away property prior to any due process was the same as theft.
Is that correct?

If so, what exactly are you referring to? If it's something like civil forfeiture, I could see an argument that it's effectively theft.

If it's something like securing a firearm for the officer's safety during a routine investigation, or impounding a vehicle while processing a DUI, I'd like to see your reasoning.
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Old 15th September 2020, 03:45 PM   #15
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It started out as a discussion of red flag laws. Here is an example from the WA RCW's. https://app.leg.wa.gov/RCW/default.aspx?cite=7.94 In WA they are called extreme risk protection orders.

C-span has a video of Trump, Pence and others discussing solutions and reactions to gun violence. VP Pence expressed a need for red-flag laws that allowed law enforcement to seize weapons from people who were deemed to be a threat to themselves or others. Pence said that due process would be used to ensure guns were seized legally.

Trump disagreed, saying, take the guns 1st, due process 2nd. https://www.c-span.org/video/?c47165...process-second

I'm of the opinion that if there is no due process, then it is similar to theft.

But I'm being told on Facebook that a police officer can seize firearms from a person based upon reasonable suspicion; something he says is not due process.

Is this "reasonable suspicion" actually a form of due process?
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Old 15th September 2020, 04:14 PM   #16
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I am not a lawyer or police officer... but according to wikipedia, I think your friend might be correct. Taking away a person's firearms out of concern for potential harm would be considered depriving them of their property as well as their constitutional liberty. I think it ends up there because the person isn't afforded opportunity to present reasons for why the action (seizing their firearms) should NOT be taken prior to the action occurring. They get stuck with a 48 or 72 hour loss of their property on suspicion alone, without recourse to address whether it was justified or not.

There might be some tolerance for the lack of due process though, because it's not a forfeiture; they'll get those firearms back in a specified amount of time unless charges are filed or further action taken... and I'm assuming that if further action is taken, then the person in question does have access to due process at that time.
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Old 15th September 2020, 04:19 PM   #17
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The law that provides for seizure with reasonable suspicion is the due process. The next step of the process is for the person doing the seizing to articulate why the suspicion is reasonable.

Until the Supreme Court rules that the law is unconstitutional, and therefore not due process after all.

Trump, of course, couldn't articulate his way out of a paper bag even when he's in the right. So I'm not really at all interested in what he has to say about the idea. I'm more interested in what the law actually provides for, and what is actually done by law enforcement officials on that basis.

---

I gather his basic premise is one of preemption: We don't want to wait until after a tragedy to act to prevent it. When the risk is high, it's justified to act first, and then do a thorough review of the situation. But "probable cause", "reasonable suspicion", etc. are always going to be grey areas, not systems of formal logic.

---

I also don't think it's akin to theft. Oppression, sure. But something like civil forfeiture is pretty much intended to enrich the jurisdiction without giving the citizen the process they're morally due.

Preemptive seizure isn't about enriching the government. It's about overreaching in the name of public safety. Theft is a kind of taking, but not all takings are theft.
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Old 15th September 2020, 04:46 PM   #18
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Thanks for the info guys.
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Old 15th September 2020, 04:49 PM   #19
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Originally Posted by Emily's Cat View Post
I am not a lawyer or police officer... but according to wikipedia, I think your friend might be correct. Taking away a person's firearms out of concern for potential harm would be considered depriving them of their property as well as their constitutional liberty. I think it ends up there because the person isn't afforded opportunity to present reasons for why the action (seizing their firearms) should NOT be taken prior to the action occurring. They get stuck with a 48 or 72 hour loss of their property on suspicion alone, without recourse to address whether it was justified or not.

There might be some tolerance for the lack of due process though, because it's not a forfeiture; they'll get those firearms back in a specified amount of time unless charges are filed or further action taken... and I'm assuming that if further action is taken, then the person in question does have access to due process at that time.
Doesn't the same thing apply to a garden-variety arrest? Cops take you to jail, and there you sit until they decide to press charges or some time limit expires. You can remonstrate all you want, but the cops don't have to justify anything to you or let you have any kind of say at all.
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Old 15th September 2020, 05:13 PM   #20
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Reasonable suspicion is the burden of proof necessary to temporarily detain but NOT arrest an individual regarding a potential crime. As in terry stop. An officer is not allowed to conduct a search of the individual being detained (without his or her consent) beyond a "stop and frisk". I am a little hazy on the legalities, but to the best of my understanding an officer that finds a weapon may temporarily secure it during the course of said detainment.

An actual arrest requires "probable cause". During the course of an arrest, an officer may seize contraband, weapons, or other materials deemed pertinent to potential charges to the best of my understanding (probably varying on a state by state basis).
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Old 16th September 2020, 03:42 AM   #21
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Suspect A: Threatens to use his AR15 to murder his entire family.

LEO: Confiscates Suspect A's AR15, and ammunition, and any other firearms and ammunition he owns

Theft?
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Old 16th September 2020, 03:45 AM   #22
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Originally Posted by smartcooky View Post
Suspect A: Threatens to use his AR15 to murder his entire family.

LEO: Confiscates Suspect A's AR15, and ammunition, and any other firearms and ammunition he owns

Theft?
That's hardly every single case out there though
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Old 16th September 2020, 03:54 AM   #23
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Originally Posted by rockysmith76 View Post
That's hardly every single case out there though
It doesn't matter if its a single case or multiple cases.

If confiscating firearms because the LEO has probable cause is theft, then the above example is also theft. If the above example is not theft, then nor is confiscating firearms because the LEO has probable cause.

If you say that confiscating firearms because the LEO has probable cause is theft but the above example is not, then you create a problem for the LEO. Not only does he now have to determine whether or not there was probable cause, you are now asking him to determine the degree of that probable cause. You are asking him to judge where to draw the line and have made things a lot harder and lot more complicated for him.
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Old 16th September 2020, 05:04 AM   #24
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The question is, are the police officer's actions a form of due process based upon the fact he was told that Suspect A made a threat and owned firearms, or is it something else?
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Old 16th September 2020, 06:10 AM   #25
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Originally Posted by SuburbanTurkey View Post
Realistically, cops and other state actors do things all the time that wouldn't pass court review. Defending your civil rights in court is a major burden on the victim, and for small breaches, it's often not pursued.
This is it right here. There is plenty of due process assuming that we don't look beyond formalism and ignore practical effect of costs of litigation and immunity doctrines.

Quote:


So yeah, it's probably a due process violation, but falls under the broad umbrella of "what you gonna do about it?" Fat chance of finding a lawyer that will be cheaper than whatever gun you got stolen from you.
It isn't, at least technically. That you can get a lawyer and fight the issue is what makes it more of a police conduct search/seizure issue than a due process issue. That this would be wildly impractical doesn't enter into it because the legal system taking practical issues into effect would hamper their ability to be an enforcement mechanism for the rich and powerful while claiming to be neutral.
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Old 16th September 2020, 01:45 PM   #26
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Originally Posted by theprestige View Post
Doesn't the same thing apply to a garden-variety arrest? Cops take you to jail, and there you sit until they decide to press charges or some time limit expires. You can remonstrate all you want, but the cops don't have to justify anything to you or let you have any kind of say at all.
If they arrest you, they have to tell you what you're being charged with as well as providing your miranda rights. But yeah, you don't really get to counter those initial charges prior to them arresting you. I don't believe they can compel you to come in for questioning, but I really don't know. Depends how accurate TV shows are!
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Old 16th September 2020, 02:00 PM   #27
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Originally Posted by Emily's Cat View Post
If they arrest you, they have to tell you what you're being charged with as well as providing your miranda rights.
Not really. They generally have to immediately (or in some time frame) take you before a judicial officer for being told the charges, but the cops themselves don't have to do much else. They only do the second if they want to question you.
Quote:


But yeah, you don't really get to counter those initial charges prior to them arresting you.
Oh, they will be perfectly willing to listen to you try to talk your way out of it. Of course that is usually just them hoping you say something incriminating or even that sounds incriminating.
Quote:




I don't believe they can compel you to come in for questioning, but I really don't know. Depends how accurate TV shows are!
Depends on what you mean by compel. They can threaten and lie to get you to do it. But to literally force you to come in they have to arrest and at that point a request for a lawyer cuts them off from questioning.
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Old 16th September 2020, 02:18 PM   #28
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Originally Posted by Emily's Cat View Post
If they arrest you, they have to tell you what you're being charged with as well as providing your miranda rights. But yeah, you don't really get to counter those initial charges prior to them arresting you. I don't believe they can compel you to come in for questioning, but I really don't know. Depends how accurate TV shows are!
My understanding is that they don't have to give you the Miranda warning. They choose to do it so as to close the Miranda loophole that threatens to invalidate the arrest. I think there's even been court cases where the judge has ruled that the defendant could reasonably be assumed to know their rights, and that not having them read out wasn't a problem for the arrest.
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Old 17th September 2020, 02:15 AM   #29
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Originally Posted by Suddenly View Post
Depends on what you mean by compel. They can threaten and lie to get you to do it. But to literally force you to come in they have to arrest and at that point a request for a lawyer cuts them off from questioning.
Originally Posted by Emily's Cat View Post
I don't believe they can compel you to come in for questioning, but I really don't know. Depends how accurate TV shows are!
You are both correct. AFAIK, the law in this regard is the same in thr US as it is in UK, Canada, Australia and New Zealand.

I have related this story before, on this forum so I will repost it verbatim from my previous post
Many years ago, I was questioned about an assault on my ex-girlfriend (I had a rock solid alibi; it happened in Christchurch and was in Australia at the time).

The Police came to my work place and wanted me to accompany them to the Police station.They didn't tell me why, and I know my rights so I said no. One of the two cops said something like "being uncooperative won't help you". I said, something like "I know my rights. If you want me to come with you, you will have to arrest me. Are you arresting me?". They didn't answer immediately, but then the other cop said something like "Why not. If you've done nothing wrong, you have nothing to fear" and I remember exactly what I said next. I laughed and said "I have three words for you... Arthur, Allan, Thomas"*. I could see the pair of them were not happy with that response, so I quickly said words to the effect that "If you want to interview me, I am happy for you to do so at my home, with my solicitor present". With that, they left and later we arranged the interview over the phone.

Once they realised that my alibi was sound they lost interest in me.

My advice to anyone who gets involved as a suspect or a person of interest with the Police is that

1. You do not have to answer any of their questions
2. You do not have to go with them unless they arrest you

Aside:
* For those who don't know the case, Arthur Allan Thomas was a NZ farmer who was nothing but totally and naively cooperative with Police investigating a double murder. He was later wrongfully convicted of that double murder and then wrongfully convicted again at a retrial. He was pardoned nine years later after a Royal Commission report explicitly stated that two detectives had planted evidence at the crime scene to frame Thomas, having used ammunition and a rifle taken from his farm to fabricate that evidence.
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Old 17th September 2020, 04:24 AM   #30
SuburbanTurkey
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Originally Posted by Suddenly View Post



It isn't, at least technically. That you can get a lawyer and fight the issue is what makes it more of a police conduct search/seizure issue than a due process issue. That this would be wildly impractical doesn't enter into it because the legal system taking practical issues into effect would hamper their ability to be an enforcement mechanism for the rich and powerful while claiming to be neutral.
Sure, but due process is inextricably involved. The difference between and proper and improper taking is whether codified processes are followed, which would be your due process.

Speaking more broadly, it's a fifth amendment issue, in which due process and deprivation of property are both covered.
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