IN THE SEVENTH JUDICIAL DISTRICT
IN AND FOR SCOTT COUNTY
STATE OF IOWA Motion to Stay or Dismiss Further Proceedings
Plaintiff (Inspired by the work of Attorney Marcus Hill)
vs.
Steve Bloomer Case No: AGCR
Defendant
NOW COMES the Defendant and submits the following brief, supporting his motion to dismiss or stay all further proceedings.
STATEMENT OF FACTS
Defendant was arrested on Feburary , 2010 and charged with driving while barred and Joey Nussbaum of Buffalo PD took his car via. Fred’s 66 who sold it.
STATEMENT OF THE LAW
Is the sale of the Defendants car a civil penalty, civil forfeiture or a tax?
The U.S. Supreme Court has established that civil penalties, civil forfeitures and tax impositions may constitute double jeopardy for a defendant in certain circumstances.
Civil Penalty
The United States Supreme Court has found that a defendant in certain circumstances is deprived of property without due process when an additional civil penalty is assessed after a defendant's underlying conviction. Thus, the state can be prevented from further prosecution by the double jeopardy clause of the United States Constitution.
For example, the Court in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), held that a disproportionate civil fine imposed after defendant's conviction constituted punishment for double jeopardy purposes. In Halper the Court noted that the fine was more than 220 times greater than the government's damages. In a later case the Court again acknowledged that a civil penalty may be so extreme and so divorced from the Government's damages and expenses as to constitute punishment for double jeopardy purposes.. U.S. v. Ursery, 518 U.S. 267, 280, 116 S.Ct. 2135, 2143 (1996).
The Court in Ursery emphasized that whether a civil fine subjects an already prosecuted defendant to double jeopardy is determined on a case-by-case basis. In the present case the motor vehicle was seized pursuant to Iowa Code 321.89 Abandoned Vehicles. The Government has not specified the damages actually suffered by it in this case. In this case the defendant should be entitled to an accounting of the Government's damages and costs to determine if the penalty sought in fact constitutes a second punishment. 518 U.S. at 282.
Any money left over after the vehicle's sale and payment of lienholders.. "Civil penalties are designed as a rough form of ‘liquidated damages' for the harms suffered by the Government as a result of a defendant's conduct." 518 U.S. 283-4. In this case, it is arguable whether the money from the vehicle sale was a civil penalty because it was not a fixed amount. However, if it was a penalty, this penalty apparently bears no rational relation to the goal of compensating the Government for its loss but rather appears to qualify as "punishment" in the plain meaning of the word.
Civil Forfeiture
In U.S. v. Ursery, the Court recognized that at common law in many cases the right of forfeiture does not attach until the offending person has been convicted and the record of conviction produced. 518 U.S. at 275. In our system, the defendant is presumably innocent until proven guilty. In this case this presumption was turned on its head.
In U.S. v. Ursery, the Supreme Court used the two prong test propounded in United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099 (1984). to determine whether the taking at issue was a civil forfeiture. First, the Court asked whether the Congress intended the proceedings at issue to be criminal or civil. The Court noted that Congress' intent in this regard is most clearly demonstrated by the procedural mechanisms established for enforcing forfeitures under the statutes. In support of its determination that a civil forfeiture was at issue, the Court noted that one such procedural mechanism in 18 U.S.C. 981 is entitled "Civil Forfeiture."
In U.S. v. Ursery, the Court also found another reason buttressing their conclusion that the forfeiture at issue was civil. The forfeiture statutes provided that actual notice of the impending forfeiture is unnecessary when the Government cannot identify any party with an interest in the seized property and such seized property is subject to forfeiture through a summary administrative procedure if no party files a claim to the property.
Another reason to consider the forfeiture as civil in U.S. v. Ursery was that the burden of proof in such forfeiture proceedings shifted to the defendant once the Government had shown probable cause that the property was subject to forfeiture.
321.89 ABANDONED VEHICLES.
1. Definitions. As used in this section and sections 321.90
and 321.91 unless the context otherwise requires:
a. "Abandoned vehicle" means any of the following:
(4) A vehicle that has been legally impounded by order of a
police authority and has not been reclaimed for a period of ten days.
However, a police authority may declare the vehicle abandoned within
the ten-day period by commencing the notification process in
subsection 3.
3. Notification of owner, lienholders, and other claimants.
a. A police authority or private entity that takes into
custody an abandoned vehicle shall notify, within twenty days, by
certified mail, the last known registered owner of the vehicle, all
lienholders of record, and any other known claimant to the vehicle or
to personal property found in the vehicle, addressed to the parties'
last known addresses of record, that the abandoned vehicle has been
taken into custody. Notice shall be deemed given when mailed. The
notice shall describe the year, make, model, and vehicle
identification number of the vehicle, describe the personal property
found in the vehicle, set forth the location of the facility where
the vehicle is being held, and inform the persons receiving the
notice of their right to reclaim the vehicle and personal property
within ten days after the effective date of the notice upon payment
of all towing, preservation, and storage charges resulting from
placing the vehicle in custody and upon payment of the costs of
notice required pursuant to this subsection. The notice shall also
state that the failure of the owner, lienholders, or claimants to
exercise their right to reclaim the vehicle or personal property
within the time provided shall be deemed a waiver by the owner,
lienholders, and claimants of all right, title, claim, and interest
in the vehicle or personal property and that failure to reclaim the
vehicle or personal property is deemed consent to the sale of the
vehicle at a public auction or disposal of the vehicle to a
demolisher and to disposal of the personal property by sale or
destruction. If the abandoned vehicle was taken into custody by a
private entity without a police authority's initiative, the notice
shall state that the private entity may claim a garagekeeper's lien
as described in section 321.90, subsection 1, and may proceed to sell
or dispose of the vehicle. If the abandoned vehicle was taken into
custody by a police authority or by a private entity hired by a
police authority, the notice shall state that any person claiming
rightful possession of the vehicle or personal property who disputes
the planned disposition of the vehicle or property by the police
authority or private entity or of the assessment of fees and charges
provided by this section may ask for an evidentiary hearing before
the police authority to contest those matters. If the persons
receiving notice do not ask for a hearing or exercise their right to
reclaim the vehicle or personal property within the ten-day
reclaiming period, the owner, lienholders, or claimants shall no
longer have any right, title, claim, or interest in or to the vehicle
or the personal property. A court in any case in law or equity shall
not recognize any right, title, claim, or interest of the owner,
lienholders, or claimants after the expiration of the ten-day
reclaiming period.
In the present case, pursuant to Iowa Code Section 321.89 Abandoned Vehicles, a vehicle that has
been legally impounded by order of a police authority and has not been reclaimed for a period of ten days.
however, a police authority may declare the vehicle abandoned within the ten-day period by commencing the
notification process in subsection 3.
Iowa Code Section 321.89 in part states:
“…..If the abandoned vehicle was taken into custody by a private entity without a police authority's initiative, the notice shall state that the private entity may claim a garagekeeper's lien as described in section 321.90, subsection 1, and may proceed to sell or dispose of the vehicle. If the abandoned vehicle was taken into
custody by a police authority or by a private entity hired by a police authority, the notice shall state that any person claiming rightful possession of the vehicle or personal property who disputes the planned disposition of the vehicle or property by the police authority or private entity or of the assessment of fees and charges provided by this section may ask for an evidentiary hearing before the police authority to contest those matters.
OBJECTION! Never, ever, in any case where the cops have taken the Defendants car have they “Noticed” him they would be selling his car. Never includes this case. Procedural due process has not been waived at any time. Including now. See Miranda v. Arizona 384 U.S. 436 (1966).
OBJECTION! The Defendant has the right to heard before a judge who can make legal determinations and issue Orders to enforce rights. The police are not judges and do not have a license to practice law and cannot make decisions affecting the rights of the Defendant and cannot issue Orders for the corporation they serve.
The second prong of the test as to the issue of the forfeiture's being civil or criminal is whether the
Forfeiture proceedings are so punitive in fact as to establish that they may not legitimately be viewed as civil in
nature , despite any congressional intent to establish a civil remedial mechanism.
In the present case the forfeiture was so punitive in fact as to establish that it may not be legitimately viewed as
civil, despite any legislature's intent. The forfeiture in practice is criminal. In any event, whether the forfeiture is
deemed criminal or civil, its imposition subjects the defendant to jeopardy.
A Punitive State Tax
If found innocent, the Defendant never receives the return of the vehicle.
In Department of Revenue of Mont. v. Kurth Ranch, 518 U.S. 267, 282, 116 S.Ct. 2135 (1994), the Court considered whether a state tax imposed on marijuana was invalid under the Double Jeopardy Clause when the taxpayer had already been criminally convicted of owning the marijuana that was taxed.
"We first established that the fact that Montana had labeled the civil sanction a ‘tax' did not end our analysis. We then turned to consider whether the tax was so punitive as to constitute a punishment subject to the Double Jeopardy Clause. Several differences between the marijuana tax imposed by Montana and the typical revenue-raising tax were readily apparent. The Montana tax was unique in that it was conditioned on the commission of a crime and was imposed only after the taxpayer had been arrested: Thus, only a person charged with a criminal offense was subject to the tax. We also noted that the taxpayer did not own or possess the taxed marijuana at the time that the tax was imposed. From these differences, we determined that the tax was motivated by a " ‘penal and prohibitory intent rather than the gathering of revenue.' . . . Concluding that the Montana tax proceeding ‘was the functional equivalent of a successive criminal prosecution,' we affirmed the Court of Appeals' judgment barring the tax.
In the present case, the forfeiture is conditioned on the commission of a crime and imposed only after the taxpayer had been arrested. Thus, only a person charged with a criminal offense was subject to the tax
Certainly, the defendant in the present case did not possess the motor vehicle at the time it was sold. It is clear that the tax is motivated by a penal and prohibitory intent rather than the gathering of revenue.
Conclusion
In summary, whether the forfeiture in the present case is labeled a civil penalty, a civil forfeiture or a punitive state tax, its application in the present case is surely penal and subjects the defendant to double jeopardy.
The Defendant is entitled to leeway in his pleadings see Haines VS. Kerner, 404 USS 519; 1972
This the ______ day of _____________, 2011.
_______________________
Defendant