The Institute for Justice, The Cato Institute, and others file an Amicus Brief in Support of the Megaupload Defendants' Petition to the United States Supreme Court

Today numerous public interest groups filed an Amicus brief in support of the Megaupload defendants' petition to the United States Supreme Court.

The groups consist of: Institute for Justice, The Cato Institute, The DKT Liberty Project, Drug Policy Alliance, Americans for Forfeiture Reform, and California Attorneys for Criminal Justice.

The Amici stated in their papers that:

"Amici are deeply troubled by the Fourth Circuit’s expansion of federal forfeiture beyond its historical justifications and practice, particularly in light of the direct financial interest that inures to the government. This case offers a good vehicle for this Court to begin limiting civil forfeiture to its historical justifications."

Below is a summary from the Amicus brief - you can read the full brief here.

SUMMARY OF ARGUMENT

As this Court has consistently recognized, con- stitutional protections must be at their apex when the government stands to financially benefit from its actions. The Fourth Circuit’s decision turns this principle on its head – disregarding essential constitutional safeguards like jurisdiction and due process because the government has sought to take property using civil rather than criminal forfeiture. This Court should grant certiorari to clarify that the Constitution does not have a “civil forfeiture” exception. 

This case involves civil forfeiture of alleged proceeds from secondary copyright infringement (or the encouraging of others to infringe copyright) – a novel and untested theory of liability not expressly contemplated by the criminal copyright infringement statute. Because the Justice Department is allowed to keep and use the forfeited assets, courts must be especially vigilant to ensure that the forfeiture complied with constitutional requirements. Despite the government’s significant financial incentive in reaping the proceeds of civil forfeiture, the Fourth Circuit dangerously expanded in rem jurisdiction to property not within the control of the district court while denying overseas property owners a meaningful opportunity to contest forfeiture of their property. 

This case illustrates the degree to which civil forfeiture has come unmoored from its historical origins and how the doctrine’s devolution now threatens fundamental rights. The petition presents an important opportunity for this Court to begin limiting civil forfeiture to its historical origins, and thereby restore the constitutional protections that its modern application has placed in jeopardy. 

At the time of the Founding, civil forfeiture was justified by the necessity of obtaining “in rem” jurisdiction over property located in the United States – typically ships involved in smuggling – because the person responsible for the crime was overseas and therefore beyond the jurisdiction of United States courts. Today, civil forfeiture is often used to take property even when its owner is within the court’s jurisdiction and could be subjected to criminal prosecution. The Fourth Circuit’s ruling, however, expands a court’s power to civilly forfeit property even further, to cases where the property is not even located within the court’s jurisdiction. If the government can proceed “in rem” in a case where it does not even have control over the res, then the “in rem” doctrine has lost all meaning. 

This aggrandizement of the federal government’s forfeiture powers necessarily expands the scope of financial incentives available to law enforcement, as vividly demonstrated by this case. Here, the Fourth Circuit affirmed the forfeiture of up to $175 million worth of assets from seven, non-U.S. citizens living outside the United States through an action brought in rem against those assets – even though none of these assets are under the control of U.S. courts. 

Compounding this redefining expansion of in rem jurisdiction, the Fourth Circuit extended the so-called “fugitive disentitlement” doctrine, ruling that because these foreign property owners insist on their right to contest extradition and decline to come to the United States (leaving their families, work, and their entire lives, for months, perhaps years) without a court order, they may be deemed “fugitives” and consequently “disentitled” from even asserting a claim to their own property. If left to stand, the Fourth Circuit’s decision ratifies the ability of the United States to arbitrarily deem foreign residents “fugitives” and take their prop- erty without providing any meaningful opportunity to defend against the forfeiture of their property on either procedural or substantive grounds. Entering default forfeiture orders against international claimants – who are not fleeing justice but lawfully are staying in their home countries – both contravenes historical practice and violates due process. 

Despite the Fourth Circuit’s radical departure from historical practice, the United States has heavily relied on the decision below in seven pending cases across the country. This Court should accept review to safeguard constitutional rights that civil forfeiture has placed in jeopardy.