CivPro: It Matters

While you may not consider Civil Procedure your favorite class, you can’t deny that it has an important place in the legal world.  The Rules govern everything you do, and as the New Zealand police are finding out, it’s crucial to get it right.


In January, the Justice Department and the FBI seized the website and charged seven people with running an international enterprise based on Internet piracy, copyright infringement, and conspiracy; the charges could result in more than 20 years in prison.  Four of the seven people were arrested in New Zealand, including the site’s founder, Kim Dotcom.


Police also seized nearly $200 million worth of Mr. Dotcom’s personal property in the raid on his New Zealand Estate.  The list includes: at least 18 luxury vehicles, artwork, and electronics such as TVs and cameras.


While this was first heralded as one of the largest crackdowns on Internet piracy, it was not without its faults. One of the biggest problems currently facing the police in their case is that they filled out the wrong paperwork to authorize the seizure of property.


The Police Commissioner applied an inapplicable statute and ended up filing for the wrong kind of restraining order.  This is especially serious because it prevented Mr. Dotcom from having a chance to appear in court beforehand to challenge the order.  About a week and a half after the raid took place, the police realized their error and refiled with the correct paperwork, though all of the items listed to be seized were already in their custody.


The Judge invalidated the original order, but has temporarily allowed the new one to stand.  The police are arguing that even though they made at least five errors in the filing of the paperwork, because the Judge has temporarily granted the new order, this should be a non-issue.  The defense however, is arguing that because the seizure order was invalid at the time of the raid, Mr. Dotcom’s belongings were unlawfully seized and restrained and need to be released.


Under New Zealand law, the courts allow a small margin of leeway in regards to filing errors.  The defense will have to show that the police acted in bad faith in order to invalidate the order.


What do you think of this result?  Should the police be allowed to have a margin of error in regards to filing errors?  Should there be a different standard then bad faith?




  1. Although I do believe that the bad faith standard is the correct one to use, this incident reiterates the importance of police officers knowing the law of search and seizure. Even if this dispute comes out on the side of the police, the whole incident could have been avoided if the police knew what the law was. While police are not attorneys, they still need to know the applicable law in search and seizure situations where they are the ones taking the first initiative unaided by attorneys. Police officers, at least in the United States, are educated on search and seizure law in the police academy. Perhaps the legal education of police should not stop there. Rather, police should be updated as the law changes and their memories refreshed on the proper procedures to use. Perhaps local prosecutors offices should take the initiative here in continuing the legal education of the police. After all, they are the ones that are going to have to sort out the mess if the police make a mistake.

  2. I’m not exactly sure what’s going on here, but I don’t like it. Good faith exceptions have been used the world over to trivialize police mistakes. “You MUST give notice. Oh, you didn’t? Well, that’s okay.” Moreover, this ‘procedural’ mix up was not just some harmless error; it temporarily left Kim Dotcom without resources to mount his legal defense.

    Lilly, was this a criminal seizure or a civil in rem seizure? I ask because, at least from an U.S. legal perspective, it seems like impermissible burden shifting to make the defendant in a criminal trial prove bad faith- as opposed to requiring that the police prove good faith.

  3. An intentional error is evaluated differently as it should be. When a person commits a wrongful act, usually with the exception of strict liability offenses, a person’s mindset at the time of the offense was committed determines the seriousness of the crime. Intent warrants the highest levels of crimes while negligence warrants a lower level. Isn’t there a difference between when you know you are wrong and when you should have known? When the police commit an error in obtaining evidence, their mindset should be relevant. If the mistake is intentional, the “good faith doctrine” does not apply. Yet, as all law students learn in criminal law, ignorance of the law is not an excuse for a defendant in a criminal trial.

  4. I think that this result is fair and the law should stay as it is. Everyone makes mistakes, including police officers, and I do not think that all evidence obtained during the search should be thrown out, considering that the error was fixed shortly after the search. I can understand the defenses frustration because Mr. Dotcom was unable to appear in court beforehand to challenge the order, but I think the standard of bad faith protects against any true wrongdoing. If this particular filing error had never occurred it still seems as though the court was very willing to sign the correct paperwork that would have ultimately allowed for the search.

    I think that because filing errors will inevitably occur a bad faith standard is the best standard. People are always going to make mistakes, especially when police officers are rushing because they are trying to get the evidence as soon as possible. I think this rule is necessary to help protect police officers so that they can act without undue delay, especially in cases where they fear that the person might move evidence or is looking to flee.

  5. The bad faith standard does seem appropriate here and I believe it can be used in similar situations here in the US in terms of warrants. It seems that the police could have done what they did anyway, even if they had filed it correctly. It is unfortunate that the attention gets shifted from the large piracy scheme to the administrative duties of police. However, it is also important that filing errors are paid attention to because although they can seem menial this error cost the person arrested, some of their rights. It is curious though that if it was such a big arrest that they didnt plan for it properly.

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