What Is Civil Asset Forfeiture?

Tim and his friend Blake were traveling to Houston in order to purchase a used car they found online. Since it was an all-cash deal, they were carrying $27,000 in twenty-dollar bills in a shopping bag. But as they got closer to the meeting place, they were stopped by the police for speeding. The officer, noticing a stack of twenties protruding from the bag, asked the men what they were up to. Not believing their story and suggesting they were actually making a drug transaction, he pressured them into handing over the cash. The officer informed the driver that they were heading to a "known drug spot."

Neither of the men were arrested or charged with a crime, but now they're $27,000 short and not sure if they'll ever see their hard-earned money again. Can the police do this? Believe it or not, in some cases they can.

Although highly controversial, civil asset forfeiture laws allow the police to take (and keep) large sums of cash or property suspected of either being used to commit crimes or obtained through criminal means (e.g. goods purchased with "dirty" money). Civil asset forfeiture laws differ by jurisdiction, but generally don't require proof of the property owner's guilt (although some state laws do require a conviction).

What is Civil Asset Forfeiture? The Basics

Unlike criminal asset forfeiture -- a less-common action in which property used or derived from a crime is forfeited only after a conviction for that crime -- civil asset forfeiture usually doesn't require a conviction or even criminal charges. The majority of such forfeitures are related to suspected illicit drug or organized criminal activities. Technically, it involves a lawsuit by the government against the property itself -- or, in legal terms, in rem. As strange as it may seem, the inanimate property (whether it's a yacht or a bag of cash) is the defendant in such a proceeding.

It depends on the jurisdiction, but typically the police (the plaintiffs in such a proceeding) are only required to show that there is a preponderance of the evidence suggesting the seized property was involved in wrongdoing. This is a much lower standard of proof than what's required for a criminal conviction (beyond a reasonable doubt), which is why property is so often seized from individuals who are not convicted of (nor charged with) a crime. Even if the owner of the property is tried for a crime related to the seized property, there's no guarantee they'll get their property back upon acquittal.

The seized property is usually sold at auction, with a majority of the proceeds (as well as any seized cash) going straight into the police department's coffers. State laws differ in this regard, although some states allow 100 percent of the seized property to be used for law enforcement and others earmark the proceeds for education or other purposes.

Federal Civil Asset Forfeiture Law at a Glance

The Federal Bureau of Investigation (FBI), Drug Enforcement Agency (DEA), and other federal agencies use civil asset forfeiture laws when investigating crimes. The legal authority for these actions is found in Title 18, § 981 of the U.S. Code and has been upheld by the U.S. Supreme Court.

Under federal law, the government must send written notice to "interested parties" (i.e. property owners) within 60 days of the seizure, although deadline extensions are often granted by courts. If a claimant (typically the property owner) sends a claim to the agency seizing the property, the government has 90 days in which to either file a formal civil complaint ("in rem") against the seized property or obtain a criminal indictment for a criminal forfeiture. Failing either of those actions, the government is required to release the property.

Since the action is against the property, the owner (or "interested party") generally has no right to counsel in these proceedings. One exception is if the seized property is the owner's primary residence.

What is Civil Asset Forfeiture and Equitable Sharing?

In July 2017, the Department of Justice announced plans to revive the Equitable Sharing Program, allowing greater collaboration between federal agencies and state and local police. The program allows federal agencies to take control of the assets seized through such federal/local collaborations and then return 80 percent of those funds back to the state agency (typically a state or local police department). This controversial program effectively allows local agencies to get around state laws that often limit the percentage of seized assets they're allowed to keep.

For example, Indiana state law prohibits law enforcement agencies from using any forfeiture proceeds. But under this program, Indiana police could simply enlist the help of a federal agency, have them seize the property, and then recover 80 percent of the proceeds to use within their police department.

State Civil Asset Forfeiture Laws

State laws regarding civil asset forfeiture differ quite a bit from one another and also are subject to frequent changes. Two of the defining characteristics of these laws are the burden of proof required for seizure and how the proceeds are used. For instance, Texas police must show a preponderance of the evidence for a seizure and may keep up to 70 percent of the proceeds for their department.

However, a 2019 U.S. Supreme Court decision (Timbs v. Indiana) held that fines -- including assets seized after an arrest -- can't be excessive and can't be used as a way of generating revenue. The respondent in the case, Tyson Timbs, was arrested for the sale of heroin and his $42,000 Land Rover (purchased with the proceeds of his late father's life insurance policy) was seized. The Court pointed out that this far exceeded the $10,000 maximum fine for his drug offense.

While the Court didn't address the constitutionality of civil asset forfeiture in general, it ruled that the Eighth Amendment's Excessive Fines Clause is in fact applicable to the states through the Fourteenth Amendment (and that this is an example of an "excessive fine"). It remains to be seen how this will play out in the bigger picture, but it likely will prompt state and local jurisdictions to limit their seizure of assets in the future.

Concerned About Civil Asset Forfeiture? Get Professional Legal Help Today

Having something of value taken away from you by the police can be infuriating, especially if you haven't been charged with a crime. If you believe your property was unjustly taken from you, you may have some legal options for getting it back. Learn more about civil asset forfeiture and protect your rights by meeting with a local criminal law attorney.