What Is Civil Asset Forfeiture?

Civil asset forfeiture programs account for a substantial part of state and local law enforcement agencies’ income. States partake of federal forfeiture law through the Department of Justice’s Equitable Sharing Program and subsequent state laws.

Forfeiture actions come with considerable controversy and allegations of abuse. If state or federal agents seize your property in a civil forfeiture case, you must act quickly to recover your property.

Types of Forfeiture Actions

There are two types of federal forfeiture actions. These actions exist at the state level, but city and county jurisdictions may have other types of cases.

• Criminal forfeiture is an action against the person (in personam). The case begins with a criminal indictment that includes a notice of intent to seize property.
• Civil forfeiture is an action against the property itself (in rem). A law enforcement officer can seize property if they believe it is part of or the result of criminal activity. A judicial forfeiture occurs when the owner contests the seizure, while an administrative forfeiture occurs when no one contests it, and the agency moves to take ownership.

After a civil asset seizure, federal, state, and local law enforcement agencies may use or dispose of the seized property if the owner cannot or does not prove a claim to it. Federal law restricts the disposal of the forfeited property.

Federal Asset Forfeiture

At the federal level, civil asset forfeiture is a proceeding to seize the title or ownership of money or property. Regardless of whether the court alleges that the owner of an item is a criminal, it may find that the property itself is the product of an illegal act. For purposes of the forfeiture, the property becomes the “defendant” in the legal action. Forfeiture cases often have captions like “United States vs. $500,000 in cash” or “U.S. vs. A 1993 Pontiac.”

The owner must contest the seizure in civil court. The government is operating under a lower burden of proof than in a criminal proceeding. The process is as follows:

• The government may seize property with probable cause that it is the proceeds of or used to facilitate crime
• The government must send notice of the seizure to potential owners of the property
• Owners must file a formal claim to the property within a specific deadline, usually 30 days
• If no one files a claim, the government proceeds with an administrative forfeiture
• If someone files a claim, the case goes to a civil trial
• The government must prove by a preponderance of the evidence that the property is connected to criminal activity

If the agency proves that the property was obtained illegally, it has a good chance of a successful forfeiture.

State Asset Forfeiture Laws

State forfeiture laws resemble federal laws. The Equitable Sharing Program allocates up to 80% of funds recovered through federal forfeiture to state law enforcement agencies. The program restricts what those agencies can spend the money on. State programs may not limit their own forfeitures.

Due to abuse of asset forfeiture, some states have changed their laws. Maine, Nebraska, and New Mexico have abolished all civil asset forfeiture. They allow criminal forfeiture but require a criminal conviction before property can be seized. Thirteen other states require a criminal conviction before civil forfeiture can proceed, which provides greater protection for innocent owners.

Evidence and Disposition of Assets

Civil asset forfeiture laws vary from state to state. Although all states except Maine, Nebraska, and New Mexico permit civil forfeiture, each jurisdiction requires different burdens of proof to keep the property. They also differ on the disposition of the seized assets. Examples include:

• Arkansas: Police must show a preponderance of the evidence to justify a seizure. They may keep a certain percentage of the proceeds for their local department. The remaining portion, by statute, goes to the state.
• Colorado: Police must show clear and convincing evidence for a seizure. They may keep up to 75% of the proceeds for law enforcement’s use.
• Florida: Law enforcement’s burden of proof is beyond a reasonable doubt. All proceeds go to law enforcement. If an agency receives over $15,000 in a fiscal year, it must donate 25% of the proceeds to one of several state programs.

For a full list of each state’s asset forfeiture rules, see FindLaw’s Asset Forfeiture Laws By State.

Constitutional Questions About Asset Forfeiture

The stated purpose of civil asset forfeiture is to deter crime. The U.S. Department of Justice claims that denying would-be lawbreakers access to real estate, bank accounts, and valuable personal property prevents criminal activity and deters future crime. Critics have argued that since police seize the property before filing charges against the property owners, any deterrence is minimal at best.

There are serious constitutional questions against civil asset forfeiture.

• An innocent owner: What happens when you lend your car to a friend and they use it to transport drugs? Police can seize it and sell it. In Bennis v. Michigan (1996), the U.S. Supreme Court ruled that there was no violation of the innocent owner’s due process in these cases. Courts did not have to provide the owner any compensation or offset for their loss.
• Double jeopardy: The Fifth Amendment prevents courts from trying a defendant twice for the same offense. However, the Court has held that civil forfeiture following a criminal case does not violate the Double Jeopardy Clause.
• Financial incentives and excessive fines: Since police and federal law enforcement agencies can keep the seized property, they have a financial incentive to do so. Although the law requires that the seizure be “proportionate to the offense,” this determination is often made after a judicial hearing.
• Right to counsel: In civil proceedings, claimants do not have a Sixth Amendment right to counsel as they do in criminal cases. A claimant can hire their own attorney if they can afford one, but poor or indigent claimants may not have the funds to do so.

The federal government argues that civil asset forfeiture is a powerful tool against gangs and criminal organizations like drug cartels. Police departments insist that they need the additional funds provided by forfeiture proceedings to carry out their duties. The question remains as to whether the harm done to innocent owners and minor criminals is worth the larger gain.

Asset Forfeiture Reform

In 2019, Tyson Timbs pleaded guilty to the sale of heroin and theft. At the time of his arrest, police seized his $42,000 Land Rover, claiming Timbs used it to transport the heroin. Timbs had purchased the vehicle with funds from his late father’s life insurance policy. The trial court refused to impose an administrative forfeiture, noting that the maximum fine for the criminal offense was only $10,000, less than a quarter of the vehicle’s value.

The Supreme Court agreed, holding that the Excessive Fines clause of the Eighth Amendment applied to civil asset forfeiture. If the purpose of a forfeiture is “to deter and to punish” (Austin v. U.S.), then it must be proportionate to the offense. How this will affect future civil forfeitures remains to be seen.

Changes to the Equitable Sharing Program

Many of these concerns have led to changes in the federal Equitable Sharing Program. The program was the subject of dual Executive Orders. One was issued in 2022, but was rescinded by another in 2025.

The principal financial effects of the 2022 Executive Order involved:

• Restricting the sale or transfer of military-style equipment to local law enforcement agencies
• Requiring the use of bodycams by federal agents
• Creation of the National Law Enforcement Database, which would track officer misconduct reports, terminations, resignations, and transfers

This Executive Order was partially rescinded on January 20, 2025. While these elements are no longer in effect, other aspects of the program remain active.

Get Legal Assistance With Civil Asset Forfeiture

If you lost property through civil asset forfeiture, you must act quickly to recover it. Getting immediate assistance from a criminal defense attorney or civil rights attorney who knows the process for civil asset recovery offers your best chances at success.