What Is Civil Asset Forfeiture?

Tim and his friend Blake were traveling to Houston to purchase a used car. Since it was an all-cash deal, they brought $27,000 cash in a shopping bag. As they got closer to the meeting place, a police officer pulled them over for speeding. The officer, noticing a stack of twenties protruding from the bag, asked the men what business they had in his county.

Not believing their story and suggesting they were making a drug transaction, the officer pressured them into handing over the cash. The officer informed the driver that they were heading to a known illegal drug spot.

Law enforcement did not arrest or charge either man, 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.

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.

There are two types of federal forfeiture actions: criminal asset forfeiture and civil asset forfeiture. Civil asset forfeiture can be further broken down into administrative forfeiture and judicial forfeiture.

This article summarizes civil asset forfeiture at the state and federal levels. It then describes what federal and local law enforcement agencies may do with forfeited property.

What Is Civil Asset Forfeiture?

Unlike criminal asset forfeiture, a less common action in which property connected to a crime is forfeited after a conviction in a criminal case, ​civil asset forfeiture usually doesn't require either a conviction or criminal charges. Most civil asset forfeitures are related to suspected illicit drugs or organized criminal activities.

Civil asset forfeiture tries to strike a balance between seizing property the government believes is related to illegal activity and respecting the property owner's due process rights. Typically, the seizing agency needs to obtain a warrant to seize the property. In an administrative forfeiture, they do not require judicial approval to forfeit seized property.

Technically, civil asset forfeiture involves a government lawsuit against the personal property itself or, in legal terms, in rem. As strange as it may seem, the inanimate property, whether a yacht or a bag of cash, is the defendant in such a proceeding.

Civil asset forfeiture laws vary by jurisdiction. Typically, the law requires police to show that the seized property was involved in wrongdoing by a preponderance of the evidence. This is a much lower standard of proof than a criminal conviction, which requires beyond a reasonable doubt.

The lower standard of proof allows police to seize property from individuals who have not been convicted of nor charged with a crime. Even if the government tries the property owner for a crime related to the seized property, there's no guarantee they'll get their property back upon acquittal.

Law enforcement usually sells the seized property at auction. Most of the proceeds, as well as any seized cash, go straight into the police department's coffers. State laws differ in this regard, although some allow 100 percent of the seized property to be used for law enforcement. Others earmark the proceeds for education or other purposes.

Controversy Over Civil Forfeiture

As you might expect, asset forfeiture cases are controversial. It allows law enforcement officers to seize property before the government convicts a person of a crime. This section covers some of the arguments for and against civil asset forfeiture.

Proponents of civil asset forfeiture say it is a powerful tool that can effectively quell illegal activity. Giving the federal government the ability to seize and auction illegally obtained gains from crimes such as money laundering hurts criminal organizations. In general, the proceeds from the sale of the seizures go to law enforcement. This ensures they have the funding to enforce the rule of law effectively.

Critics have referred to civil asset forfeiture as policing for profit. As one source notes, federal forfeitures totaled $93.7 million in 1986. In 2014, federal forfeitures amounted to $4.5 billion.

Given that most of the proceeds from asset seizures go directly to law enforcement, critics argue that such agencies have effectively taken that money directly from citizens and put it into law enforcement's bank accounts. They also argue that police departments are incentivized to seize and auction the property, which results in a conflict of interest.

Critics further argue that, due to the preponderance of the evidence standard, police can seize items based on unsubstantiated claims. According to figures released by the Department of Justice's Inspector General, the government only criminally charges approximately 20 percent of the property owners whose property they seize.

Finally, critics note that the burden of proof is on the property owner to prove they did not use the seized assets to abet a crime. In the criminal justice system, typically, the government has the burden of proof to show a crime occurred.

For example, in a money laundering case, the government must prove the defendant engaged in money laundering. In a civil asset forfeiture, the lawsuit is against a piece of property rather than a person or entity.

Of course, an inanimate object cannot argue for itself at a hearing or trial. Therefore, the property owner must prove a negative in that they did not obtain or use the property in any criminal activity. Critics argue it is unfair for the property owner to prove a negative in such a case.

Federal Civil Asset Forfeiture Law

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 courts often grant deadline extensions.

If a claimant, often the property owner, sends a claim to the agency seizing the property, the government has 90 days to file a formal civil complaint against the seized property or obtain a criminal indictment for a criminal forfeiture. If the government fails to do one of these actions, it must release the property.

Since the action is against the property, the interested party often has no right to counsel in these proceedings. One exception is if the seized property is the owner's primary residence. Federal law provides for the appointment of counsel for indigent people in asset forfeiture cases that involve their primary residence. Some states offer this same protection.

To initiate a valid seizure of property in an administrative forfeiture, the government must typically obtain an arrest warrant in rem. Upon the government showing probable cause that the property is related to illegal activity, a court may issue such a warrant.

State Civil Asset Forfeiture Laws

State laws regarding civil asset forfeiture differ quite a bit and are subject to frequent changes. Two defining characteristics of these laws are the burden of proof required for seizure and the disposition of proceeds. Below are examples of different asset forfeiture statutes from states:

In Arkansas, police must show a preponderance of the evidence for a seizure. They may keep a certain percentage of the proceeds for their local department. The remaining portion, by statute, goes to the state.

In 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.

In Florida, law enforcement's burden of proof is beyond a reasonable doubt. All proceeds go to law enforcement, but if an agency receives over $15,000.00 in a fiscal year, they have to donate 25% of the proceeds to one of several state programs.

For information about each state's asset forfeiture rules, browse FindLaw's Asset Forfeiture Laws By State article.

Equitable Sharing

In 2017, the Department of Justice revived the Equitable Sharing Program. The program allows greater collaboration between federal agencies and state and local police. It enables federal agencies to take control of the assets seized through such collaborations.

The federal agency may then return up to 80% of those funds to the state agency. This controversial program effectively allows local agencies to get around state laws that limit the percentage of seized assets they may keep.

For example, Indiana state law historically prohibited law enforcement agencies from using any forfeiture proceeds. Under the program, however, Indiana police officers could enlist the help of a federal agency. The police could request the federal agency seize the property. If so, Indiana could recover up to 80% of the proceeds to use within their police department.

Asset Forfeiture Reform

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

The Supreme Court did not address the constitutionality of civil asset forfeiture. It did, however, determine:

• The Eighth Amendment's Excessive Fines Clause applies to the states through the Fourteenth Amendment
• That seizing the $42,000 Land Rover was an excessive fine in relation to the $10,000 maximum penalty for drug trafficking

It remains to be seen how this will play out in the bigger picture. In theory, it could prompt state and local jurisdictions to limit their seizure of assets in the future.

Concerned About Civil Asset Forfeiture? Get Professional Legal Help Today

If you believe the government unjustly took your property, you may have legal options for getting it back. Learn more about civil asset forfeiture and protect your rights by meeting with a local criminal law attorney. A criminal defense attorney can provide you with information regarding the following:

• Your constitutional protections concerning civil asset forfeitures
• Specific legal advice regarding pending criminal charges or your criminal offense
• Defense and litigation strategy regarding an upcoming criminal proceeding

If the government has seized your property, consider contacting a criminal defense attorney near you.