Overview of Civil Forfeiture Proceedings

Most forms of punishment by the federal government are levied and enforced after arrest or conviction of a federal crime. For example, you can’t be held by the police unless there is a warrant issued for your arrest and that warrant is carried out.

The restrictions on federal law enforcement conducting a search, seizure, or arrest are essential to upholding your rights to due process.

Through civil forfeiture, also called civil asset forfeiture, federal law enforcement can seize the assets of an individual suspected of a federal offense without making an arrest. More importantly, once a civil forfeiture is executed, the burden shifts to the defendant to prove the assets should be returned.

The defendant’s burden after a civil forfeiture is an essential aspect of this federal process because it is counterintuitive to other types of seizure.

For example, when a federal agency seizures property pursuant to a different warrant, the government must prove the property seized was used in a crime or criminal activity to retain possession of those assets. The process isn’t the same in a civil forfeiture.

What Is the Legal Basis for Civil Forfeiture?

Civil asset forfeiture is commonly associated with criminal procedures and federal crimes, but the basis for asset forfeiture is aptly based in federal civil law. In actuality, civil asset forfeiture is an entirely separate case than a criminal prosecution.

The legal basis for civil forfeiture is also separate from criminal law.

There are three justifications put forth by the federal government to back the implementation of civil forfeiture proceedings:

  • Civil asset forfeiture is a deterrent to future criminal activity. If an organization or individual knows money and other property used in a crime are at risk, they may decide the price isn’t worth the penalty.
  • Civil forfeiture promotes cooperation by multiple federal agencies and levels of government. There is a direct incentive to work together to detect and investigate crimes.
  • Civil forfeitures can serve as a revenue stream for federal law enforcement.

Explanation of “In Rem” for Federal Cases

Most disputes or cases under federal law are between people. When it is a civil case, the dispute takes place between two private entities, whether that is a corporation and individual, two individuals, etc.

Meanwhile, a criminal action is a dispute between the government, acting through law enforcement, and an individual. All of these cases fall under the legal term “in personam,” which means against the person.

Civil forfeiture is different. The central dispute for civil forfeiture or civil asset forfeiture is between law enforcement and property. The legal term for these cases is “in rem,” meaning against the property.

These separate legal theories are central to civil forfeiture proceedings. When law enforcement files a motion to seize property, the defendant is the property, not a person.

This makes the owner of the property a third-party to the case and not directly named in the lawsuit. The appropriate steps after a civil forfeiture is filed in court are best handled by a federal defense lawyer.

History of Civil Forfeiture in the United States

The basis for civil forfeiture in the United States dates back to British Maritime Law, and the earliest instances of civil asset forfeiture were in cases where it was otherwise impossible to seize the goods aboard shipping and illegal vessels.

Civil forfeiture today truly developed during the 1980’s war on drugs in the United States.

From 1980 onward there has been a substantial increase in the number of civil forfeiture cases, mostly involving the trafficking, manufacture, and production of illegal substances.

Civil forfeiture in these cases was not only used by federal agents to seize the ingredients and tools used to produce illegal substances but the cash and other assets financing the illegal drug trade. Then and now, the use of civil forfeiture is a divisive issue in the United States.

Civil Forfeiture Before the Supreme Court

Today, there is a substantial divide on how individuals and states approach civil forfeiture. These differing opinions are slowly pushed up to the federal government, where the argument is put forward that civil asset forfeiture is a violation of the Eighth Amendment.

Three states have already made civil forfeiture unlawful, and many others have considered it the legality of these civil seizures. In 15 other states, it is necessary to have a criminal conviction to seize assets. That leaves 32 states that still adhere to the full scope of federal law when it comes to civil forfeiture proceedings and due process.

Currently, the United States Supreme Court is preparing to hear a case that could prohibit civil asset forfeiture at the federal level. The case originated in Indiana, where a man had his $42,000 Land Rover seized as part of an illegal drug case.

While civil forfeiture is allowed and regularly exercised in Indiana, this case was unique because the value of the defendant’s car far exceeded the criminal liability of his offense.

On this basis, he claimed the civil forfeiture of his vehicle violated the Eighth Amendment of the United States.

The Eighth Amendment protects individuals in the United States from excessive fines and other abuses by the federal government.

If the Supreme Court agrees with the defendant’s argument in the upcoming case, it could make all, most, or some civil forfeitures in the United States unlawful.

The Federal Statute on Civil Forfeitures

The rules, requirements, and procedure for civil forfeitures by federal law enforcement are found in Section 983 of the U.S. Code. This provision of the federal statutes is robust and lengthy, making it complicated for someone unfamiliar with civil forfeitures and legal statutes to fully understand the process and individual rights required by federal law.

Notice of Forfeiture

The first requirement of Section 983 is notice of civil asset forfeiture. According to the federal statute, this notice must be provided to the interested parties; often interested parties are defined as the owner(s) of the seized property. The notice must be in writing and must be provided to the interested parties within 60 days.

Response by Interested Parties

Every interested party has an opportunity to respond to a notice of civil forfeiture. This is likewise done as a formal process in federal court. Once an interested party files a claim for the seized property, the government must take additional actions to continue holding the property.

Within 90 days the government must:

  • File a formal complaint in a federal court against the property, as discussed these complaints are filed “in rem” or against the assets, specifically; or
  • Impanel a grand jury and receive an indictment for the crime that involved the seized property.

If the federal government doesn’t take either of these actions within 90 days, then the seized property is released to the owner. While the return of seized property may end the civil forfeiture action, it doesn’t necessarily end a criminal investigation.

When Can Law Enforcement Seize Assets?

Civil forfeiture can occur before an arrest, or formal charges are made for the crime because it is a separate legal procedure from a criminal case. Despite the distinction, civil forfeiture by a federal agency gives law enforcement a powerful tool against possible defendants.

The lack of criminal due process before a civil forfeiture is a significant reason for the disagreement with civil forfeitures in the United States.

As well, it is easy for innocent parties to become swept up in these complex legal proceedings. Federal law enforcement can’t seize property, funds, or other assets in every case.

The availability of civil forfeiture is limited to instances when law enforcement believes the assets in question were used in a crime. The illegal use of the assets is what creates a case between those assets, for example, cash from selling drugs, and the federal government.

The standard needed for the government to seize assets through civil forfeiture is extremely low. Even for those criminal defendants that can see a courtroom for civil forfeiture have a fierce battle to force the return of cash, property, or other assets.

What Property Can Be Seized Through Civil Forfeiture?

Federal law doesn’t impose any restriction on the type or quality of property that can be seized through a civil procedure. While the most common asset taken through civil forfeiture is cash, it is hardly the only type of asset appropriated by federal law enforcement in these cases.

The only restriction according to the written statutes is that the assets must be suspected of use in criminal activity.

Some of the most common categories of property and other assets taken through civil forfeitures include:

  • Real property, such as warehouses, industrial spaces, and even residential homes
  • Firearms and other weapons
  • Motor vehicles, including transport trucks and personal cars and trucks
  • Know-how, information, and plans found in books, records, manuals, and computer software for committing a particular crime, such as directions for production an illegal substance
  • Paraphernalia and tools for the use of drugs, production of drugs, and similar purposes; and
  • Computers, cell phones, tablets, servers, and other electronic devices.

Seizing Assets for Financial Gain

Within the current system and procedure for civil forfeiture, there is a massive incentive for the federal government to seize assets merely for financial gain.

The system certainly increases the number of civil forfeiture cases each year but also augments the anger of innocent people involved in civil forfeiture cases and people who disagree with civil forfeiture for policy reasons.

What is this financial incentive? Most of the funds received from the sale of property or funds obtained in a civil forfeiture are returned to law enforcement.

This occurs on both a federal and state level, which means the more civil forfeitures successfully executed by the federal government, the more funds available to federal agencies.

Under federal law, 100% of funds from civil asset forfeitures are returned to federal law enforcement agencies.

Common Federal Crimes that Result in Civil Forfeiture

There aren’t restrictions on the type or severity of the crime that leads to civil forfeiture. Federal identity theft, mail fraud, cyber crimes, terrorism, and federal drug crimes are all offenses that may lead a federal agency to seize an individual’s assets. Similarly, white-collar crime might be the underlying criminal offense that results in civil forfeiture.

That being said, civil forfeiture is undoubtedly more common in certain federal offenses than others. Some of the federal offenses most likely to result in civil asset forfeiture are:

  • Drug offenses, including drug trafficking and schemes involving the production of illegal substances
  • Terrorism and similarly serious crimes that involve interstate activity
  • Federal firearm offenses and the trafficking of illegal weapons, most frequently the movement and storage of illegal firearms
  • Counterfeiting, including the counterfeiting of United States currency, foreign currency, and identification documents; and
  • Violations of U.S. copyright and trademark law.

How Do Civil Forfeiture Proceedings Unfold?

Civil forfeitures are initiated by federal agents in several different government agencies. Some of the most common federal agencies to initiate a civil forfeiture lawsuit are:

  • Federal Bureau of Investigations (FBI)
  • Drug Enforcement Agency (DEA)
  • Department of Homeland Security (DHS)
  • S. Justice Department and Office of the Attorney General
  • Customs and Border Protection (CBP); and
  • Immigration and Customs Enforcement (ICE).

Typically, the FBI, or another agency, learns of the connection between criminal activity and specific property through an ongoing investigation.

For example, the FBI is already looking into the production of methamphetamine by a group of people. As part of this investigation, the FBI comes to suspect that the finished meth is being transported to buyers in a particular truck. That truck can become the subject of a civil forfeiture case.

The Government’s Case in Civil Forfeiture

Civil forfeiture is a formal legal process, which means the government must file a civil case in federal court. This case is between the federal government, who is the plaintiff, and the property, which is identified as the defendant.

Pursuant to this civil case, the government is essentially arguing that the property belonged to the government at the time of the crime, solely based on its use in criminal activity.

Despite this unique arrangement, it is the owner of the property that can enter the lawsuit to establish ownership over the property. A criminal defendant is then forced to argue that the property wasn’t utilized for a crime, which makes the defendant still the rightful owner.

Standard of Proof Required of the Federal Government

Once the property is seized through civil forfeiture, the federal government has an extremely low bar to keep the property. The legal standard imposed is called “balance of probabilities.”

In civil forfeiture cases, the balance of probabilities is met when the federal agency can show there is reasonable suspicion that the cash, real property, vehicle, or other assets seized were used in a crime.

Why is the burden of proof so much lower in a civil asset forfeiture case? It isn’t a criminal case. Therefore, the federal government isn’t required to show evidence beyond a reasonable doubt.

The original property owner, typically a criminal defendant, has an equal burden to bring evidence that the assets weren’t used in connection with a crime.

Documentation, contracts, and other evidence can be used as evidence against the government’s claim.

In general, it is far more difficult for a defendant to build a case. Most criminal defendants turn to an experienced criminal defense lawyer to assist with their civil forfeiture case.

Your Response to a Civil Forfeiture

After the property is seized by law enforcement and written notice is provided, the government has no further burden to assist the owner or return the property unless a claim is filed.

Most civil forfeitures end without any pushback or response from the owner.

You don’t need to accept this administrative conclusion.

Fighting a Civil Asset Forfeiture

If your property is part of civil forfeiture, then you should file a claim for its return. When the property owner files a claim, the federal government is forced to take one of two actions within 90 days of your filing.

  • The federal government must provide a response in the civil forfeiture case by formally filing a complaint in federal court; or
  • The federal government must bring charges for a federal crime.

Law enforcement may not have the evidence to initiate either of these actions in the timeframe.

If the 90-day window runs on the federal government, then your assets must be returned.

This is the most frequent way for defendants to win a civil forfeiture case. However, it is possible that a defendant will need to further pursue a civil forfeiture action in federal court. A process that is best undertaken with legal representation.

Hiring a Federal Defense Lawyer for Civil Asset Forfeiture

Many federal lawyers help with civil forfeiture proceedings. Individuals often turn to their federal defense lawyer for assistance with a civil forfeiture case because knowledge of the underlying crime and criminal procedure is valuable. Here are some qualities advantageous in any civil forfeiture case:

  • Prior experience with civil asset forfeiture cases;
  • An established federal practice in the district court where your case is being heard;
  • Knowledge and awareness of the underlying crime leading to the seizure of your money, property, vehicle, electronic device, bank account, or other assets;
  • In-depth knowledge of the Eighth Amendment and challenges to civil asset forfeiture under the U.S. Constitution; and
  • Availability to fully and robustly represent your case in federal court.

Find a top lawyer for your civil forfeiture claim.