Civil asset forfeiture is when a government forces a person to forfeit property that is connected with criminal activity. It may have been used in the commission of a crime, or it may have been purchased with the proceeds of criminal activity.
Criminal forfeiture laws are different in that they target property owned by a person who has been convicted of a crime. It can be part of the criminal proceedings against a person charged with a crime.
Civil asset forfeiture laws have been adopted by states and the federal government with the goal of reducing the incentives for illegal conduct. This is done by forcing a criminal offender to give up their property if it is associated with criminal activity.
Asset forfeitures remove the profit from criminal activity by eliminating the ability of a perpetrator to command the resources that are usually needed to continue participating in illegal activities. In addition, asset forfeitures can be an effective means of compensating an innocent victim.
In white-collar crimes, specifically, restoring property to an innocent victim is the first priority. In a white-collar crime, the most common thing victims have stolen from them is money.
Even if I Am Not Implicated in a Crime, Can Civil Forfeiture Be Used Against Me?
Law enforcement may use civil forfeiture against a person even if the person is not implicated in a crime. The property or assets that are seized do not have to belong to the criminals themselves. This is because this type of legal action has more to do with how the property was used in connection with criminal activity than the individual’s guilt.
If property has been used in connection with criminal activity, that property may be subject to civil forfeiture proceedings even if it is now owned by the people implicated in a crime. Some states, although not the majority of states, offer stronger protections to third-party property owners.
The majority of states require a property owner, regardless of their innocence or guilt, to prove that their property was not associated with criminal activity. The following is a common example of how this may occur in the United States.
Suppose Bob Smith wants to move across the United States, and so he withdraws all of his life savings from his bank. With his $20,000 in hand, Bob begins his drive across the country.
Bob gets pulled over by a police officer who sees the $20,000 in a case in the passenger seat. The police officer assumes that the money came from activity related to drug distribution and seizes it.
Although Bob has not been charged with any crime, he now has the burden of proving that the cash is not related to any criminal activities.
How Do These Proceedings Work?
Technically, civil asset forfeiture starts with a lawsuit filed by the government against the property itself. The technical, legal term for this is “in rem.” As strange as it may seem, the inanimate property, whether it is a yacht or a bag of cash, is the defendant in a civil forfeiture lawsuit.
It depends on the jurisdiction, but typically, law enforcement must only prove that the preponderance of the evidence shows the seized property is legally subject to forfeiture. This is because it has been used in some way in criminal wrongdoing. In some states, the standard might be proven by clear and convincing evidence, which is a more demanding standard than that of a preponderance of the evidence.
However, in some states, the standard of proof is lower. For example, in Alaska, law enforcement must establish a reasonable suspicion only that the property is related to a crime. This is a very low standard of proof. In addition, law enforcement is allowed to keep 100% of the proceeds of the forfeiture.
This standard of proof is lower than the standard that is used in criminal prosecution, which is beyond a reasonable doubt. It is conceivable that a person would not be convicted of a crime but still be unable to get their property back after they are acquitted because the standards of proof are different.
After law enforcement has justified forfeiture of the asset by a preponderance of the evidence, the burden of proof shifts to the owner. This means that it is the owner who must produce evidence in court to prove that the property was not used in criminal activity, nor was it obtained through criminal activity.
What Kind of Property Can Be Seized Under Civil Forfeiture?
Almost any type of property may be seized by law enforcement under civil forfeiture. The most common types of property that are seized include:
- Vehicles;
- Cell phones;
- Jewelry;
- Cash.
Some states, including Kentucky, have more strict requirements for seizure of real property, but generally, real property can be forfeited as well. Special protections for the forfeiture of real property are not common, however.
For Which Crimes Is Civil Forfeiture Most Often Invoked?
Civil forfeiture is most commonly used in drug cases and racketeering cases. The use of civil forfeiture, however, has expanded dramatically over the past few decades. Civil forfeitures are not being used for crimes that range from prostitution to shoplifting.
What Happens to My Property?
What happens to a person’s property is one of the most controversial aspects of civil forfeiture. In the majority of cases, the property is sold, and the law enforcement agency or the district attorney’s office is permitted to keep the profits generated from the sales.
In some states, laws have been enacted to protect property that was acquired through civil forfeiture. Therefore, the incentive for law enforcement to seize property in the first place is reduced. For example, the State of Indiana requires that 100% of the funds go to a public school fund in the state.
There are also other states that have similar laws that prohibit civil forfeiture funds from going to law enforcement, including:
- Maine;
- Maryland;
- Missouri;
- New Mexico; and
- Wisconsin.
Although most states have much higher numbers, there are a few states which have a limited version of the law. For example, in some states, only 50% of the funds recovered through civil asset forfeiture are allowed to go to law enforcement.
In other states, however, 100% can go to law enforcement. As noted above, this is the case in Alaska.
Am I Subject to Civil Forfeiture Everywhere?
The majority of states and the federal government permit civil forfeiture prior to any conviction, so it may even occur before an arrest or a criminal charge is filed.
It is important to note that states are beginning to reform their civil forfeiture laws in order to provide citizens with more protections for their property. The states that currently require a criminal conviction or a guilty plea prior to any civil forfeiture include the following:
- Missouri;
- Montana;
- Nebraska;
- Nevada;
- New Mexico;
- New York;
- North Carolina;
- Oregon; and
- Vermont.
- There are other states which have opted to keep their laws intact. They do so because the funds that are seized from property are used for public safety programs and law enforcement resources, including computers, vehicles, and dogs.
Even though this is the case, more states are expected to reform their civil forfeiture laws, as many states have pending legislation in favor of property owners.
Should I Consult a Defense Attorney if My Property Has Been Seized?
If law enforcement has seized your property, you want to consult a criminal defense attorney as soon as possible. It does not pay to wait when it comes to seeking the return of property subject to civil asset forfeiture. The laws vary by state, so it is important to consult with an attorney near you as soon as possible.
LegalMatch.com can connect you to an attorney who has experience with civil asset forfeitures. Your attorney can review your case, advise you of the civil forfeiture laws in your state, and represent you in your action to get your property back.
