Can You Believe It’s Legal? Civil Asset Forfeiture

Overview of Civil Asset Forfeiture

Did you know that since 2000, at least $68.8 billion was the subject of civil asset forfeiture? The Institute of Justice reported it in its “Policing for Profit” third edition. Indeed, the state and federal governments profit from the arrangement. Even worse, it’s estimated that in 85% of instances, the property owner wasn’t charged with a crime.

Civil asset forfeiture (CAF) is a legal process where law enforcement agencies can seize property with alleged connections to criminal activity. Therein lies the issues that make it thorny and tricky for civilians.

The violation of the rights to due process of property owners is a foremost concern. There’s also the issue of the burden of proof shifting to the property owners. Law enforcement agencies can also keep part of the proceeds (i.e., profit incentive).

For the property owners going against state and federal governments, it’s a brick wall they’re up against. With extreme difficulty in reclaiming their property, financial hardship is common among owners.

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What Is Civil Asset Forfeiture?

First off, CAF is legal, as hard as it is to believe. Here’s what you need to know about it so you can protect yourself.

Definition and Legal Foundation

Civil asset forfeitures have these major characteristics.

• It’s a legal process.

Yes, it’s a lawful action. Both state and federal governments have CAF laws.

• It allows law enforcement agencies to seize property of private individuals and organizations.

The law enforcement agencies include the DOJ, FBI, DEA, and CBP, among others. State and local police departments are also in on the action.

The types of property for seizure include cash, vehicles, jewelry, electronics, and weapons. Real estate property, bank accounts and investments, and businesses aren’t spared either. The properties seized have alleged or suspected connections to criminal activity.

• It isn’t against the property owner.

Instead, a civil asset forfeiture is against the property itself. The property owner must prove that their property wasn’t used or involved in the alleged crime.

• It allows law enforcement agencies to keep the proceeds from seizures.

Therein lies the allegations of policing for profit.

Historical Background

The laws on civil asset forfeiture have roots in 18th-century maritime laws. Government agencies seized ships suspected of piracy and smuggling. The “guilty property” became the legal foundation of modern-day CAFs.

In the 1980s, the so-called War on Drugs further expanded the “guilty property” concept. The 1984 Comprehensive Crime Control Act increased the CAF power of government.

How Civil Asset Forfeiture Works

CAF is a complicated process, but we can simplify it.

Seizure of Property

Law enforcement agencies seize the subject assets based on criminal activity connections. Money laundering, smuggling, and drug trafficking are the common crimes cited.

• Law enforcement agencies usually identify subject assets during investigations, searches, and traffic stops.
• Law enforcement officers seize the subject property on the spot.

Legal Process for the Property Owner

The legal asset forfeiture process is biased against the property owners. Once your property’s seized, you have the burden of proof. You must prove that your property wasn’t involved in the alleged criminal activity. There’s also the burden of recovering your assets – and it’s a convoluted and costly process.

• File your legal claim for property recovery. Check the deadline. Failing to file on or before the deadline can mean permanent property loss.
• Attend the civil court hearings. Present your case, preferably with your legal counsel.

If you win, you will get your property back. But if the government wins, say goodbye to your property.

Controversies Surrounding Civil Asset Forfeiture

There are good reasons why CAFs are controversial.

Concerns About Property Rights

The foremost asset forfeiture controversy is the violation of property rights without due process. First, you’re deprived of your rightful property. Then, you must prove that your seized property wasn’t connected to criminal activity. This is in contravention of the standard that the government must prove guilt.

“Policing for Profit” Accusations

Yet another significant criticism is policing for profit, where profits rule over justice. Law enforcement agencies can auction forfeited assets. Keeping all or part of the proceeds is par for the course.

Impact on Innocent People

These people suffered from the negative effects of CAF and its abuse.

• Gerardo Serrano, whose pickup truck was seized because CBP officers found five bullets in it.
• Russell Caswell, a motel owner whose property was seized because of drug deals taking place in it.

While they eventually regained control over their property, it was a costly battle.

Arguments in Favor of Civil Asset Forfeiture

There are always two sides to the story, and this is the side of those in favor of CAFs.

Tool Against Organized Crime

Proponents argue that these are effective strategies in fighting organized crime activities. First, law enforcement agencies use CAFs to take away the criminals’ resources. Cutting off their resources means disrupting their operations and preventing future crimes.

Reinvesting in Law Enforcement

The proceeds from auctioning forfeited property are used to improve public safety. These funds are reinvested into community engagement programs, purchase of new equipment, and specialized training. With many public agencies experiencing budget deficits, the funds are welcome.

Examples of Civil Asset Forfeiture Cases

While there have been thousands of cases through the years, these cases stand out.

Notable Cases

• In 2003, Emiliano Gonzolez was stopped for speeding and with $124,700 cash in his car. The cash was linked to drug trafficking. Neither drugs were found nor charges filed. He lost the case.
• In 2013, the IRS secured a secret warrant that enabled them to empty Terry Dehko and Sandy Thomas‘ bank accounts. The IRS argued that the grocery store owners were engaged in criminal activity. The business owners sued and won the case.

Public Backlash

Many civil asset forfeiture cases have sparked public debate and outcry. These cases violated the principles of fairness and justice in American society. Being innocent until proven guilty became nothing but a discarded idea. Critics also say that vulnerable individuals, such as the elderly, are primary targets.

The media attention further highlighted the abuses made by law enforcement agencies. Calls for reforms continue to be made across the country.

Legal Reforms and the Future of Civil Asset Forfeiture

Every civil forfeiture reform achieved means a win for American society and Americans.

Proposed Reforms

• A criminal conviction must first be present before forfeiture. This is to combat the present procedure of property seizure without conviction.
• The government must shoulder the burden of proof that the property owners are guilty of criminal activity.
• There should be a complete end to financial incentives in civil asset forfeiture cases.
• Measures for increased transparency and accountability must be in place.
• Limit the type of property for seizure

States Leading the Way

These states are among the few that have started reforms in their CAF systems.

• New Mexico – All proceeds are directed into the general fund
• Nebraska and Minnesota – Criminal conviction first, property seizure afterward
• California – Conviction required for cash forfeitures under $40,000

Federal Laws and the Role of the DOJ

The DOJ’s equitable sharing scheme contributes to the continued CAF abuses. Federal reforms are designed to counteract them. Foremost is the Fifth Amendment Integrity Restoration Act (FAIR Act).

With increasing public awareness and criticism, we’re seeing more reforms in government.

How to Protect Yourself from Civil Asset Forfeiture

It can happen to you, but you don’t have to be caught unaware.

Legal Rights of Property Owners

• Know your legal rights and asset forfeiture procedures. You have the right to due process, including the right to challenge the seizure. Be willing and able to stand up to the government, even when it seems hopeless.
• Request an immediate hearing, usually within 30 days, by filing a claim.
• Hire an attorney, preferably one well-versed in civil asset forfeiture.
• Gather proof of ownership. Work with your lawyer in demonstrating your legal acquisition of property.
• Be cautious about settlements. Read the fine print.

Resources for Fighting Asset Forfeiture

Civil asset forfeiture laws are complicated, and fighting civil asset forfeiture cases is best left to the professionals. Here are the organizations that fight for reforms in civil asset forfeiture.

• Institute for Justice
• American Civil Liberties Union
• Forfeiture Endangers American Rights
• National Association of Criminal Defense Lawyers
• Pacific Legal Foundation

You’re not alone if you’re facing a civil asset forfeiture case. But you must be proactive and act fast in taking advantage of resources.

Conclusion

Challenging the government in a civil asset forfeiture case is challenging, complicated, and costly. But when you know your legal rights, hire the best lawyer for your case, and maximize your resources, it’s possible to beat the government. The key here is persistence and patience because the legal process can be lengthy.