Civil Asset Forfeiture: What To Do When You Face It

The topic of civil asset forfeiture has received considerable media attention in recent years.  National news outlets such as the New YorkerPBS Frontline, the Washington Post, and even HBO’s Last Week Tonight with John Oliver have commented on the controversial practice, which allows the government to forfeit (i.e., permanently take) privately-owned property involved in criminal activity without charging the property owner with a crime.

This recent media coverage has focused primarily on government abuses of civil forfeiture law, and with good reason.  Civil forfeiture, when used responsibly, can be an effective law enforcement tool that strips criminals of the profits and tools of their crimes.  Unfortunately, its history and recent application are replete with examples of abuse by overzealous law enforcement agents and prosecutors.

And while this increased media scrutiny has led to adoption of civil forfeiture reform at both the state and federal levels, it has offered little in the way of practical advice to individuals or business entities affected by process.  In other words, it fails to answer the following question: “if the federal government seizes my property, what should I do?”

This article addresses that question in the context of federal civil and administrative forfeiture proceedings.  Arriving at an answer is a two-step process.  First, determine whether opposing forfeiture is in your best interests.  If it is, file a verified claim to the property with the court or seizing agency and do so in a timely fashion.

Step One: Determine Whether to Oppose Forfeiture

Law enforcement agencies seize property every day.  And every day, owners fail to contest forfeiture.  Why?

In some cases, the property is so clearly subject to forfeiture that the owner decides it’s not worth expending the time or money required to mount a challenge.  David B. Smith, Prosecution and Defense of Forfeiture Cases, § 10.06[1].  Others may be worried about potential criminal consequences of contesting forfeiture, which may include subjecting the claimant to discovery that could assist prosecutors in bringing a criminal case.  Id.  Or a potential claimant simply may not understand what he or she must do to avoid forfeiture.  Id. 

Often, these are valid concerns.  They should not, however, categorically dissuade the owner of seized property from defending against forfeiture of his or her property.  In many cases, an innocent property owner can make a claim to seized property without incriminating herself criminally.  A claim to seized property (discussed below) requires only a simple statement establishing an ownership or possessory interest in the property.  It does not require a detailed recitation of facts establishing a complete defense to criminal liability.

Moreover, federal law affords claimants a variety of defenses to forfeiture.  The most obvious defense is that the seized property is not connected to illegal activity.  The claimant may also qualify as an “innocent owner” whose interest in the property cannot be forfeited.  The government may have seized the property without probable cause, as required by federal law.

Even if the property is forfeitable, a claimant may be able to utilize statutory procedures or successfully invoke the protections afforded by the Eighth Amendment to the United States Constitution to reduce the amount forfeited.

This is by no means an exhaustive list and every case is different.  That’s why the decision of whether to contest forfeiture should be made with the benefit of advice from an experienced asset forfeiture attorney who understands the both the benefits and potential consequences of contesting forfeiture in a given situation.  That’s especially true if there’s any chance that the government will seek to develop a criminal case against the claimant.

Step Two: If Appropriate, File a Timely Claim

The legal underpinnings of civil and administrative forfeiture are somewhat peculiar.  Most notably, the seized property (rather than its owner) is the defendant.  This, of course, is a legal fiction.  The stack of cash the cops took from your car isn’t going to put on a suit and sit in the defendant’s chair at trial.

And while this may at first blush seem like nothing more than a procedural oddity, it actually makes a critical difference in the way affected property owners must approach a case.  The reason is simple—when the case begins, the property owner isn’t a party, and thus, can’t defend against forfeiture until he intervenes.

Filing a Claim in Civil Forfeiture Case

In a civil forfeiture case, a property owner intervenes by filing a verified claim.  This is usually done in response to a letter from the US Department of Justice (“DOJ”).  A verified claim is an assertion of a legal interest in the seized property.  In most cases, the claimant should keep it simple.  Explanation and elaboration are not required and may do more harm than good.

The deadline for filing a verified claim should be included in the letter the potential receives from DOJ.  The importance of filing a timely claim cannot be overstated.  Failure to do so may result in the claim being stricken and/or entry of default against the potential claimant.

Entry of default is particularly detrimental to potential civil forfeiture claimants.  To obtain relief from default, the claimant must allege specific facts that, if true, would constitute a defense to forfeiture.  This result, at least temporarily, flips the burden of proof on its head and thrusts the claimant into the often unenviable position of needing to offer specific factual details to rebut the government’s allegations of unlawful conduct or otherwise establish an affirmative defense.

Moreover, the mere act of filing a timely claim may bring the government to the negotiating table.  In many cases, it makes economic sense for the government to return a portion of the seized assets as part of settlement agreement rather than expend the time and resources necessary to prove its case in court.  This is particularly true where the claimant is able to articulate a colorable defense.  It is bolstered by the fact that the government must pay reasonable attorney’s fees incurred by a claimant who “substantially prevails” in a civil forfeiture action.

Filing a Claim in an Administrative Forfeiture Case

As with civil forfeiture actions, known potential claimants in administrative forfeiture proceedings will a receive a letter from the government.  This letter, sent by the seizing agency, may be titled “NOTICE OF SEIZURE AND INFORMATION TO CLAIMANTS” or “NOTICE OF SEIZURE AND INTENT TO FORFEIT.”  It will provide instructions on how to contest forfeiture, including several options as to how the owner would prefer that the case be handled.  These options are listed in an attachment to the letter titled “ELECTION OF PROCEEDINGS – CAFRA FORM.”

One option is to demand that the case be referred to a United States Attorney who may initiate a civil forfeiture case.  Another option is to petition the seizing agency for relief.  As with the decision to contest forfeiture, this election of remedies can have important repercussions and should not be made without the advice of an attorney.

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