Civil Forfeiture

       “Civil Asset Forfeiture” is the process by which the United States government, or a state government, takes property from an individual when the government claims that the property was either used in a crime or was purchased with the proceeds of a crime.  Property or belongings that were allegedly part of a criminal act, or the proceeds of a crime, can be seized by the government.

       Civil asset forfeiture can occur in connection to a criminal case and is frequently related to, though a different case than, a white collar crime prosecution.  Civil asset forfeiture can happen to people that have committed underlying offenses or that are completely innocent.  However, which situation the person fighting the forfeiture is in can have a large affect on the case.

       Recently, property has been seized by law enforcement agencies in more and more types of cases.   While there are defenses to having one’s assets seized, typically the burden is on the person having property taken to raises these issues.  Aside from the burden of raising these issues, the burden of proof of proving that certain property should not be taken is typically on the person that is having their property taken.

Proportionality Defense

       The “Proportionality Defense” under the 8th Amendment to the U.S. Constitution is a defense.  Courts consider the seriousness of the offense against whatever property is being taken and the value of the property and consider whether or not a particular forfeiture is “grossly disproportionate” under the the excessive fines clause of the 8th amendment.  The most important case with regard to the “Proportionality Defense” is U.S. v. Bajakajian.   In Bajakajian the U.S. Supreme Court explained that it was necessary to look at the maximum fine under the statutory sentencing guidelines and not the maximum fine for the particular offense.  Proportionality is question of law for the judge and the claimant does not have the right to a jury trial or determination of this issue.  Also, the burden of proof in such a situation is “beyond a preponderance of the evidence” and the burden is on the citizen.

Fourth Amendment

       In civil forfeiture hearings the person that is having property taken can objections to the “Search and Seizure” under the 4th Amendment in much the same manner as a criminal case.  These protections were given to citizens in civil forfeiture cases in One 1958 Plymouth Sedan v. Pennsylvania by the United State Supreme court.  Just because property was seized illegally does not necessarily mean that the government will be unable to forfeit it.

       The federal Government can still use legally obtained evidence to prove its case for forfeiture of illegally seized property.  What a 4th amendment challenge allows in a case like this is prevent the illegally obtained evidence from being used.  As usual, the burden is on the citizen having property seized to prove the property is clean and should not be seized.

Innocent Owner Defense

       Another defense available in asset forfeiture cases is the “Innocent Owner” defense.  The innocent owner defense is what is called an “affirmative defense”.  An “affirmative defense” is one that must be raised in the actual answer to the government’s lawsuit.  The claimant has the burden of proof to show that they are an innocent owner by a preponderance of the evidence.

       If the seizure of the property were considered “punishment” for a crime then the person having property taken would have protections under the United States Constitution.  Sadly for property owners having property taken, the courts do not consider the taking of property to be a punishment.  Therefore, the burden of demonstrating that the property was not used in a crime rests with the person having property seized.

Time Limits to Seize Property

       In civil forfeiture cases, there are “Statutes of Limitation” that require the government to begin forfeiture proceedings in a timely manner.  In 2000, the “Civil Forfeiture Reform Act” reduced the statute of limitations in federal cases to 5 years after the offense or 2 years after the discovery of the property’s involvement in the offense, whichever occurs later.  Also, cases can be thrown out for “undue delay”.

       The Supreme Court in U.S. v $8850 stated that the factors in Barker v. Wingo should apply to civil forfeiture proceedings.  This case originally applied only to criminal trials and now applies to civil forfeiture proceedings.  The four factors are:

  1. length of delay,
  2. reason for delay,
  3. degree of prejudice to the person whose property is being taken and
  4. nature of trial counsel’s assertion of the speedy trial right.

Defenses Must Be Raised in a Timely Manner

       As civil forfeiture becomes more and more common it likely that more and more citizens are going to encounter these types of issues.  There are defenses available to a citizen with property that is subject to forfeiture.  Unfortunately, the citizen and their attorney needs to be aware of these defenses.  If the defenses are not raised in time, the defenses can be lost forever.

Informative video from the “Institute for Justice”