Civil Forfeiture - How and Why Your Assets Can Get Confiscated By The State

The term “civil forfeiture” is not one that many people recognize. Nonetheless, most are already familiar with the concept – they simply don’t realize it.

Here, we break open the legalese, discussing what civil forfeiture means, how it works, who might be subject to it, and what you can do if you find yourself unlucky enough to face it.

What is Civil Forfeiture, Exactly?

In short, civil forfeiture (also called civil asset forfeiture) is a practice whereby law enforcement officers seize property and hold it, sell it, and deposit the proceeds as directed by state or federal law. The property owner need not be charged with a crime before the police to have seizure authority.

Imagine you steal a dog from the local shelter, and you’re caught jumping the facility fence with the dog tucked under your arm (smooth). You’re arrested, booked, and locked up. As to the dog, well, no reasonable person would expect you to keep it. Law enforcement would seize it and return it to the shelter – the rightful owner. If they couldn’t determine the dog’s origin, they would be entitled to sell the dog or find another home for it, retaining any proceeds for their organization (or, in some cases, depositing them with the U.S. Treasury Department’s Forfeiture Fund). This is a common forfeiture scenario in the face of larceny.

Now imagine the same situation unfolds, but you are not arrested. Nonetheless, suspecting nefarious activity, law enforcement officers show up at your home, take possession of the dog, and return it to the shelter. This is a basic example of civil forfeiture: a government actor takes property from you without resorting to the criminal process.

An example from a real civil forfeiture case is the infamous Cheung family dispute. The Cheungs, small restaurant owners who withdrew a hefty six-figure fund from the company bank account, faced serious civil forfeiture issues when the government seized the cash under the assumption that the Cheungs embezzled it. Nonetheless, the family had never been criminally charged in connection with the cash (or any other incidents). They filed a civil suit to recoup the money, which cost them – not only financially, but also in terms of their reputation.

Situations like these can cause unwitting business owners to feel that civil asset forfeiture is patently unjust – and many legal pundits, scholars, practitioners, and laypeople vehemently agree.

Per a 2019 Washington Post article criticizing the practice, “[c]ivil asset forfeiture is based on the premise that a piece of property can be guilty of a crime.” In other words, under the theory, if police suspect that property was obtained criminally (or was connected to a crime in some way), they can seize it. Then, in some cases, the burden falls on the property owner to prove that 1) he acquired it legally, or 2) someone else was using it illegally, without his knowledge. This is a heavy burden, particularly when an asset’s chain of custody is murky.

Forfeiture supporters argue that the practice deters drug runners, cleaning up the streets and providing less opportunity for illegal drug use. However, the data indicates otherwise – specifically, a review of more than 300 seizures in Mississippi found that only six involved property worth more than $60,000, most of which involved vape shops accused of peddling synthetic drugs. And the average forfeiture amount in Washington State was a paltry $141. At best, then, it is a practice belying questionable legality that deters petty crimes while stirring up a firestorm of criticism.

In fact, the practice has been criticized as not only ineffective at deterring major crimes but also patently harmful.

Congress initially introduced civil asset forfeiture as part of the larger War on Drugs. Following the initial 1970 Comprehensive Drug Abuse Prevention and Control Act, Congress, which allowed LEOs to seize drugs and all equipment used in their manufacturing and transport, expanded the types of assets subject to forfeiture. Essentially, this rendered certain assets’ connection to nefarious criminal activity hazy at best. Worse yet, the 1984 Comprehensive Crime Control Act earmarked all forfeiture profits for LEO purposes. States then came out of the woodwork, imposing their own civil forfeiture bills that created similar funding mechanisms.

This ultimately boils down to two issues:

First, many have argued that the practice particularly impacts minorities, who tend to be charged disproportionately with petty drug crimes.

And second, the practice is largely shielded from public scrutiny which means that there is little room to criticize it. According to a 2017 article published by the Southern Poverty Law Center, “the ability to self-finance through civil forfeiture allows police departments to sidestep the usual appropriations channels, making them less accountable to the elected officials to whom they answer.” The author goes on to say: “They get to decide for themselves how forfeiture revenue is spent.”

Not only does this divvy out disproportionate power of the purse at both local and national levels, but with no uniform policing requirements for forfeiture practices and resulting data, many state standards tend to be vague. As the same article notes: “Without examining records in each case, it is often impossible to tell whether forfeiture was accompanied by a conviction, what kind of property was seized, or how proceeds were spent.”

Washington’s Civil Forfeiture Laws

Some states have passed laws restricting the policy’s application. For instance, they require that any proceeds go to a general revenue fund. Others have raised the burden of proof and protected property owners, while others have banned it altogether.

In short, it’s legal in Washington. However, the State may seize property only under certain conditions. Specifically, the state (or state actor) must prove by a “preponderance of the evidence” that the property seized was connected with criminal wrongdoing. This means that the State must show that it is more likely than not that the property was associated with a crime. If the State succeeds in showing that law enforcement had the right to seize the evidence, then the owner of the property must show that he or she had nothing to do with the criminal activity in order to regain possession of their property. This can be difficult for an owner to do and puts the burden on the owner to fight the seizure of the property. State law allows property owners to be granted reasonable attorney fees but nonetheless, the process is long and costly.

While some argue that Washington’s civil forfeiture laws are skewed largely against property owners, particularly compared to other states. In fact, Washington is considered to be one of the worst states for civil asset forfeiture due to the State’s largely unrestricted seizure authority. However, there are SOME limitations to the State’s seizure power. In short, there are three categories of property that government actors in Washington can seize:

However, Washington’s oversight of seized property only requires law enforcement agencies to file quarterly records of forfeited property to the Office of State Treasurer. The report is not required to contain detailed information about whether the property seized was the subject of a criminal investigation or even what type of property was seized. As a result, it is difficult to really ascertain whether the State’s use of civil forfeiture is abusive.

While Washington's own individual laws may seem to favor of law enforcement, the United States Supreme Court unanimously ruled in February 2019 that the constitutional ban on excessive fines applied to fines levied by state and local governments as well as the federal government. In that case, Indiana citizen Tyson Timbs pled guilty to selling heroin. The State then seized his Land Rover SUV. The vehicle had a value of $42,000, but the maximum fine Timbs faced for a conviction of selling heroin was only $10,000. Timbs argued that the State of Indiana violated his constitutional rights by seizing his vehicle, which was worth more than four times the maximum fine he could face criminally.

Fortunately for victims of asset forfeiture, SCOTUS agreed, effectively limiting states’ ability to seize private property. This is good news for Washington residents: State and local law enforcement agencies are subject to the same limitation as Indiana was in Timbs. While it is not entirely clear how much property seized is too much, the unanimous SCOTUS ruling shows that states are likely going to face heightened scrutiny when seizing property for profit.

What Are My Defenses?

If you’re facing a seizure in Washington and you believe it’s unwarranted, you’re in luck: The law provides you a plethora of defenses. Attorneys often turn to one or more of these for their clients fighting civil asset forfeiture.

Here is a sampling.

Failure to Meet the Burden of Proof

In any case, the low-hanging fruit is to show that the State failed to meet its burden of proof. In cases of civil forfeiture, if the State cannot show that it was more likely than not (recall the “preponderance of the evidence” standard) that you were involved in the alleged crime, then it can’t seize the property. Before you dive into the other defenses, first try to knock this issue out, if you can.

No Connection to Crime at Issue

The second line of defense is to cut straight to the chase: Show that there is no connection between you and the alleged criminal activity.

Recall that you must have either consented to the alleged criminal activity connected to the property or had knowledge of the alleged criminal activity. If neither of those two assertions is true, then the State can’t take the property. Period.

Procedural Breaches

A key defense is parsing the procedure to look for flaws and noncompliance. For example, in Washington, LEOs have fifteen days from the date of the seizure to notify you of a seizure. If you can prove that you were not afforded proper notice, you have a shot at recovery.

However, procedural requirements run both ways, meaning that you, too, must adhere to some rules. Most notably, you have ninety days from the date of the notice of seizure to let the LEOs know that the property is yours – and that you don’t want them to take it. If you don’t, you’re probably out of luck. The State will consider this a forfeiture on your part and absent strenuous legal proceedings, you may not see your property again.

Violation of Constitutional Rights

Finally, your attorney will comb the case to see if law enforcement officers or other state actors violated your rights at any point. For instance, if the law required officers to have a search warrant to take your property but they did so without one, you may have a leg to stand on in arguing the seizure was illegal.

But – Will I Get My Property Back?

The short answer: As in any case, it depends.

Washington law requires that the law enforcement agency return the property “upon a determination by the administrative law judge or court that the claimant is the present lawful owner or is lawfully entitled to possession thereof.” In other words, if it’s been proven that it’s yours, you get it back – AND you may even recover a portion of the attorneys’ fees you spent litigating the case.

Nonetheless, this requires diving into a formal legal process which is costly, long, stressful, and overwhelming. No to mention, for an owner whose business may have been seized or whose home may have been seized, the financial damage may already have been done. Even with the recovery of attorneys’ fees, there is (arguably) no monetary award for the lost use of the asset. For instance, imagine it takes you six months to recover your car and during that time, you rented one to commute to work. You’re unlikely to recover the rental cost, not to mention, you will face an uphill battle in attempting to recover intangible damages for the stress and inconvenience factor.

If you lose, the state has the right to retain your property for its own official use, which in most cases means selling it. In Washington, proceeds gained from the sale of forfeited property will either be deposited into the State’s general fund or will be passed to the State Treasury.

My Property Has Been Seized. Now What?

No matter where you stand ideologically, we can all agree that the civil asset forfeiture debate falls flat when the repo man shows up for your car. When you’re in this situation, call an attorney who knows the law in your state. It is vital to act quickly before the statute of limitations tolls and critical evidence fades: The sooner you act, the better your chances of seeing your property again.

It is not impossible to regain possession of your property, but it is difficult. Understanding the law is a good first step – but having an advocate on your side will make your case even stronger.

Here at Off the Record, we can put you in touch with an attorney who can help you keep traffic offenses off your record. That way, should you face a forfeiture, you can approach recovering your property through the civil process without the added stress of lingering charges. A few taps on our app or clicks on our site is all it takes to learn more.