Over the last 20 years, civil asset forfeiture at the state and federal levels has exploded into a veritable industry for law enforcement agencies across the country, including in California.

While some of these seizures may indeed be connected to genuine crimes or be justified in the fight against drugs, there is no doubt that forfeiture procedures, rules, and loopholes are regularly abused to help fund police, prosecutors, and law enforcement agencies.

Even 20 years ago, academics were pointing out the obvious: if law enforcement agencies stand to benefit from civil and criminal asset forfeiture, they will have a financial incentive to do so.

And to abuse it.

What Distinguishes Civil Asset Forfeiture Abuse From Legitimate Asset Forfeiture?

While the very question of legitimate asset forfeiture remains up for debate, it is nevertheless possible to distinguish some more egregious and problematic uses of asset forfeiture. These could be considered, legally and ethically, to be abuse of the civil asset forfeiture system.

Why Are Cases Of Asset Forfeiture Abuse More Common In Civil Rather Than Criminal Forfeiture?

While both types of asset forfeiture, or the seizure of property by law enforcement agencies, are vulnerable to abuse, it is important to distinguish between them.

In criminal asset forfeiture, law enforcement can only seize property after a criminal conviction and only if there is proof that the car, cash, home, or other property has been gained directly through illegal means or with the profits of illegal actions.

Civil asset forfeiture, on the other hand, allows law enforcement, especially federal law enforcement agencies, to seize property merely suspected of being gained through illegal means. These cases are filed directly against the object or other property, not the person, and require no criminal convictions or even any criminal charge to be filed to take effect.

This means it is far easier to abuse the civil asset forfeiture system, which is reflected in far, far higher numbers of civil over criminal asset seizures and corresponding profits by law enforcement.

CASE: A marine vet and father of two nearly lost his entire life savings on his way to California due to civil asset forfeiture despite no criminal charge being filed against him.

How Do Law Enforcement Get Away With Civil Asset Forfeiture Abuse In California?

Academics and activists alike have been working to fight against the unjust abuse of civil asset forfeiture rules in California and throughout the United States. However, civil asset forfeiture abuse remains an endemic problem throughout law enforcement behavior, and there are many tools, techniques, and strategies they use to continue getting away with it.

Favoring Federal Forfeiture Facilitates Abuse

California has been one of many states that has pushed to impose some restrictions and requirements on civil asset forfeiture to curb its excessive use and abuse by law enforcement.

Unfortunately, there is a gaping loophole police and prosecutors have been able to take advantage of to get around these regulations: federal asset forfeiture.

The federal laws for asset forfeiture have consistently been far easier to abuse, and, by law, federal law enforcement agencies will share the lion's share of the “profits” from these seizures with local law enforcement agencies and prosecutors. This is called “equitable sharing,” but there is nothing equitable about the abuse imposed on California residents and visitors.

This equitable sharing doctrine led to a situation where, out of the  $1.7 Billion dollars generated by asset forfeiture in California over the last two decades, nearly 75% of that revenue has been from “federal” cases.

While the state has passed some laws to try and close this gap, they do not seem to have made much of a dent in the problem yet, perhaps because it is far from the only source of abuse in the system.

CASE: In 2021, the FBI raided an allegedly criminal business in Beverly Hills that stored property and valuables, including those of perfectly innocent civilians, who saw their cash savings disappear into federal civil asset forfeiture.

Civil Asset Forfeitures Predominantly Target The Most Vulnerable

In California, law enforcement activity, and civil asset forfeiture in particular, predominantly targets lower-income individuals, immigrants, and racial minorities. This is not a coincidence.

These are often individuals and families who lack the means to defend themselves, who are worried about deportation if they do not cooperate, or whom a jury, judge, or prosecutor is likely to be prejudiced against if the case is challenged.

All too often, however, such discriminatory civil asset forfeitures are not challenged because those targeted lack the knowledge or funds to secure a legal challenge. Forced to choose between paying thousands to get a lawyer to force the police to return a car worth barely more, a brutal economic calculus makes giving up those assets more viable, making them easy victims of such abuse.

Fortunately, some California civil asset forfeiture attorneys, like Jacek Lentz, will agree to work on contingency, meaning they will not charge the victim if they cannot get their property back. Unfortunately, all the good lawyers in the world cannot undo a fundamentally structural problem of perverse incentives.

CASE: The ACLU of Northern California has put together an entire report that outlines these abuses, including the story of a retired couple forced to go into debt to pay for legal fees needed to retain a home seized because their son had, without their knowledge, sold some drugs in.

Most cases never even get attention, however, as they go unopposed and unreported by the victims, which is something prosecutors understand all too well.

Prosecutorial Oversight Makes Civil Asset Forfeiture Abuse Too Easy

While the rules are different in each state, the key voice in many civil asset forfeiture cases is that of the prosecutor who requests the initial warrant, federal intervention, or signs off on the seizure. Worse still, these prosecutors often have a direct financial incentive to encourage the abuse of the system.

In California, ten percent of the share of civil asset forfeiture proceeds that go to law enforcement go to prosecutors. This is all the more alarming when you consider that prosecutors also often have power over appeals and attempts to regain this property.

CASE: An Arizona couple saw their car seized while it was being driven by their son, and their initial request to get it returned was thrown out by a prosecutor on an exceedingly minor technicality, an action which was fortunately later ruled unjust and illegal.