Civil forfeiture is a practice where a government agency can seize cash or property and sell it without you, the owner, having been accused of a crime, charged, or convicted. Technically, these forfeitures are lawsuits against your property or in rem. Unfortunately, most are not followed by criminal charges or convictions against the property owners. Therefore, you should protect your property rights and ensure they do not take away your assets wrongfully.  At Asset Forfeiture Attorney, we will guide you and defend you in the forfeiture case to ensure the government returns your property in California or any other part of the country.

Civil Forfeiture Definition

Unlike criminal forfeiture, where you must be charged or convicted of a crime related to your property for the government to take and sell it, civil forfeiture does not necessitate a criminal charge or guilty verdict for you to lose your property to a government agency.

Forfeiture happens in civil cases when the police sue your assets or property, not you, the owner. For a favorable outcome that allows them to auction the property, the agency must prove that it is more likely than not the asset sued was obtained through revenue from fraud or facilitated breaking of the law. The standard of proof has a lower threshold than in criminal court cases, enabling law enforcement to take away your property. Despite forfeiture agents seizing your assets in criminal forfeiture, they can only auction them after a guilty verdict in court. 

Civil forfeitures try to balance taking the assets the government believes were obtained illegally and respecting your right to property ownership. The Bill of Rights states that you should not be denied the right to your property without following the due legal process. Unfortunately, with civil forfeitures, the government seizes properties like cash, cars, and real property at will. Even if you have not been charged with a crime, you will have fewer rights to defend it than someone who faces criminal charges.

What is even worse is that once the property is sold, the government agencies are allowed to retain the full or a portion of the sale. The agency allocates the income from the sale to its budget, encouraging them to seize more properties through civil forfeitures to increase their revenues. This encourages many government agencies to seize and sell property wrongfully, which is why you should defend the property with the help of a profound asset forfeiture lawyer.

Civil Forfeiture History

Civil forfeiture traces its origin to a legal "fiction" stemming from "deodand," or a medieval superstition. The legal fable supposes that items or inanimates could act independently to cause loss of life. This type of forfeiture attempts to try nonliving objects involved in criminal violations. The hearing is "in rem," meaning it is filed against objects. It is a legal tale because it is evident that non-living objects cannot violate the law.

Civil forfeiture was previously enforced to enable custom duty collection, a significant revenue earner for the national government. Because the government could not prosecute the owners of ships smuggling goods to the country because they were abandoned overseas, it was forced to seize the ships and their cargo.

The government barely utilized civil forfeiture before the Civil War. However, in the 1980s, after the war, it gained prominence because of the government's fight against drugs. Further, the US Congress created an asset forfeiture fund that allowed federal government agencies to seize and sell properties, and the relevant agency utilized the revenue generated from the sale. Before the fund's establishment, all revenues from civil forfeitures were deposited with the government's general fund. Allowing agencies to spend the revenue at source incentivized them to seize and sell more property to increase revenue margins.

After the changes, states, including California, followed the federal government's lead, allowing government agencies to spend part or all of the sales revenues.

Process of Seizing Assets

When seizing your assets or property, relevant authorities send forfeiture agents to seize physical control of the inanimates linked with crime. These agents usually:

  • Seize your personal belongings like vehicles, cars, or drugs
  • Instruct banks to freeze your accounts, making it impossible for you to access your money
  • File forfeiture notices on your real properties, blocking you from mortgaging, selling, or transferring them

After the seizure, you stop benefiting or managing the property. The only way to restore the benefits or enjoyment of the assets or property is if the court disapproves of the forfeiture and orders the forfeiting agency to return the property and clear the legal deed.

Properties that Risk Civil Forfeiture

The law lets prosecutors and law enforcement seize most properties, including:

  • A gun that is associated with a crime like assault utilizing a lethal weapon
  • Telecommunication, computer, or laptop used to perpetrate a cybercrime like internet fraud
  • Animals where you face an allegation of animal cruelty
  • Vehicles linked with theft used to transport contraband or commit other crimes
  • Boats
  • Narcotics
  • Buildings associated with drug manufacturing

When joint ownership is involved, the authorities cannot take your property, even if it is linked to criminal activity, unless the other owner is aware of the ongoing illegal activities.

Generally, forfeiture items include:

  • Contraband
  • Exchanges, including cash or property that is traded for illegal items or drugs
  • Cash, real property, or other valuables obtained through revenue from criminal activities
  • Facilitators, which are items utilized to further crime

Civil Forfeiture Controversy

Civil forfeitures are controversial because they allow police to take your property before the prosecutor charges you with a crime or the court convicts you of the same. The proponents of the forfeiture system saw it as an excellent tool to fight crime. It allowed the government to take and auction assets obtained through crime like money laundering. Criminal organizations incur huge losses when the government takes property linked to crime, even if the perpetrators do not face trial. The revenue from the auction of seized property funds law enforcement activities, improving service delivery. 

However, those who criticize civil forfeiture view it as policing to make profits. In 1986, the federal government was alleged to have generated a revenue of $93.7 from forfeitures, while in 2004, it made $4.5 billion. 

Most of the income generated from these sales benefits law enforcement directly. As a result, many police officers take property or cash from law-abiding citizens and deposit them into their bank accounts. These actions have incentivized forfeiture, leading to a conflict of interest.

Civil forfeiture also lowers the government's evidentiary standard as it requires law enforcement to prove that it is more likely than not that your asset or property was utilized to commit a crime. In criminal forfeiture, the government should first prove to the court beyond reasonable doubt that you committed a crime for a forfeiture to happen. Civil forfeiture has low evidentiary standards, enabling governments to take and auction property in unsubstantiated claims.

Data released by the Inspector General Justice Department shows that out of all the owners whose property is seized by the government, only 20% face criminal charges, indicating that most of the allegations leading to property seizure and sale are unsubstantiated.

Critics also claim civil forfeiture is dangerous because the burden of proof is with you, the property owner. To retain it, you should demonstrate that the property is not associated with crime. Unfortunately, if you are innocent and do not know of the links between your property and crime, you will have a difficult time proving your case because law enforcement presumes you are guilty, shifting the burden of proof to you instead of them proving that the property is associated with crime as they are the ones that made the accusations. The government should confirm that you are guilty, like in criminal cases, and not you demonstrating your innocence.

For instance, when charged with a drug crime, the government is responsible for proving all the facts of the case for a conviction. Nevertheless, in civil forfeiture, the lawsuit is against the property associated with the drug offense, and to save the property, you, the owner, are the party to dissociate it from the crime for the government to return it. You represent the inanimate because it cannot argue for itself in trial. You have to demonstrate a negative in the case, which makes the proceeding unfair.

The fact that the government does not provide you with a legal representative in a civil forfeiture when you cannot afford one as they do in criminal proceedings makes these laws controversial. In a criminal court, you will have a court-appointed attorney when there is evidence you cannot afford one.

Sadly, in a forfeiture where the government has taken your property without formal allegations, you should hire legal representation or otherwise represent yourself. Because you have little or no knowledge of civil forfeiture proceedings, you risk losing the property, which is what the government wants to increase its profits. What is even worse is that when you partner with a forfeiture attorney, you could spend more on legal fees than the value of the inanimate you seek to recover.

At Asset Forfeiture Attorney, we discourage you from representing yourself in these civil trials even when you cannot afford an attorney. Speak to us to develop a flexible and affordable repayment plan to keep the cost of legal representation low and minimize the chances of losing your hard-earned cash, asset, or property to the government due to wrongful accusations.

In the past, California forfeiture agents have avoided the state forfeiture regulations by transferring possession of seized inanimates to the federal government, whose rules are more relaxed. The federal forfeiture agents could then sell the property and, through equitable sharing, retain 80% of the proceeds and then transfer the remaining 80% to the local agencies.

The equitable sharing program was established in 2017. It allows local and federal government agencies to collaborate and enables the feds to manage property seized by local authorities. Many state agencies can avoid California forfeiture rules by turning over seized property to the federal agency.

The legal system's loophole allowed the transfer of unlawfully seized items to the federal government for auction, so many people wrongfully lost their properties to civil forfeiture. The behavior was further encouraged by the fact that after obtaining their share from the federal agency, the state agency was not required to deposit the funds into California's general fund. Instead, they retained the funds, encouraging them to unlawfully seize more property and turn it over to the national government.

Fortunately, the passage of Senate Bill (SB) 443 in 2016 sealed the loophole by restricting equitable sharing, preventing local law enforcement from circumventing the state's forfeiture regulations. Also, the new regulation increases the burden of proof for the seizing government agency in particular cases, making it mandatory for you to be found guilty before the auctioning of your property.

However, even though it is harder for local government agencies to seize your property, the feds can still do it at will if they have probable cause to believe that the property is associated with criminal activity. The agencies can seize your property with very little evidence of crime. However, even though federal laws are relaxed, your assets can only be taken away if the DEA or FBI obtain a warrant through an administrative forfeiture. The warrant from the court acts as probable cause the asset is associated with a crime.

The authority law enforcement has to take and retain property through civil forfeiture is objectionable. It has also led to agencies generating funds from sources not mentioned in their budgets. States can change these laws by requiring agencies that engage in civil forfeiture to report revenues from these sales and how the funds were spent. 

Find a Civil Forfeiture Defense Attorney Near Me

If you are convinced the government unlawfully seized your property, you have legal avenues to explore to take it back. Speak to the Asset Forfeiture Attorney at 888-571-5590 to understand your rights in civil forfeitures and develop defenses for the upcoming case. Our attorneys have experience fighting these forfeitures, and this is your best chance to recover your property in California or anywhere in the US.