Brittany is a licensed attorney who specializes in criminal law, legal writing, and appellate practice and procedure.
Did you know that the state and federal government can take your stuff without charging you with a crime? Through a legal process called civil forfeiture, the government can seize your personal property if they suspect that the property has been involved in a crime or if the private property represents proceeds of a crime. This means that police officers or law enforcement agents from other government agencies (like the FBI or the DEA) can take your money, your personal possessions, and even your house without ever charging you with a crime. Proponents of the practice of civil forfeiture argue that taking the 'tools of the trade' out of the criminals' hands enhances public safety by disrupting dangerous criminal operations, like drug trafficking rings.
For example, the police suspect that Tony Trafficker uses his speedboat in a drug trafficking operation. They also know that Tony keeps a large amount of cash on hand so that he can pay his suppliers. The police know that if they simply arrest Tony, Tony's confederates will continue to operate the drug trafficking business without him. Thanks to civil forfeiture laws, the officers can seize Tony's speedboat and cash with the hopes that the drug ring can no longer operate without those key assets.
The practice is very controversial, and the laws tend to work against the property owner. Let's discuss the history of civil forfeiture laws and how the practice works today.
The practice of civil forfeiture actually started a very long time ago. In the mid-1600s, a set of laws known as the British Navigation Acts permitted the seizure of any ship that refused to sail under the British flag. Later, during the colonial period, Congress based certain laws on the Navigation Acts to help in tax collection. While these early colonial practices helped the government generate revenue, they also angered the colonists.
Civil forfeiture laws were used in the 1920s during the Prohibition era when alcohol sales and production were illegal in the United States. Anyone found buying or selling alcohol would be subject to the seizure of the product and their cash.
The practice of civil forfeiture made a booming comeback in the 1980s. It was during this decade that the illegal drug trade become a big problem for law enforcement agencies, and lawmakers were eager to find a solution. The Comprehensive Crime Control Act of 1984 overhauled the federal criminal code, allowing federal and state agencies to share the proceeds of seized assets. This means that when the local police department seizes Tony's speedboat, the federal government assumes ownership of the boat and, in turn, shares the value of it with the local police. This process is administered through the Department of Justice's Equitable Sharing Program.
The legal procedure behind civil forfeiture is different from the typical criminal case. Criminal cases are prosecuted in personam, which means 'against a person' in Latin. That's why criminal cases are styled: 'The People v. Tony Trafficker' or 'The United States v. Tony Trafficker.' On the other hand, civil forfeiture requires what is called an in rem action. In rem means 'against property,' so a civil forfeiture action will look like this: 'The United States v. Speedboat.'
So, how can Tony Trafficker get his beloved speedboat back? In a criminal action, the burden of proof-- that is, the responsibility to prove guilt-- lies with the government. If property is seized through civil forfeiture, it is the owner's responsibility to prove that the property was not involved in any criminal activity. Therefore, if Tony wants his speedboat back, he has to prove that it wasn't used to traffic drugs. In most states, the owner has to make his or her case by a preponderance of the evidence, which generally means 'more likely than not.'
Civil forfeiture in the modern era is intended to achieve three general goals: disrupt criminal operations, deter future criminal conduct, and raise money for law enforcement agencies. In the years since the 2008 financial collapse, cash-strapped agencies have employed civil forfeiture as a means of generating significant revenue.
Because the drug trade is a primary target of civil forfeiture operations, traffic stops are a frequent method used by officers to seize assets, like cash. Roadways in border states, such as Texas and New Mexico, are popular seizure spots. In 2005, a motorist was stopped in Texas, 90 miles from the Mexico border, by a local sheriff's deputy. The motorist was given a document to sign and told that if he didn't agree to handing over all of his cash, he would be charged with money laundering. The deputies seized roughly $10,000 in cash. The motorist sued the country, and won-- he was awarded his approximate $10,000 plus an additional $110,000 in damages as well as attorney fees.
Civil forfeiture is also a tool of the Internal Revenue Service (IRS). The IRS seized over $100,000 from a convenient store owner in North Carolina on the suspicion of tax evasion. The store owner fought the forfeiture, and the case was eventually dismissed.
In 2014, the Washington Post uncovered remarkable examples of abuse of federal asset forfeiture programs. Reporters searched through thousands of reports submitted by state and local law enforcement agencies to the Justice Department's Equitable Sharing Program and found $2.5 billion in annual spending of 'forfeiture dollars.' Approximately eighty percent of the cash from the asset proceeds were from cases where no criminal charge was ever filed.
As part of the Justice Department's Equitable Sharing Program, proceeds were to be used for law enforcement purposes or operations only. However, the article detailed how police departments tended to spend their forfeiture cash, and the reports uncovered that many departments purchased high-tech gear or military vehicles. More unconventional examples of spending were also found, such as the hiring of a clown to improve 'community relations' and the purchase of a $600 coffee maker.
In early 2015, the Department of Justice announced that it would no longer permit cash and property seizures under the Equitable Sharing Program. The decision carved out some exceptions for public safety-- for example, law enforcement agencies may still seize illegal firearms, ammunition, explosives, and property associated with child pornography. Law enforcement agencies may continue to seize cash and property under state laws, but they no longer have the option of sharing forfeiture proceeds with the federal government.
Civil forfeiture is a procedure used by the federal and state governments to seize assets without filing a criminal charge. The process is intended to disrupt complex criminal operations, like drug trafficking rings. Civil forfeiture procedures originated in 1600s British Navigation laws and experienced a rebirth in the 1980s. Since then, civil forfeiture procedures have been abused in many cases in which law enforcement agencies have used the assets seized for unwarranted or unnecessary purchases.
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