If news articles like this and this are accurate, then U.S. law enforcement can confiscate private property, including cash, without convicting someone of a crime – or even charging them – under a theory called "civil asset forfeiture."

The Constitution (5th and 14th amendments) clearly states that no one shall be deprived of life, liberty, or property without due process of law.

This is clearly depriving citizens of property, and there appears to be no due process, so how has civil asset forfeiture survived challenges in the courts? That is, why isn't this a violation of the 14th and 5th amendments? (Last sentence added and italiziced to distinguish from other question How exactly does civil asset forfeiture work in the United States?)


1 Answer 1


Civil forfeiture typically pits the government against property, not the government against an individual, and in the US (also anywhere else), only people have rights: property has no rights. The first relevant instance to reach the Supreme Court was an early case, The Palmyra (25 US 1), where a ship was confiscated because it had been used in privateering against the US. Although the owner had been convicted of nothing, the court still allowed the confiscation since

The thing is here primarily considered as the offender, or rather the offense is attached primarily to the thing, and this whether the offense be malum prohibitum or malum in se

The defendant here is the ship itself, not the owner of the ship (known as in rem proceeding). The case law is replete with cases like "US v. $500,000", and such forfeitures have long been part of the arsenal to be used against wrong-doing, a law authorizing this having been one of the first acts of the US Congress, especially applicable to ships and cargo involved in piracy. The courts have repeatedly allowed such confiscation, at least in certain circumstances.

In one more recent case, Van Oster v. Kansas, 272 U.S. 465, the court stated that

It has long been settled that statutory forfeitures of property intrusted by the innocent owner or lienor to another who uses it in violation of the revenue laws of the United States is not a violation of the due process clause of the Fifth Amendment

followed by a huge list of citations. Because of the doctrine stare decisis (courts respect prior rulings in similar cases), once a pattern is deemed constitutionally acceptable, it is very hard change that interpretation of the law.

It should be noted that J. Thomas recently hinted in a dissent that there is a Due Process problem with civil forfeiture, raising strict scrutiny type objections to civil forfeiture, specifically that forfeiture was typically more narrowly applied – limited to customs and piracy, and

justified by necessity, because the party responsible for the crime was frequently located overseas and thus beyond the personal jurisdiction of United States courts

also observing that

founding-era precedents do not support the use of forfeiture against purely domestic offenses where the owner is plainly within the personal jurisdiction of both state and federal courts

Essentially, the reason why civil forfeiture (in its current revenue-generating incarnation) hasn't been ruled unconstitutional is that a persuasive argument has not been made to that effect. The court can't just decide this on its own, and in the most recent case, the constitutional issue was only raised at the Supreme Court, not in the Texas appellate court where it should have been raised.

The most significant problem is that it isn't clear what constitutes "due process of law". There is, in all jurisdictions, some kind of legal process (see this report for an overview of the kinds of process involved). The standard of proof that allows forfeiture is pretty low (being a civil case, it is not "beyond a reasonable doubt"), and there are various impediments discouraging anyone from suing to prevent forfeiture (which until 2000 included a substantial bond requirement and the threat of having to pay the government's attorney's fees if you lose). Since there is a process whereby forfeiture can be challenged, a more sophisticated argument is needed, based on Due Process.

  • 1
    So if I build a big apartment, and someone smoke weed in one of the room, then government have right to seize the whole apartment?
    – user4951
    Commented Feb 23, 2018 at 6:50
  • 1
    They would have the power, but not the right. Whether they would try to do so depends on lots of variables: unlikely, but possible.
    – user6726
    Commented Feb 23, 2018 at 15:10
  • There have been numerous cases of cops seizing property with no cause whatsoever against either the owner or (cough) the property. Numerous stories such as "I was driving, the cop stopped me and asked whether I had large sum of money, I said yes, $100, he took it from me and said it was civil forfeiture." Civil Forfeiture is just robbery that has been inexplicably legalized. The "we are arresting the property" is on the face of it a bogus excuse.
    – Michael
    Commented May 5, 2021 at 21:35
  • “The most significant problem is that it isn't clear what constitutes "due process of law"” That’s exactly how China, Russia, North Korea and the like tends to argue. Very nice. And the flagrant bs that the property is the defendant is equally ingenious as the arguments of the sovereign citizens. Just this time coming from the government. The due process of the law is defined in many ways within the constitution and its amendments. Right to counsel, right to jury trial, right to confront witnesses, right to speedy trial, prohibition of double jeopardy etc.
    – kisspuska
    Commented Nov 10, 2021 at 17:22
  • In absence of statute* and if in further doubt, common law, equity, international treaties, international customary law or other sovereign states laws and jurisprudence etc. There’s enough sources to not get lost like a sovereign citizen. It’s just great for the government because this way they can still exploit and retaliate on African-Americans for their historic unwillingness to build your country for you. (The reason why the same practice is probably less frequently exploited against other minorities)
    – kisspuska
    Commented Nov 10, 2021 at 17:25

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