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Civil asset forfeiture is a concept that frequently crops up in the news, e.g. the recent Washington Post article "Drug cops took a college kid’s savings and now 13 police departments want a cut".

Usually, the laws underlying the process are not described in detail, but the above cited article makes it sound as if police can just make up any somewhat reasonable claim they like regarding a possibly illegal source of the assets and then seize them without judicial oversight. I'm having a hard time believing that this is actually how it works.

What is the legal framework for civil asset forfeiture? What recourse is there for people being subjected to it?

  • @nomen assets in a criminal case may be seized under civil forfeiture statutes, so the criminal-law tag is apt. – jimsug Jul 2 '15 at 21:19
  • If you want to learn about it, watch: youtube.com/watch?v=3kEpZWGgJks – Andrew Jul 3 '15 at 5:39
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On the contrary there are hundreds of federal statutes that sanction civil forfeiture, as well as 18 U.S.C. § 983 (and other subsections inter alia) that governs civil forfeiture.

What you seem to be more concerned with is the judicial oversight and regulations around civil forfeiture.

The burden of proof varies between, and within, states - in some, prima facie/probable cause is all that is required, in others, a preponderance of evidence, or clear and convincing evidence is required. Just three states require proof beyond a reasonable doubt and civil forfeiture is only illegal in New Mexico.

Civil forfeiture is subject to judicial review: a list of notable cases in civil forfeiture is available on Wikipedia. Here's some of the more interestingly-named ones:

Marcus v. Search Warrant held that the search and seizure procedures in that case lacked safeguards for due process, freedom of speech, and freedom of press.

One 1958 Plymouth Sedan v. Pennsylvania held because the vehicle was searched without a warrant, and the untaxed liquor found thereby was used to invoke the forfeiture, the forfeiture was illegal (the Fourth Amendment protects against unreasonable searches and seizures).

So, what is the legal framework? Broadly speaking, 18 U.S.C 983, as well as state legislation.

What recourse is there? Judicial review. However, the procedures vary between jurisdictions.

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In general, in a civil forfeiture case, a law enforcement agency seizes the property based upon probable cause that it is connected with a crime and/or is contraband, and then (depending on the nature of the property, the the civil forfeiture statute invoked) gives notice by mail and/or publication to potential owners of the property (sometimes in connection with a civil lawsuit, sometimes in an administrative process).

The notice requirements are much more lax than in a typical civil lawsuit and the time limits are generally quite short (on the order of weeks rather than months or years). If there is no timely response, the property is forfeited.

If there is a timely response, the agency may relinquish the property if they agree they were in the wrong, but otherwise (and usually), the process must be escalated by a claimant into a hearing typically with a preponderance of the evidence standard of proof, at which the claimant must prove that the property is not subject to forfeiture.

The 5th Amendment cannot be invoked by someone seeking to recover property in a civil forfeiture, so making a claim risks providing evidence for a criminal case against the claimant.

The court with jurisdiction is typically one where the property was seized which is difficult for property that was in transit or seized from someone who was traveling.

The rights of non-owners (e.g. mortgage holders) in property that is seized to notice, and to relief if they are not given notice and the property is seized, varies.

It is hard to be specific, because so many different laws are involved. For example, I have the most experience representing people when the postal service seizes property, but have seen it play out in other contexts, each of which has procedural nuances. Indeed, figuring out which civil forfeiture law applies is often the first problem facing a victim of civil forfeiture.

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