A controversial legal process, asset forfeiture permits law enforcement to seize assets, like cars, cash, homes, and other property, that they suspect are connected to criminal activity. While proponents argue asset forfeiture helps fight crime by targeting illicitly gained assets, critics say it infringes on civil liberties and property rights. This in-depth guide covers everything you need to know about protecting your property from unjust asset forfeiture.
What is Asset Forfeiture?
Asset forfeiture, also called civil asset forfeiture, allows police to confiscate cash, vehicles, real estate, jewelry, electronics, and other property if they have probable cause to suspect it is the proceeds or instruments of a crime.
Civil forfeiture proceedings have a lower legal threshold than criminal cases. Police may pursue forfeiture of assets based merely on a reasonable suspicion of illegal activity, without needing to file criminal charges or obtain a conviction. This contrasts with criminal forfeiture, which depends on the defendant being found guilty of an offense beyond a reasonable doubt.
After seizure, the burden of proof flips – owners must prove their property is “innocent” and not connected to criminal activity. The assets are essentially guilty until proven innocent, which contrasts with the American justice principle of “innocent until proven guilty.”
Common Examples of Asset Forfeiture
During traffic stops, criminal investigations, airport security checks, or raids, police may seize:
- Cash, especially large amounts which they suspect are proceeds of drug deals, money laundering, or other crimes
- Vehicles used to transport contraband like illegal drugs, unlicensed weapons, stolen goods
- Electronics, jewelry, and valuables believed to be purchased with money from criminal activities
- Homes and real estate where police allege illegal activity took place or believe the property was purchased with illicit funds
- Bank accounts connected to suspected criminal financial transactions
Police do not need to arrest or charge the owner with a crime. Even if charges are never filed, law enforcement can pursue forfeiture of assets based on alleged ties to illegal activity. This means completely innocent people can have their cash, car, home, or other property confiscated if police suspect it is associated with criminal conduct.
How Police Can Seize Assets
There are two main types of asset forfeiture law enforcement use:
Criminal Asset Forfeiture
Criminal forfeiture occurs after the property owner is convicted of a crime in court. If the conviction is directly linked to the property, such as a car used to transport illegal drugs, the assets can be seized and forfeited as punishment for the crime. Criminal forfeiture requires higher legal standards of probable cause, arrest, and conviction. But if those benchmarks are met, the right to seize assets is relatively straightforward.
Civil Asset Forfeiture
Civil forfeiture does not require owner conviction or even formal charges. Law enforcement only needs reasonable suspicion of wrongdoing to seize assets for forfeiture through civil proceedings. With civil forfeiture, the assets themselves are treated as guilty. Police file a complaint against the seized property, not the owner. It is up to the owner to legally contest the forfeiture to try to reclaim their property.
Contesting an Asset Forfeiture
To contest a civil asset forfeiture and try to get their property back, owners must:
- Receive Notice of Seizure – Police must notify owners of items seized. But sometimes notices fail to reach owners if incorrectly addressed.
- File a Claim Opposing Forfeiture – Within strict deadlines, owners must file legal claims declaring their interest in the property and intention to contest its forfeiture. Missing deadlines results in default forfeiture.
- Prove Innocence – The burden is on owners to prove “preponderance of evidence” that their property is not connected to alleged criminal activity and, therefore, should not be forfeited. Police do not have to definitively prove guilt.
- Engage in Court Proceedings – Contesting forfeiture requires lengthy court battles, which can take months or years to resolve. Owners must cover their own legal costs.
- Post a Cost Bond – In some cases, owners must pay a cash bond equal to 10% of the asset value before authorities will relinquish it during legal proceedings.
As you can see, the burden on owners to reclaim seized assets through civil forfeiture is steep. Many lack the resources or legal acumen to successfully challenge forfeitures, especially when the assets seized represent owners’ life savings or ability to afford an attorney.
Police Incentives for Asset Forfeiture
A key criticism of civil asset forfeiture is the financial incentive it creates for law enforcement to pursue seizures. Agencies frequently get to keep at least a portion of the value of assets forfeited to bolster their budgets. This is known as “policing for profit.”
However, some states have passed laws banning police from retaining forfeiture proceeds. For example, Nebraska directs all funds to public schools rather than law enforcement. But lobbying by police unions has stymied similar reform efforts in many jurisdictions.
The federal equitable sharing program also allows local police to collaborate with federal agencies on forfeiture cases under looser federal laws. The feds then return up to 80% of proceeds back to the local departments, even circumventing state laws limiting civil forfeiture or directing funds elsewhere.
How to Protect Your Property from Asset Forfeiture
If you are concerned about potential seizure of your property, here are some precautions to safeguard your rights and assets:
- Educate yourself on forfeiture laws and protections in your state and at the federal level. Know your rights if you are questioned or searched by police.
- Politely refuse consent for police to search your vehicle or belongings if possible. Make them obtain a warrant, which requires higher proof.
- Keep detailed records proving cash and assets were obtained legally, like bank statements, receipts, investment records, inheritance documents, etc.
- Avoid carrying large sums of cash and be prepared to demonstrate the source and purpose for cash you have on hand. Forfeitures frequently target money.
- Don’t transport contraband like illegal drugs or weapons that could lead to seizure and serve as probable cause for forfeiture of your vehicle and other assets.
- Consult with an attorney at the first sign your assets may be targeted for forfeiture. Timely, knowledgeable legal help maximizes the chances of recovering seized property.
- Review your insurance policies. Some include clauses to help cover the legal costs of contesting civil forfeitures, which can run into the tens of thousands of dollars.
- Support local, state, and federal political efforts to enact reforms to curb abuse and protect property rights. Get involved and make your voice heard.
Asset forfeiture remains a potent threat to property and financial security, especially for minorities and lower-income Americans. Tens of billions have been forfeited from U.S. citizens, often without criminal conviction. Understand the risks to your property and take proactive steps to protect yourself. But also recognize the broader fight for reform requires public involvement and policy changes. Do your part to check the unchecked powers of civil asset forfeiture.
If your property is seized, we can help. You can visit our office at 422 Jacksonville Dr. Suite B, Jacksonville Beach, FL 32250
Or call us today for a free consultation on 904-633-9999.
