Even if I Am Not Implicated in a Crime, Can Civil Forfeiture Be Used Against Me?
Law enforcement may use civil forfeiture against a person even if the person is not implicated in a crime. The property or assets that are seized do not have to belong to the criminals themselves. This is because this type of legal action has more to do with how the property was used in connection with criminal activity than the individual’s guilt.
If property has been used in connection with criminal activity, that property may be subject to civil forfeiture proceedings even if it is now owned by the people implicated in a crime. Some states, although not the majority of states, offer stronger protections to third-party property owners.
The majority of states require a property owner, regardless of their innocence or guilt, to prove that their property was not associated with criminal activity. The following is a common example of how this may occur in the United States.
Suppose Bob Smith wants to move across the United States, and so he withdraws all of his life savings from his bank. With his $20,000 in hand, Bob begins his drive across the country.
Bob gets pulled over by a police officer who sees the $20,000 in a case in the passenger seat. The police officer assumes that the money came from activity related to drug distribution and seizes it.
Although Bob has not been charged with any crime, he now has the burden of proving that the cash is not related to any criminal activities.
How Do These Proceedings Work?
Technically, civil asset forfeiture starts with a lawsuit filed by the government against the property itself. The technical, legal term for this is, “in rem.” As strange as it may seem, the inanimate property, whether it is a yacht or a bag of cash, is the defendant in a civil forfeiture lawsuit.
It depends on the jurisdiction, but, typically, law enforcement must only prove that the preponderance of the evidence shows the seized property is legally subject to forfeiture. This is because it has been used in some way in criminal wrongdoing. In some states, the standard might be proven by clear and convincing evidence, which is a more demanding standard than that of a preponderance of the evidence.
However, in some states, the standard of proof is lower. For example, in Alaska, law enforcement must establish a reasonable suspicion only that the property is related to a crime. This is a very low standard of proof. In addition, law enforcement is allowed to keep 100% of the proceeds of the forfeiture.
This standard of proof is lower than the standard that is used in criminal prosecution, which is beyond a reasonable doubt. It is conceivable that a person would not be convicted of a crime but still be unable to get their property back after they are acquitted because the standards of proof are different.
After law enforcement has justified forfeiture of the asset by a preponderance of the evidence, the burden of proof shifts to the owner. This means that it is the owner who must produce evidence in court to prove that the property was not used in criminal activity, nor was it obtained through criminal activity.
Are There Any New Laws Governing Civil Forfeiture?
Yes, there are some new pending policies and laws that affect civil forfeiture. These new laws and policies are focused on increasing transparency, having higher standards of proof, getting right of equitable sharing, and shifting the funds generated away from law enforcement agencies.
For example, in the State of Washington, HB 1440, which goes into effect January 1, 2026, provides standardized procedures, consolidated the existing forfeiture laws, and elevated the burn of proof to, “clear, cogent, and convincing evidence.”
Alabama Act No. 2021-497 governs civil asset forfeiture. It made improvements to the due process protections provided to property owners.
It also prohibits law enforcement from seizing cash amounts under $250 and vehicles under $5,000 without proper judicial process. Additionally, it banned roadside waivers.
At the federal level, there has been a proposed law called the Fifth Amendment Integrity Restoration Act, or FAIR Act, which seeks to end equitable sharing, or when local law enforcement agencies get federal funds when property is seized, to end policing for profit, and to require property to go to the Treasury.
This proposed law also seeks to increase protections provided to property owners, shift the burden of proof for the government, and have judicial oversight for all forfeitures. It also seeks to make federal law similar to the principle of being innocent until proven guilty by making the government show, by clear and convincing evidence, that the property owner knowingly used the property in question for a crime instead of allowing the owner to prove their innocence.
Many states have also reformed their applicable laws in the last decade, focusing on additional owner protections and direction of funds. There are also cases being examined by the Supreme Court regarding civil forfeiture issues.
These issues and changing laws are important, as an individual’s property may be seized without any criminal charges. This makes it difficult for them to get their property returned, especially without legal assistance.
These laws can be updated at any time, especially when there are changes in presidential administrations. The laws are also likely to be different in each state, meaning it is important to consult with a local lawyer for any civil forfeiture issues.
What Kind of Property Can Be Seized Under Civil Forfeiture?
Almost any type of property may be seized by law enforcement under civil forfeiture. The most common types of property that are seized include:
- Vehicles
- Cell phones
- Jewelry
- Cash
Some states, including Kentucky, have more strict requirements for seizure of real property, but generally, real property can be forfeited as well. Special protections for the forfeiture of real property are not common, however.
For Which Crimes Is Civil Forfeiture Most Often Invoked?
Civil forfeiture is most commonly used in drug cases and racketeering cases. The use of civil forfeiture, however, has expanded dramatically over the past few decades. Civil forfeitures are not being used for crimes that range from prostitution to shoplifting.
What Happens to My Property?
What happens to a person’s property is one of the most controversial aspects of civil forfeiture. In the majority of cases, the property is sold, and the law enforcement agency or the district attorney’s office is permitted to keep the profits generated from the sales.
In some states, laws have been enacted to protect property that was acquired through civil forfeiture. Therefore, the incentive for law enforcement to seize property in the first place is reduced. For example, the State of Indiana requires that 100% of the funds go to a public school fund in the state.
There are also other states that have similar laws that prohibit civil forfeiture funds from going to law enforcement, including:
- Maine
- Maryland
- Missouri
- New Mexico
- Wisconsin
Although most states have much higher numbers, there are a few states which have a limited version of the law. For example, in some states, only 50% of the funds recovered through civil asset forfeiture are allowed to go to law enforcement.
In other states, however, 100% can go to law enforcement. As noted above, this is the case in Alaska.
Am I Subject to Civil Forfeiture Everywhere?
The majority of states and the federal government permit civil forfeiture prior to any conviction, so it may even occur before an arrest or a criminal charge is filed.
It is important to note that states are beginning to reform their civil forfeiture laws in order to provide citizens with more protections for their property. The states that currently require a criminal conviction or a guilty plea prior to any civil forfeiture include the following:
- Missouri
- Montana
- Nebraska
- Nevada
- New Mexico
- New York
- North Carolina
- Oregon
- Vermont
There are other states which have opted to keep their laws intact. They do so because the funds that are seized from property are used for public safety programs and law enforcement resources, including computers, vehicles, and dogs.
Even though this is the case, more states are expected to reform their civil forfeiture laws, as many states have pending legislation in favor of property owners.
How Do Civil Forfeiture Cases Affect Immigration Issues?
If someone is involved in a civil forfeiture related to a criminal case, it can also have an impact on their immigration status. There may be issues involving mandatory detention and starting of the removal process, depending on the nature of the criminal charges or conviction.
It is important to note that the exclusionary rule, or the rule in criminal proceedings that prohibits illegally obtained evidence from being admitted, does not apply to immigration cases, as they are considered civil in nature. However, evidence has been suppressed when there has been an egregious or widespread Fourth Amendment violation issue.
There are many different categories of issues that can arise in hybrid criminal and immigration cases. One is the definition of an aggravated felony, which can include specific crimes, such as rape, murder, drug trafficking, and more.
Offender Penalties
Offenders may face severe penalties, which can include mandatory detention as well as inadmissibility. This can happen even if their criminal sentence was less than one year. In addition, the definition of the offense may be broader under immigration law than under criminal law.
In many criminal cases, the defendant is eligible for bail. Individuals facing removal, however, may be subject to mandatory detention without a bond hearing, whether or not they are a flight risk or danger to their community.
The availability of expedited removal means that an immigration officer, not a judge, can make fast removal decisions. These decisions may be made without legal counsel. This can impact the due process rights of the detainee in some situations.
Because deportation is a civil issue, the detainee does not have the right to an appointed lawyer as they would in a criminal case. It can be difficult for detainees to understand the immigration and criminal processes and how they interact, making legal representation essential to avoid severe consequences.
In the immigration context, the detainee may have limited defenses available to their situations, such as having a valid asylum claim. It may also be difficult for someone without legal training to fully understand the deadlines required and the consequences for not following them, even with a valid claim.
How Can a Detainee Get Their Property Back After a Civil Forfeiture?
In order for a detainee to get their property back following a civil forfeiture, they need to file a formal claim with the agency that seized the property immediately. This can be done by mail or online at forfeiture.gov.
The individual must assert their ownership interest and will likely need to file a Petition for Remission/Mitigation within 30 days under oath. The best way to get property back in these cases is to consult with an immigration lawyer who can also file other motions, such as those for expedited release, in addition to contesting the forfeiture in federal court.
Should I Consult a Defense Attorney if My Property Has Been Seized?
If law enforcement has seized your property, you want to consult a criminal defense attorney as soon as possible. It does not pay to wait when it comes to seeking the return of property subject to civil asset forfeiture. The laws vary by state, so it is important to consult with an attorney near you as soon as possible.
Because of the frequent changes and updates in laws of any type, but especially immigration, it is essential to have help from a lawyer so you know you have the most up-to-date information for your case or defense. When you use LegalMatch, you can choose your attorney preferences, such as their language, location, and religious preferences.
LegalMatch.com offers free services that can connect you to an attorney who has experience with civil asset forfeitures. Your attorney can review your case, advise you of the civil forfeiture laws in your state, and represent you in your action to get your property back.
