A Short History of Civil Forfeiture in California

Under existing state and federal law, government agencies are able to exercise both criminal and civil forfeiture of private property. With criminal forfeiture, a person must be convicted of an actual crime in a court of law. The individual’s property cannot be forfeited unless he/she is shown to be guilty beyond all reasonable doubts. This is part of the Constitutional rights of the accused. 

But with “civil forfeiture,” no such protections exist as do with criminal forfeiture. It is not necessary to prove that the property was illegitimately acquired. Instead, government agencies simply seize the property. The basis for this seizure is a “legal fiction” wherein an inanimate object is treated as if it were charged with a crime. The owner of the property, however, is often not charged at all. The “in rem” (Latin for against a thing) legal cases of civil forfeiture often have names as odd as the legal theory- like U.S. vs. $10,000 or State of California vs. AK47. Because this action against a thing is a civil action, none of the protections afforded the criminally accused apply, and private property is arbitrarily confiscated.

The history of civil forfeiture is long and confused. It began in the Middle Ages as a superstition known as deodand, which said that an inanimate object could act on its own to take its victim’s life. Deodand allowed a king to confiscate a weapon that caused a person’s death and sell it to pay for the funeral. Thus, a fictitious assigning of guilt to an inanimate object arose. 

Civil forfeiture in the United States, however, finds its immediate roots in the 17th Century British Navigation Acts, which demanded that all goods imported to or exported from Britain be transported on British vessels. If this was not done, and the fact became known, then the ship’s cargo, would be taken by force and added to the king’s possessions. The ship itself could also be seized, even if the owner was not involved in the violation. 

Based on these British precedents, the very first Congress of the United States established forfeiture as a means of collecting customs duties. Since 80% to 90% of U.S. revenue came from such duties, extreme measures were taken to ensure faithful payment. The Supreme Court later heard challenges to this practice but upheld it. The court’s decision, however, kept civil forfeiture restricted to a very small domain- customs collections, piracy laws, and admiralty laws. The argument was that, in these cases, it would be unrealistic to proceed with criminal prosecutions of the violators since they were often located in foreign countries. There simply was no other way to enforce these laws when the lawbreakers were not within U.S. jurisdiction. In his opinion, Justice Story recognized that such forfeiture laws treated a vessel as if it had committed a crime without any regard for the actions of the vessel’s owner. Yet, he justified the laws anyway as the “only adequate means” of stopping the offense from continuing and ensuring that an “indemnity to the injured party.”  

During the period of the Civil War, some further expansions of civil forfeiture occurred, yet, it still remained a “legal backwater” during the 19th Century and for the greater part of the 20th Century. The only major exception to this was the use of civil forfeiture to confiscate vehicles that were used for the transportation of illegal alcoholic beverages.

The real rise of civil forfeiture as we know it today began in the 1980’s when the federal and state governments were desperate for new tools to use in the War on Drugs. To accomplish this goal, a new “incentive” was placed on the confiscation of property related in some way to illegal drugs- the financial incentive of allowing law enforcement to keep the funds that civil forfeitures produced. This had never been the case before, but such proceeds had always gone into the general-fund of the government that seized the property. In 1984, the Assets Forfeiture Fund was created by Congress via an amendment to the 1970 Comprehensive Drug Abuse and Prevention Act. This amendment allowed the U.S. Attorney General to put the money gained through civil forfeitures into this new fund, which was then used to finance various law enforcement agencies.

Following the 1984 amendment, there were yet further expansions of the boundaries as to what civil forfeiture funds could legally be used for. Soon, the funds were being put toward the acquisition of new policing vehicles and even to finance overtime pay. Because federal law enforcement was now allowed to keep and spend the money they seized from private property owners, a financial incentive for “policing for profit” was institutionalized.  

On the state level, things soon began to move in the same ominous direction. State laws were adjusted to empower agencies to share directly in the profits from property they took by civil forfeiture. Today, such a situation obtains in a startling 42 states, and there are few restrictions and oversight.

There have been some attempts at curtailing the abuses of civil forfeiture. For example, the 2000 Civil Asset Forfeiture Reform Act brought a few minor reforms. However, the fact that proceeds from seizures are going to federal law enforcement agencies was not changed, and there was no significant reform to how those funds are specifically allocated.   

In sum, civil forfeiture is now wildly disconnected from its historical roots in the practical necessities of enforcing customs duties. The individuals whose property is seized are not inaccessible in some far-flung land, but yet state and federal governments are accustomed to opting for an outright seizure to avoid the need to prove guilt in a court of law. Civil forfeiture has become a routine tool in law enforcement for fighting, not only drug-related crimes, but a long laundry list of criminal activities. Over 400 federal laws now grant law enforcement civil forfeiture prerogatives for a wide range of reasons, and every state has followed suit with similar statutes of their own.

We at the Law Firm of Jacek Lentz are familiar with the details of civil forfeiture proceedings both in California and throughout the nation. Contact us today at

888-571-5590, and we can give you a free legal consultation to find the best strategy for winning your civil forfeiture case in as cost-effective manner as possible.

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Asset Forfeiture Attorney
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Asset Forfeiture Attorney
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