All states in the U.S allow the federal government law enforcement officers to seize, forfeit and sell any property or material alleged to be associated with illegal activity, for example, cash, real estate, and cars. The purpose of forfeiture laws is to disrupt or cripple criminal activities by diverting their resources.

However, most law enforcement officers misuse asset forfeiture laws to benefit themselves by taking properties from innocent citizens they know have no sufficient resources to fight the underlying charges. Fortunately, the impact of recent state asset forfeiture changes following the enactment of Senate Bill 443 requires you to be under conviction before the government can benefit from your property. Ensure you talk to an attorney to know how you can protect your property from forfeiture.

An Overview of Asset Forfeiture

Law enforcement officers confiscating and selling your property even if you are not under arrest/under custody seems like a fantasy that would never happen in modern America, right? Think about it again because this practice exists, and it's known as asset forfeiture.

When police officers confiscate your property whether its a house or a car, they must prove the connection of the alleged criminal activity to your property in a civil court before they can benefit from proceeds of the property. Funny as it may seem, this lawsuit is essentially against your property and not yourself, which makes you a third-party claimant in a civil forfeiture case.

In a civil forfeiture case, you don't have to be guilty of the alleged crime for the government to seize your property. The court may allow law enforcement officers to seize your property as long as they can prove to the jury that other people apart from yourself were using the property for illegal activity.

For the government to obtain your property through forfeiture, they must show the judge the evidence’s preponderance to prove that your property is associated with illegal activity.   The preponderance of the evidence in a civil forfeiture case is a standard of proof that is lower than "beyond a reasonable doubt," which applies in criminal cases. In the U.S, asset forfeiture can happen in two ways, that is:

  • Criminal asset forfeiture – You can be subject to this type of forfeiture proceeding only if you are under conviction for an underlying criminal offense
  • Civil asset forfeiture Civil asset forfeiture proceeding is a lawsuit against your property and not yourself. Prosecutors in a civil asset forfeiture must prove to the judge the link between your property and illegal activities to keep or forfeit the property

Most asset forfeiture proceedings in the country are usually civil cases, where the government alleges that a particular property has ties with illegal activities. When the government forfeits your property after a civil suit, they can either keep, destroy, or sell it to fund law enforcement expenses such as:

  • Equipment
  • Investigative activities
  • Drug education programs
  • Compensation to crime victims
  • Supplement school budget
  • Prosecutorial costs

Law enforcement officers argue that asset forfeiture helps cripple criminal activities because it defunds organized crimes and weakens criminal cartels. While this theory might help curb illegal activities, several law enforcement officers use this method to confiscate and profit themselves illegally from your property or savings, even if there are no criminal charges against you.

To curb or prevent this unprofessional vice by law enforcement officers, California Governor Brown signed Senate Bill 443 (SB 443) in 2017. Initially, before enacting SB 443, police officers would seize and forfeit your property even if you are not under arrest or facing any criminal charges. If they seize your property, it will be upon you to prove your innocence to regain control of your property again.

However, with the new changes on state asset forfeiture laws, law enforcement officers have no right to confiscate your property or cash without a conviction. The recent state asset forfeiture changes will further restore the trust between people and law enforcement officers by enhancing your property rights protections.

Notable Impacts of Recent State Asset Forfeiture Changes

California was the first state in the U.S to make a significant change on the countrywide movement on asset forfeiture reform by enacting Senate Bill 443 into law. Under initial asset forfeiture laws, police could seize your property or cash without even filing any criminal charges against you.

The aim of the recent asset forfeiture changes through SB 443, which was effective in 2017, is to close the loophole that initially could allow a law enforcement officer to seize or confiscate your property without a conviction.

Before enacting SB 443, a federal forfeiture program by the name "Equitable Sharing" could allow state law enforcement officers to hand over the seized property to federal law enforcement agencies like the ICE OR DEA.

When federal law enforcement agencies forfeit your property, the participating agencies may receive up to 80% of the proceeds, higher than the proceeds’ value California law grants to any law enforcement authority.

However, after enacting the recent Senate Bill 443, law enforcement agencies nowadays must obtain a criminal conviction against you before they can receive an equitable share of payments from your asset forfeiture. SB 443 has put several restrictions on the federal forfeiture practice of equitable sharing. Here are major notable changes with the recent asset forfeiture changes:

1. Changes on the State Interaction With the Federal Asset Forfeiture Processes

Enactment of SB 443 has come with some changes in the state interaction with federal asset forfeiture processes. Some of these changes include:

Prohibits Federal Adoptions

SB 443 prohibits local and state law enforcement agencies from requesting the federal government to adopt criminal cases in which federal law enforcement authority has no involvement. However, SB 443 does not alter the local and state law enforcement agencies' ability to collaborate in joint investigations.

Requires Criminal Conviction Before They Can Benefit from Proceeds of Federal Forfeiture Proceedings

SB 443 requires you to be under arrest/under custody for the alleged criminal offense to act as a receipt to warrant law enforcers to acquire proceeds from federal forfeiture proceedings. SB 443 prohibits the local and state law enforcement agencies collaborating in joint investigations on criminal cases from receiving any proceeds from seizures that are less than $40,000 in value.

These agencies can only benefit from distributions coming from these seizures only if you are under conviction for a specific criminal offense for which the item or property is subject to forfeiture under California law. However, a criminal conviction is unnecessary if your property that the police want to forfeit is cash or a negotiable instrument worth more than $40,000.

2. Changes to the State Asset Forfeiture Processes

Changes to the state asset forfeiture processes are also significant towards the primary goal of reforming national asset forfeiture laws, which violate people's rights of property ownership by forfeiting their property without a conviction. Below are some of the noticeable changes with the state asset forfeiture processes:

SB 443 Increases the Burden of Proof to Demonstrate in Court for Seizures Which are Between $25,000 and $40,000

Before enacting SB 443, the court would require prosecutors to demonstrate above a reasonable doubt that seizure of certain items like homes, cash, vehicles, or negotiable instruments worth up to $25,000 meets the state requirements for seizure. That means they must be justifiable in an authorized state forfeiture theory.

Initially, the federal court would require clear and convincing evidence, a lower burden of proof for cash, and any negotiable instrument worth more than $25,000. However, with the recent SB 443, the burden of proof for cash and any negotiable item ranging between $25,000 to $40,000 should be above a reasonable doubt. Cash and all instruments worth more than $40,000 continue to require clear and convincing evidence.

Seizures Worth Between $25,000 and $40,000 Require a Criminal Conviction through Civil Judicial Proceedings

The court will only issue prosecutors the order to forfeit your property, which a proof above a reasonable doubt is integral if:

  • The judge pronounces you guilty of the underlying criminal offense
  • Your conviction is for a criminal offense in which asset forfeiture is legally allowable under California law.
  • The criminal offense the court finds you guilty of occurred within five years of the asset forfeiture process’s commencement.

With SB 443 evidence being above a reasonable doubt for asset forfeiture ranging between $25,000 to $40,000, law enforcement officers must also meet the above three conditions before making any seizure.

Why is it Difficult to Determine the Economic Impact of SB 443?

Even with careful analysis of annual asset forfeiture data that the California Department of Justice (DOJ) receives, it is challenging to determine the economic impact of SB 443 because:

1. The Data Available Reflects Changes Outside Senate Bill 443

Apart from the enactment of SB 443 in 2017, there are more other changes regarding state asset forfeiture that was effective at around the same time. Some of these changes have led to increased distributions, while others have led to decreased distributions.

Since asset forfeiture data that DOJ receives shows the net impact of all these changes, including SB 443 changes, it is difficult to filter out the economic impact of SB 443 alone. Below are other changes in asset forfeiture processes:

Federal Changes With Impact on Asset Forfeiture

Apart from SB 443 asset forfeiture changes, the federal government has also come up with several changes on federal asset forfeiture processes, collectively impacting distributions to state law enforcement. Additionally, the practice of law enforcement agencies transferring asset forfeiture proceeds amongst themselves is over.

These changes collectively make it administratively overwhelming for particular law enforcement agencies to benefit from asset forfeiture proceeds. These changes mainly affect law enforcement agencies that participate in the process of asset forfeiture through task forces.

Thus, some agencies have no other choice but to limit their participation in these asset forfeiture task forces, which reduces the amount they receive from asset forfeiture. However, it is overwhelming to determine this because some of these agencies are still adapting to these recent state asset forfeiture changes.

There are More State Changes with Impact on Asset Forfeiture

Recent California law changes affect the amount the local and state law enforcement agencies can acquire from asset forfeiture. For instance, Proposition 36 (Prop 36) led to the legalization of marijuana in 2016, and Proposition 47 led to the reduction of potential penalties for non-violent crimes in 2014. The impact of both of these changes is likely to result in a decrease in asset forfeitures.

Other State and Federal Actions

Other state and federal actions have also led to a significant impact on asset forfeiture distributions. For instance, because of the 2015 budget cut, the federal government delayed proceeds from forfeiture for at least a year. Because of this delay, state asset forfeiture data after this period that could help determine the economic impact of SB 443 is not accurate.

2. Most of the Data that California DOJ Receives is Incomplete and Limited

Determining the economic impact following the implementation of SB 443 becomes more overwhelming and burdensome because asset forfeiture data that California DOJ receives is incomplete and limited due to the following reasons:

Reporting on State Annual Forfeiture Cases Did Not Occur

California law requires annual reporting of state annual forfeiture cases that go through legal proceedings. However, among the 58 states in the U.S, about 41 percent of them did not report this crucial information for the last eight years.

Law Enforcement Authorities are Still Adapting on the Recent Requirements to Submit Reports on Federal Distributions

Senate Bill 443 requires law enforcement authorities to report any new data on state asset forfeiture cases, but they often report incomplete data. Many people argue that this could be because this is a new responsibility for them that they need time to adapt, meaning future reports on asset forfeiture cases could be complete.

Law Enforcement Authorities Submit Reports on Asset Forfeiture Late

Typically, law enforcement authorities report data on asset forfeiture after resolving the underlying case and distributing the asset forfeiture proceeds. Thus, it is common for data on asset forfeiture to delay for at least one year, making it overwhelming to conclude recent asset forfeiture changes' economic impact.

Other Challenges that Make Comparison of Asset Forfeiture Data Overwhelming When Evaluating Economic Impact of SB 443

Determining the economic impact of SB 443 requires careful analysis of the asset forfeiture data that California DOJ receives. However, challenges with this data source make it burdensome and overwhelming to compare this data to conclude the economic impact of SB 443. The following are some of the challenges with the source of this data:

  • State and federal annual data reports start in different months
  • Federal data contains general data of all forfeitures, including those that are not drug-related, while SB 443 pertains to drug cases only.
  • Data about distributions on particular law enforcement agencies exclude some crucial data from federal distributions

Take Away Points on the Recent State Asset Forfeiture Changes

Before implementing SB 443, California law enforcement officials working with federal agencies took $10,000 of cash from asset forfeiture through the U.S Division of Justice (DOJ) program. Federal officials would keep about 20 percent of the proceeds resulting from asset forfeiture. The state would keep the entire balance even if you are not under conviction for an individual offense.

Fortunately, with recent changes on the state asset forfeiture, particularly the enactment of SB 443, prosecutors who want to forfeit your property for an alleged criminal offense must prove the offense's connection to the property. During this time, you may want to retain an attorney like Asset Forfeiture Attorney for a thorough legal defense to counter the prosecutor's criminal allegations against you or reduce the charges.

Contacting an attorney immediately after the confiscation of your property is a wise thing to do because an attorney can be able to raise a couple of legal defenses to counter the underlying charges showing your property is subject to forfeiture. For instance, your attorney can argue that you had no idea that the property had a link with the alleged criminal activities.

After California implemented SB 443 in 2017, many other states in the U.S are now adopting similar anti-circumvention laws to curb the participation of their law enforcement agencies on equitable sharing of proceeds from asset forfeiture. These states include:

  • Maryland
  • Alaska
  • Washington DC
  • New Mexico
  • Nebraska

Find an Asset Forfeiture Attorney Near Me

The purpose of asset forfeiture is to curb criminal activities by interrupting their resources and income. However, this method has become one of the most common and severe ways law enforcers abuse many people's private property rights. If any of your property is subject to forfeiture due to criminal allegations, we invite you to contact Asset Forfeiture Attorney at 888-571-5590. The impact of recent state asset forfeiture changes does not allow this kind of power abuse from law enforcers regarding asset forfeiture.