Asset Forfeiture Frequently Asked Questions
What are the different types of forfeiture?
Three primary types of forfeiture exist: criminal forfeiture, civil forfeiture and administrative forfeiture. The administrative variety is non-judicial in that it is performed by a government agency. Criminal forfeiture arises as a component of the defendant’s criminal prosecution. This forfeiture mandates the government charges the property obtained or used from the crime in addition to the defendant. If a jury determines the property is eligible for forfeiture, the court will issue an order of forfeiture. Civil forfeiture is considered in rem, meaning it is against property in a judicial matter launched by a prosecutor with the filing of a civil complaint that starts the civil case in court. There is no need to file a criminal charge against the property owner during a civil forfeiture.
Can you explain civil asset forfeiture in layman’s terms?
Do not be intimidated by this legal term. It is best to think of this process as law enforcement’s legal tool to temporarily or permanently take property they believe to have been involved in criminal activity. Your assets can be seized even if you have not been found guilty of a crime. Civil asset forfeiture proceedings are often misunderstood as the accusation is the actual property is involved with criminal activity as opposed to the person who owns it. The bottom line is police can seize your home, vehicle, valuables, money or other items without charging you with any type of crime. The unfortunate truth is plenty of innocent people have lost their money and property to law enforcement through asset forfeiture.
Why is law enforcement allowed to seize my assets?
Civil forfeiture is legal as it provides law enforcement with a means of pursuing organized crime. Asset forfeiture assists in efforts to convict drug dealers as well as the organizations these unsavory individuals work for. Civil forfeiture takes away these criminals' ill-gotten property and money. Furthermore, the seized property and proceeds are used to combat other supposed criminals as the police receive a portion of all the proceeds stemming from this property. However, some police have gone as far as aggressively seizing the property of hardworking, innocent Americans in an attempt to expand revenue.
Is asset forfeiture limited to certain states?
No. Asset forfeiture occurs in every single state in the union. It does not matter if a state has laws that limit asset forfeiture; local and state law enforcement agents are still allowed to seize your property through a partnership with federal law enforcement agents. This collaborative approach between local, state and federal law enforcement officials is referred to as equitable sharing.
Can I fight the forfeiture?
Yes. However, it is not recommended that you attempt to fight the forfeiture by yourself. You will need the assistance of a seasoned asset forfeiture attorney to stand any chance of successfully contesting the government’s seizure of your property. In some cases, law enforcement agents do not adhere to statutory requirements when seizing property. If law enforcement makes such mistakes and your attorney can prove these errors, you might be able to recovery your property. Even the slightest procedural error can ruin the government’s case.
Furthermore, some circumstances involve property owners who are not tied to the supposed crime. If you do not have knowledge of the crime or were not present at the time of the supposed crime, you have the legal right to contest the seizure of your assets. The bottom line is property seized by the government is not always lawful.
My property has been seized. What, exactly, should I do?
The most important thing you can do is hire an asset forfeiture attorney. Our legal experts understand the idiosyncrasies of the asset forfeiture process. We will break down the nuances of asset forfeiture in layman’s terms you can easily understand. Most importantly, we will zealously advocate on your behalf to have your property returned. Our asset forfeiture attorney will complete and file a claim, mitigation of forfeiture or petition for remission on your behalf. We will comply with the detailed court requirements and timeline to ensure your claim is expedited.
My asset seizure notice has a blank petition for remission along with a blank declaration to support the request to proceed. Should I fill out these forms?
If you plan on fighting the asset forfeiture, our attorneys will file a claim or petition for mitigation or remission on your behalf. Do not fill out the forms. There is no reason to submit a declaration in support of the request to proceed if a petition for remission or mitigation will be filed.
The notice does not have a sample claim. Will the attorney general have such a sample claim?
No. The attorney general does not have a sample claim. Your best course of action is to hire an attorney to ensure the claim with your notice is properly filled out and promptly submitted.
How should I determine whether I should file a claim, a petition for mitigation or a petition for remission?
Do not attempt to solve this complex legal puzzle on your own. You need the assistance of our savvy asset forfeiture attorneys to ensure you take the route optimal for your unique situation. In general, a petition for mitigation or remission is decided by the attorney general. This petition is not to be used to challenge the merits of evidence in support of forfeiture or actions of a government representative. Rather, the petition assumes there is a valid forfeiture and requests the attorney general use his or her executive power for a pardoning of the entire property or part of the property. The attorney general’s decision is final in that petitioners have no right to file an appeal in hopes of achieving a different result.
Claims are typically decided by the appropriate circuit court. Claims mandate a cost bond equal to about 10% of the property’s estimated value. The attorney general approves sureties if the claimant’s attorney cannot prove his or her interest is exempt from forfeiture.
What type of payment is acceptable for filing a claim and paying the subsequent cost bond?
A cost bond is paid with an attorney trust fund check or a cashier’s check.
Does my claim or petition for mitigation or remission have to be notarized?
Yes. The claim and related bond must be notarized by a notary public in order for them to be sworn under oath. However, if you are incarcerated and do not have access to a notary public, you must declare under penalty of perjury all statements relating to your claim, petition for mitigation or petition for remission are completely true. Furthermore, you must sign your name in the presence of an adult correctional officer.
What should I do if the property seized by the police is not included in the administrative forfeiture petition?
The attorney general does not have any jurisdiction over property not identified in the petition for administrative forfeiture. You must contact the police, seizing agency or prosecuting attorney appropriate to your case. Our attorneys are here to help every step of the way.
Is there a deadline for filing a response to the petition for administrative forfeiture?
Yes. You or your attorney are required to file a claim, petition for mitigation or petition for remission within at least 30 days of receiving the written notice or publication. The 30-day deadline commences from the point at which either of the aforementioned items is provided. If you need extra time, our attorney will request a time extension from the attorney general before the 30-day deadline expires.
How long will it take for a decision to be made on my claim?
There is no concrete timetable for a decision. The presiding circuit court will make the decision. The administrative forfeiture will be suspended until the circuit court claim outcome is reached.
How long will it take to reach a decision on the petition for mitigation or remission?
The decision for either petition is required within 60 days of the petition’s receipt. However, if case circumstances arise that require additional time, the attorney general will provide a written notification and give an expectation for the decision date timetable.
Do police strictly target criminals?
No. Do some digging online and you will find law enforcement officials seize the property of innocent people with surprising regularity. Some police departments partake in a systematic seizure of cash and property from completely innocent drivers pulled over without any evidence of criminal activity. In fact, police have even seized homes and vehicles with little or no evidence of related illegal activity. It is awfully depressing to know the government can see your property even when you are completely innocent. You need an attorney on your side to prevent such seizure and maintain a high quality of life.
If it is determined I am innocent will my property be returned?
No. Your innocence does not automatically mean the state has to return your property. The United States Supreme Court has maintained an innocent owner defense is not enough to spur the return of your property. Even if you reside in a state in which there is an innocent owner defense, you still have the burden of proof. Your property is assumed to be guilty until your attorney proves your innocence and that the seized property should not be permanently forfeited.
Your attorney is tasked with proving you have not been involved in any criminal activity, that you did not know your property was used in criminal activity and that you took reasonable steps considering the circumstances to prevent your property being used for such nefarious activity. The police will hold your property until your attorney proves each of these elements.
Should I try to contest asset forfeiture if there is no guarantee my property will be returned?
Yes. Though the rate of success for retrieving property following a seizure is lower than most anticipate, you should not give in to the state or federal government. Lean on our asset forfeiture attorneys to win your property back and we will do everything in our power to successfully challenge the asset seizure in court and ultimately have your property returned in a timely manner.
Why do so many federal civil forfeitures culminate in an administrative end?
Property is forfeited after the seizure is not challenged in a specific period of time. Forfeiture proceedings can be prevented as law enforcement waivers pressure the owner of the property to renounce ownership to sidestep criminal charges. This is a shady tactic used by law enforcement to convince property owners the charges in question are legitimate. The bottom line is asset forfeiture is a questionable practice. You need a skilled attorney on your side to represent you in and out of court so the property you rightfully own is returned in a reasonable amount of time.
My state has some of the best forfeiture laws so I don't have to worry, right?
It is certainly true that asset forfeiture laws differ by state. In some cases, federal law supersedes state law. The process described above, known as equitable sharing, empowers local law enforcement agents to partner with federal law enforcers to take property through federal forfeiture law that could not otherwise be seized through state forfeiture law. Equitable sharing lets local law enforcers keep a share of the proceeds stemming from the seizure while federal law enforcement keeps the remainder. Equitable sharing proves mutually beneficial to both groups regardless of how much state law favors residents.
Does anyone oppose the practice of asset forfeiture?
Yes. Plenty of groups oppose this somewhat shady practice. The vast majority of people and political groups who embrace the label of “progressive” or “conservative” oppose civil asset forfeiture. Politicians on both sides of the aisle have raised concerns about the positive reinforcement provided for law enforcement to seize property allegedly used to facilitate illegal activity. Critics on the left and right question whether aspects of civil asset forfeiture conflict with the 5thAmendment that states the government cannot deprive an individual of life, liberty or property unless the due process of law is applied. Unfortunately, the supreme Court and other United States courts have upheld civil asset forfeitures when ruling on 5thAmendment challenges.
Furthermore, these courts have rejected arguments against civil forfeiture that cite the 8thAmendment that bars cruel and unusual punishments and excessive fines. Nor have any of these courts ruled in favor of those who argue the 14thAmendment that forbids depriving an individual of property without due process of law should preclude civil asset forfeiture. It is interesting to note political conservatives strongly oppose asset forfeiture as taking one’s assets undermine his or her property rights. Progressives also oppose this tactic as they insist it targets racial minorities and impoverished individuals, causing significant hardship to those allegedly involved in minor transgressions.
Will law enforcement officials take my property if they are even slightly suspicious I have committed a crime?
In most cases, the answer is no. The judicial process is typically required for the seizure of an asset such as real property, money, automobiles, boats, jewelry, etc. Each state has nuanced laws that detail the procedures the government is forced to adhere to when seizing property. If the government can show probable cause that the targeted assets were acquired following criminal activity or can be traced to the criminal activity, there is grounds for seizure. The government is then required to prove in a criminal, administrative or civil hearing that the asset in question was used as a component of criminal activity or acquired through criminal activity.
How, exactly, are assets seized?
Law enforcement officials rely on a search warrant, seizure order or consent to seize assets. In some cases, the targeted individual is arrested in order for the assets to be seized.
What sorts of assets are eligible for seizure?
Contraband such as illegal drugs and illegal weapons are the most common type of property seized by the government. Aside from contraband, it is also possible for the government to take proceeds stemming from criminal activity ranging from bank account funds to cash, houses, automobiles and even an entire business.
What happens to my property after it is seized?
Once the government seizes assets, the items are stored similar to evidence seized during a criminal case. Departmental reports are composed indicating the property owner’s identification, the estimated value and the asset’s description. Furthermore, liens are recorded.
What types of law enforcement agencies are empowered to seize assets?
Law enforcement agencies representing the state, municipal and local governments are allowed to seize property allegedly tied to criminal activity. The Attorney General’s office, the County Attorney’s Office, the Internal Revenue Service (IRS), the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA) can also conduct seizure and forfeiture proceedings.
Why are police departments eager to seize assets?
The unfortunate truth about civil asset forfeiture is it encourages police to seize property even if the targeted individual is likely to be innocent. Police are eager to seize cash, automobiles and homes as the revenue stemming from such forfeiture can add a significant amount of money to the police budget.
Our Asset Forfeiture Attorney is at Your Service
Have your assets been seized? Are you worried about a potential asset seizure? If so, do not feel as though you are alone in your battle with the government. Asset Forfeiture Attorney is on your side no matter what state, city, or jurisdiction the seizure occurred in. Give us a call at 888-571-5590 to learn more about asset forfeiture and schedule an initial consultation.