What is civil forfeiture?
Civil forfeiture occurs anytime law enforcement seizes property from a person suspected of being involved in a crime. Property that is seized during a civil forfeiture can include boats, cars, houses or anything else that law enforcement believes is involved in the crime. The process of seizing assets is also called civil judicial forfeiture or civil seizure.
What’s wrong with civil seizure?
Civil forfeiture can occur as soon as an arrest is made. However, the person who was arrested may later be found not guilty of the crime. Or, the person’s case may be dismissed or otherwise resolved in his favor. So what happens to the property that was seized during the arrest? Does it automatically get returned to that person? Sometimes, the seized property is sold at auction before the person has an opportunity to request it back through a civil forfeiture proceeding. This is especially troubling when, as we have seen, someone was wrongfully arrested, his property was seized during the arrest, it was sold, and then the criminal case was dropped. The person ends up with a record of criminal charges and without his property.
This is an extremely controversial practice, as noted by Supreme Court Justice Clarence Thomas. “In rem proceedings often enable the government to seize the property without any pre-deprivation judicial process and to obtain forfeiture of the property even when the owner is personally innocent … Civil proceedings often lack certain procedural protections that accompany criminal proceedings, such as the right to a jury trial and a heightened standard of proof.
Despite these deficiencies, the Court has long upheld civil forfeiture as a law enforcement tool, based primarily on the argument that forfeiture ‘existed at the time of the founding.'”
Why defend law enforcement?
Law enforcement is doing its job. The act of seizing property possibly used in the commission of a crime preserves that property as evidence in the underlying criminal proceeding. Also, the seizure of property removes that thing from use by other potential criminals. The process of civil forfeiture has been established as a remedy for people to get their things back after the criminal case is dropped. However, as Justice Thomas stated above, this process needs to be revised. But this is not the fault of the police, it is in the hands of the legislature.
The civil forfeiture law needs to be revised. The law should provide criminal defendants ample opportunity to reclaim their property once the criminal case is resolved. The law should require an Evidence Control Unit (ECU) to make sure that a seized asset is marked with its associated criminal case name and number. The law should also provide that ECU check the status of the criminal case so the asset is not sold earlier than, for example, six months after the conclusion of the criminal case.
Rausch Law understands the complexities involved in navigating civil forfeiture cases. If you are have questions about civil forfeiture, contact Rausch Law at 443-280-9167.
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