Civil Asset Forfeiture

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Overview

Civil asset forfeiture is perhaps the most vile practice that has not yet been declared repugnant to the Constitution. As recently as 2024, a majority of justices on the United States Supreme Court have called into question the constitutionality of this practice. The following quote (cleaned up) from Justice Gorsuch's concurring opinion, joined by Justice Thomas, sums up fairly well the need for the US Supreme Court to review the constitutionality of civil asset forfeiture:

Why does a Nation so jealous of its liberties tolerate expansive new civil forfeiture practices that have led to egregious and well-chronicled abuses? Perhaps it has something to do with the relative lack of power of those on whom the system preys. Perhaps government agencies’ increasing dependence on forfeiture as a source of revenue is an important piece of the puzzle. But maybe, too, part of the reason lies closer to home. In this Nation, the right to a jury trial before the government may take life, liberty, or property has always been the rule. Yes, some exceptions exist. But perhaps it is past time for this Court to examine more fully whether and to what degree contemporary civil forfeiture practices align with that rule and those exceptions.

Under California's civil asset forfeiture laws, raw material, personal property, vehicles, boats, aircraft, and even homes can be seized if they are in any way connected to the manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance. These laws can even apply to property in the possession of a minor.

Property can be subject to forfeiture for something as simple as possessing a tiny amount of a controlled substance for personal consumption. If you loan your vehicle to someone, or have a passenger in your vehicle, and they have even the tiniest amount of controlled substance, your vehicle can be seized by the government and you must follow the onerous rules and procedures to get it back, sometimes years after it was seized. If you have a large amount of cash on you, even without any controlled substances, it can be seized under the guise of being "drug money," and you will have to fight to get it back. Any slight procedural misstep and your property will be forfeited to the state. Most asset forfeiture cases involve assets valued at far less than what it costs to have an attorney represent you, so you are left to fend for yourself against government attorneys with multi-million dollar budgets. That is the evil that is civil asset forfeiture.

Seizure

A peace officer may seize property subject to forfeiture if there is probable cause to believe the property was used, or is intended to be used, in violation of the Controlled Substances Act. However, the local District Attorney (or Attorney General) is required to initiate and maintain the forfeiture proceedings.

Proceedings

Civil asset forfeiture proceedings are In Rem proceedings, meaning the property is the defendant. This is why you will see court cases with titles like People v. One 1986 Toyota Pickup and People v. $30,000 United States Currency. The forfeiture proceedings are primarily codified in section 11488.4 of the Health and Safety Code.

The process begins with a notice delivered to the person from whom law enforcement seizes the property. That person then has 30 days to file a verified claim. The prosecution must also file a notice once per week, for three successive weeks, in a newspaper of general circulation in the county where the seizure occurred, to provide notice to any third parties. Any person with an interest in the property must file a claim within the time stated in the notice. Failure to meet these deadlines may result in a default judgment and the property being forfeited to the government.

Where the value of the assets are $25,000 or less, no action is filed in court. The District Attorney only needs to provide the notices listed above, including the notice in a newspaper, and may then deem the assets forfeited if no claim is filed within the designated time. There is no trial, or even a requirement to prove the assets were drug-related, if a valid claim is not filed; the assets now belong to the law enforcement agency (with a small cut to the State, as described below).

For assets valued over $25,000, the District Attorney must file a petition in the trial court within one year of seizing the property. Any interested person must file a verified claim and serve it on the District Attorney. The Judicial Council has created a standardized claim form to oppose the forfeiture.

If a claim is filed, the court will set a hearing. The hearing is before a jury, unless waived by all parties. The agency has the burden of proof at the hearing.

Asset Distribution

Assets will be distributed in the following order:

1) To the innocent owner of the asset (if a valid claim was filed and the court rules in favor of the claimant).

2) The balance, if any, will first cover the agency's costs in bringing the forfeiture proceedings.

3) Any funds still remaining are divided as follows: 65% to the law enforcement agency that seized the property, 10% to the prosecutor, 24% to the State's general fund, and 1% to the Environmental Enforcement and Training Account.

Assistance

When law enforcement agencies are able to retain 65% of the assets seized, they have a strong financial incentive to snatch anything they can. Given the procedural complexities and short time to oppose forfeiture, this has led to widespread misuse of civil asset forfeiture laws. Many innocent owners have had their assets stolen by the government, or spent years fighting to get their assets back. If you are a victim of civil asset forfeiture, you do not have to deal with this on your own. There are attorneys who understand what you are going through and are willing to help. You need to contact an attorney knowledgeable in asset forfeiture laws immediately. Time is of the essence. Contact me today to discuss the options available to you, as well as how to move forward.