What are common defenses against asset forfeiture?

Common Defenses Against Asset Forfeiture

Asset forfeiture is a controversial practice that allows law enforcement to seize assets, like cash or cars, that they suspect are tied to criminal activity. Even if the property owner is never charged with a crime, it can be difficult for them to get their stuff back.

There are some legal defenses people can use to fight asset forfeiture and try to reclaim their property. Here are some of the most common strategies:

Innocent Owner Defense

One of the most powerful defenses is to argue you’re an innocent owner. This means the property was taken without your knowledge or consent. For example, if your spouse or child used your car to transport drugs without telling you, you can fight the forfeiture by proving your innocence.

To use this defense, you must show you did not know about or participate in whatever illegal activity allegedly occurred. You have to establish you took reasonable steps to prevent misuse of your property. This can be tricky to prove, but it is one of the main ways for innocent people to fight unfair seizures.

Excessive Fines

Asset forfeiture has been criticized when the value of property seized seems out of proportion to the alleged crime. The Eighth Amendment prohibits excessive fines, so property owners can argue the forfeiture violates this right.

If your state took a $100,000 house because of a minor drug charge, for example, you may have grounds to say it’s an excessive fine. The defense has succeeded in some cases when the seizure seems grossly disproportionate.

Lack of Notice

In many states, the government must send you written notice of forfeiture proceedings within a certain timeframe. If you don’t get proper notice, it undermines your due process rights. Without notice, you don’t have a chance to contest the forfeiture.

If you did not receive proper notice or the notice came too late, point this out immediately. Time limits apply, though, so don’t wait too long if the notice violated the rules.

Illegal Search and Seizure

Asset forfeiture often stems from a search of property or vehicles. If the search violated the Fourth Amendment in some way, any evidence found may be inadmissible. This can undermine the seizure and forfeiture.

For example, if police searched your car without consent or probable cause, the defense can argue the search was illegal. Any evidence found cannot be used to justify the forfeiture. Suppressing the evidence may lead to return of the seized asset.

Inadequate Evidence

In civil forfeiture cases, the standard of proof is lower than in criminal court – the government only needs a “preponderance of evidence.” Still, you can argue the evidence is too weak for forfeiture.

If the prosecution relies on circumstantial evidence or the links between your property and illegal activity seem tenuous, highlight those weaknesses. Force the state to prove the strength of their case.

Hardship Claims

Some states allow you to seek return of property if forfeiture would cause undue hardship. This applies in cases where the seizure threatens your livelihood or ability to function.

For example, forfeiture of a vehicle could cause major hardship if you use it for work and have no other transportation options. If you rely on the seized property for basic needs, bring this up.

Request a Hearing

Don’t let the state take your property without a fight! Request a prompt forfeiture hearing so you can present defenses and try to have your property returned.

At the hearing, come prepared with evidence and arguments. Raise any viable defenses that apply and closely scrutinize the prosecution’s case. Often the state has weak evidence or makes questionable legal arguments.

Contesting the forfeiture is critical, because many seizures go unchallenged. Insist on your right to be heard in court.

Negotiate a Settlement

If your defenses seem strong, the state may be open to a settlement so they avoid losing in court. This could lead to return of some of your property.

Propose a deal where you get back the most important items or a portion of the total value seized. Make clear you’re ready to fight in court if needed. If it seems like you have a good chance of winning, the prosecution may compromise.

File a Motion for Return of Property

In some cases, you can file a motion in court specifically asking for your property back. The motion argues the seizure violated your rights or lacked solid legal grounds.

To support the motion, lay out the facts surrounding the forfeiture and make legal arguments. For example, emphasize how you relied on the seized asset or how forfeiture creates an excessive fine.

The court may order return of your property without a full trial if your motion makes a strong case.

Sue for Damages

If law enforcement violated your rights and caused clear harm by taking your property, you may be able to file a civil rights lawsuit and seek monetary damages.

For example, you could sue if police failed to give notice of forfeiture or if the seizure caused financial loss. Proving misconduct and damages can lead to a settlement or court award.

Contact Elected Officials

If unfair asset forfeiture happened to you, contact your elected representatives and ask them to intervene. Explain how forfeiture affected you and see if officials are willing to contact law enforcement on your behalf.

Public officials can put pressure on police and prosecutors to justify their actions or return seized property in egregious cases. It helps bring attention to forfeiture abuse.

Seek Legal Help

Don’t go it alone. Get advice from a lawyer experienced in forfeiture cases. A legal expert can assess defenses, negotiate with prosecutors, and represent you in court.

Quality legal help gives you the best chance to successfully fight seizure of your property. Look for an attorney familiar with local forfeiture laws and procedures.

Fighting asset forfeiture can seem daunting, but people have had success using these defenses and strategies. With perseverance and a good lawyer, you may be able to defeat an unfair seizure and get your property back.

References

Learn more about fighting asset forfeiture:

Overview of State Forfeiture Laws

Asset Forfeiture FAQs

Asset Forfeiture Abuse

Strategies for Fighting Civil Asset Forfeiture

Institute for Justice Report on Forfeiture Abuse