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Civil Asset Forfeiture Part 1: The Historical Context

This is the first post in a three-part series on civil forfeiture; view Part 2 or Part 3.

In this post we talk about the history of civil forfeiture and how it is being abused by law enforcement today. In the next post we will discuss how the Eichner Law Firm can make sure that you preserve your right to object to civil forfeitures.

Civil forfeiture is one of the most shocking and devastating tools at the disposal of state and federal prosecutors. Essentially, civil forfeiture laws allow law enforcement agencies to take property from a citizen that the officer believes to be contraband of a crime, even if no charges are ever filed against the person. In fact, property can be seized even if it is owned by a completely innocent person. Often times, officers seize large quantities of cash without any other indication that the money has been used in illegal activities. Shockingly, if you are driving on the highway and an officer sees that you have a bag full of cash, he can take it on the spot without charging you with a crime.

The historical roots of civil forfeiture in America go back farther than the concept of income tax. Prior to ratification of the Eighteenth Amendment, which authorizes a federal income tax, one of the largest sources of revenue for the United States Government was through civil forfeiture. Civil forfeiture is predicated on a legal fiction. A legal fiction is a myth, or a noble lie, that justifies a certain law and that we all just accept. The particular legal fiction that supported early civil asset forfeiture was that the wrongdoer at issue in a civil forfeiture case was the property itself used to commit a criminal offense. Therefore, even if the property was owned by an innocent person who had no knowledge of the criminal act, the property could nonetheless be seized by the government if it was ever used to commit a crime. The argument is that the property offended the rule of law, and irrespective of who owns it, it must be seized.

Modern civil forfeiture has somewhat abandoned this view by providing some procedures for legitimate owners of seized property to contest the forfeiture of their property and assert their rights. However, there are still remnants of the ancient legal fiction inherent in the system. For instance, claims to recover forfeited property name the property itself as a party. The modern approach to civil forfeiture however has taken the process to unprecedented levels.

Many states historically have not had statutes allowing civil asset forfeiture. The federal government however has been doing it since the very beginning. However, as states have made their way into the game, the modern trend is that Feds and local law enforcement agencies partner together to seize property. Basically, the local cops conduct the seizure and federal agencies such as the DEA handle the legal aspect of the forfeiture. The result is that both the federal agencies and local law enforcement each get a huge cut of the proceeds. This is called the “equitable sharing” program.

Law enforcement agencies have become dependent on seizing money and property under the civil forfeiture laws. It has become a substantial portion of the budget for local law enforcement agencies across the nation. In Colorado, law enforcement agencies have relied on $24 million in proceeds from civil forfeiture for their budgets since 2008. Across the country, police agencies have spent $2.5 billion in proceeds from cash and property seized under federal civil forfeiture laws.

The Eichner Law Firm handles civil forfeiture cases with success, litigating for our clients to get their money and property back from the government. In the next blog post in this series, we will dive into why so many people lose property, even though they could have fought and won.

View Part 2 or Part 3...

Disclaimer: The information in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog should be construed as legal advice from The Eichner Law Firm or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this blog should act or refrain from acting on the basis of any information included in, or accessible through, this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.