Our previous post in this series discussed the history of the use of civil forfeiture in the American criminal justice system. In this blog post we discuss the procedure and arguments used to fight a civil forfeiture case. There are a number of common pitfalls that people fall into when they are just trying to get their property back.
Fighting a forfeiture action is a beat-the-clock situation. Many people who would be able to recover thousands of dollars or more in forfeited cash simply do not file their objections in time and then are precluded by law from objecting. The federal law authorizing civil asset forfeiture drastically limits the time allowed to object to forfeitures. See 18 U.S.C. 983(a)(2). It allows agencies like the DEA to give you only 35 days to file a claim so that a judge can determine whether you are entitled to the money or property seized. The alternative method is to make a request with the agency itself to return the property. In that case, the agency may deny your claim and keep your money if you fail to file a petition with them in 30 days. As you can imagine, asking the agency to voluntarily give the property back is an uphill battle.
The forfeiture laws allow a person to argue that they would suffer a hardship if their property isn’t returned. See 18 U.S.C. 983(f). The statute authorizing this defense to forfeiture lists a number of grounds where the court would find hardship. The person seeking to get the property back must establish a number of elements. They must assert that they own the property, that they have sufficient ties to the community that would ensure that the property isn’t going anywhere before trial, that if the government kept the property until trial it would cause a hardship to the claimant, and that the benefits of returning the property prior to trial outweigh the risk of it being hidden by the petitioner. In no event can property that is deemed contraband or likely to be used in criminal activity be returned to the claimant prior to trial.
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.