Where Civil Asset Forfeiture and Seizure Laws Fail

February 25, 2016

Where Civil Asset Forfeiture and Seizure Laws Fail

An investigation by Washington Post revealed that over 245 seizures of cash have occurred statewide without a warrant or filing any charges. Those seizures alone generated an estimated $29 million for Oklahoma law enforcement agencies.

Civil asset forfeiture is a process where the government, state or federal, may seize any property or money by claiming it may be connected to criminal activity in some way. The state may even pass your seized assets to the federal government by way of equitable sharing: this allows your property to fall under federal forfeiture and seizure laws instead of just the state laws, making it more difficult to have property returned to you.

The burden of proof in these proceedings is much lower than in criminal proceedings: Oklahoma only requires prosecutors to show a connection between criminal activity and the property by a preponderance of the evidence—which means more likely than not. Since the only thing in civil forfeiture that is required is this “reasonable proof” of criminal activity, it becomes fairly easy for the state to seize your assets.

The burden of proving innocence typically falls to the claimant, who must then prove a legitimate claim to the seized asset. Although the Supreme Court of the U.S. has ruled that the “innocent owner” defense isn’t constitutionally required, it is possible to utilize that defense by first proving (1) that you were not involved in any criminal activity and (2) that you either had no knowledge that your property was being used to facilitate a crime or that you took every step possible to terminate such use.

When assets are seized in these cases, even if the claimant successfully proves that there was no knowledge of criminal activity, the state is not required to return seized property. Likewise, no conviction, warrant or charge is required for the seizure of assets. This practice has become understandably controversial, due to the fact that many law enforcement agencies benefit from the proceeds of seized assets. In Oklahoma alone, the average amount from seized asset proceedings from 2000 to 2007 totaled roughly $5.5 million.

Why Forfeiture Laws Exist and How They Work

Seizure and forfeiture laws were designed to target organized crime rings, especially racketeering and drug rings. Many criminal laws contain their own forfeiture provisions, although that only comes into affect following a criminal conviction. While criminal forfeiture laws encompass more property, they have a higher burden of proof upon the government than civil forfeiture laws.

The Money Laundering Act of 1986 makes it illegal to engage in financial transactions using funds that are from “specified unlawful activities” with the intention of concealing the origin of the funds or evading state or federal currency reporting tactics. The “specific unlawful activities” includes a myriad of crimes, from drug manufacturing to violent crimes and even fraud. The currency reporting tactics referred to in the Act allow financial institutions to report any transactions in cash or currency over $10,000 to be reported to the federal government.

When the government believes that funds or property falls into these prohibited categories, authorities may seize it immediately and obtain a civil forfeiture, even if the funds or property is within the care of a third party. When this occurs with the federal government, authorities must also notify the owners of the seized assets within 60 days of the seizure.

At any time following the seizure, the property owner, or an authorized party wishing to challenge the seizure may file a claim with the appropriate agency. Following that, the government has 90 days to respond with a civil forfeiture proceeding in court, or to release the seized assets.

Numerous defenses exist to combat civil asset forfeiture cases, with the most basic being to challenge the government’s claims. If the government cannot show a preponderance of evidence that the currency or property was used in an unlawful activity, or that the owner was purposefully attempting to avoid financial reporting tactics, then the forfeiture claim will fail.

How to Fight—and Win

Although Oklahoma is currently seeking forfeiture law reform, it will be a slow process to change legislation. If you are currently facing a civil asset forfeiture proceeding, do not hesitate to contact us.

Forfeiture law, both state and federal, can be a difficult case for any seasoned lawyer. Due to the burden of proof being placed upon the claimant, it can be burdensome to combat the government when it may be your house, car, or entire savings that has been seized. Additionally, a forfeiture challenge must be handled delicately to avoid further damaging the claimant’s defense, especially when criminal charges may be involved. It is essential, then, to hire an experienced attorney to respond immediately to a forfeiture notice, to seek both the return of property and to guard against future forfeiture issues. Contact us now for a consult about your case.