# How is civil forfeiture a thing? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [July 21, 2017, 3:17pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804 "2017-07-21T15:17:03Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [July 21, 2017, 10:15pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/21 "2017-07-21T22:15:20Z")
It’s my understanding that it originated with Admiralty law. Maritime authorities were given the authority to confiscate money and goods on the spot because very often the perpetrators were based in another nation that would simply refuse to punish criminals based there. While not the best solution, the exigencies of the situation pretty much forced them to it unless they wanted smugglers and such to just be able to sail blithely by with nobody able to do much about it. Obviously that doesn’t apply to crimes committed \*within the borders \*of the US. On land it’s just greed; legalized theft. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 21, 2017, 10:23pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/22 "2017-07-21T22:23:24Z")
> [@k9bfriender](#): > > That’s the legal theory, and that’s great. > > The reality is that they take your stuff, and you have to prove that it didn’t come from a crime to get it back. Cite? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 21, 2017, 10:38pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/23 "2017-07-21T22:38:27Z")
> [@Procrustus](#): > > I don’t have time to research the current laws, but when I was doing this work the burden of proof was definitely on the claimant to prove the asset was unrelated to a crime. I believe that under the current federal law, the initial burden in on the government. State laws probably vary. > > Not just money, of course. Houses, cars, boats, etc. At present, I argue that no state, and certainly not the federal government, require that the property owner prove their case. Forfeiture is a civil proceeding, and the government bears the burden of proof by preponderance of the evidence. In _One Lot Emerald Cut Stones and One Ring v. United States_, 409 US 232 (1972), the claim is made that acquittal of the associated criminal charge should operate as collateral estoppel against the civil forfeiture. The Court observes: > [@](#): > > Moreover, the difference in the burden of proof in criminal and civil cases precludes application of the doctrine of collateral estoppel. The acquittal of the criminal charges may have only represented " `an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused.’ " Helvering v. Mitchell, 303 U. S. 391, 397 (1938). As to the issues raised, it does not constitute an **adjudication on the preponderance-of-the-evidence burden applicable in civil proceedings**. See Murphy v. United States, 272 U. S. 630 (1926); Stone v. United States, 167 U. S. 178 (1897). (emphasis mine) Any state law that placed the burden on the owner, and not the government, would run afoul of the Due Process Clause. I certainly welcome citation to the contrary. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 21, 2017, 10:42pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/24 "2017-07-21T22:42:22Z")
> [@k9bfriender](#): > > I was just saying that it was great that he was pointing out the legal theory, but in reality, that’s not even how it works. In what specific case has it not worked that way? ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [July 21, 2017, 10:47pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/25 "2017-07-21T22:47:57Z")
> [@Bricker](#): > > At present, I argue that no state, and certainly not the federal government, require that the property owner prove their case. Forfeiture is a civil proceeding, and the government bears the burden of proof by preponderance of the evidence. In _One Lot Emerald Cut Stones and One Ring v. United States_, 409 US 232 (1972), the claim is made that acquittal of the associated criminal charge should operate as collateral estoppel against the civil forfeiture. The Court observes: > > (emphasis mine) > > Any state law that placed the burden on the owner, and not the government, would run afoul of the Due Process Clause. I certainly welcome citation to the contrary. Here you go. This was the old law in Washington, but it changed only because the legislature amended to change the burden of proof, not for any constitutional reason. > [@](#): > > Thus, although we concede the divination of legislative intent is on occasion somewhat akin to the difficulties attendant in the elucidation of the Eleusinian mysteries, we believe the legislative intent here, relative to personal property used or intended to be used in illegal drug activities, is: (1) The personal property may be seized by a showing of probable cause that it had been used or was intended to be used in illegal drug activities. (2) At the subsequent forfeiture hearing the claimant then must prove by a preponderance of the evidence that the property was not used in an illegal drug activity or was used without the consent or knowledge of the owner. > Rozner v. City of Bellevue, 116 Wn.2d 342, 350, 804 P.2d 24, 29 (1991) > > With respect to the property itself, forfeiture is strictly a civil proceeding in rem, and the State may vary the standard of proof without denying due process. United States v. $250,000 in U.S. Currency, supra. Although the Supreme Court has never squarely addressed the issue, it has repeatedly implied Congress may allocate the burden of proof in civil forfeiture actions in any manner it sees fit. D. Smith, Prosecution and Defense of Forfeiture Cases ¶ 11.03, at 11–10 n. 1 (1990). > Rozner v. City of Bellevue, 116 Wn.2d 342, 351, 804 P.2d 24, 29 (1991) I don’t have the energy to look right now, but I’m quite sure the burden of proof in the federal system was the same until Rep. Hyde couldn’t stand it anymore. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [July 21, 2017, 10:58pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/26 "2017-07-21T22:58:50Z")
Fine. The property owner doesn’t have to “prove it”; the government has to “prove it”. But how does that work exactly? Bob is stopped with, say, $2,000 in cash; Bob says it’s to buy a used car from some guy he got in touch with via Craigslist; the government says it was money from selling drugs; or it’s money to buy drugs with; or at any rate, it’s bad, bad, naughty dirty money that needs to be given a good spanking. So, after the sheriff’s deputy seizes the money, Bob just goes down to the county courthouse and says “Hey, y’all took my money! Nobody charged me with nothing! You guys have to _prove_ that money was dirty!” and the Government Guys In Suits say “Oops, we can’t! Our bad! Here’s your money back; sorry for the inconvenience, sir!” Is that how it works? Or does Bob have to hire a lawyer to represent him in this matter? And if so…is this one of those Free Lawyers? Will the lawyers’ fees cost Bob more or less than the value of the money or other property that was seized? If Bob (and Bob’s Lawyer) win the case, does the local sheriff’s department have to pay Bob’s Lawyer’s fee, and give Bob his money back, with interest? (Not to mention help Bob find another suitable used car listing on Craigslist, because that other deal totally fell through after Bob never showed up at the Walmart parking lot with cash in hand to buy the damned car.) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 21, 2017, 11:00pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/27 "2017-07-21T23:00:11Z")
> [@Procrustus](#): > > Here you go. This was the old law in Washington, but it changed only because the legislature amended to change the burden of proof, not for any constitutional reason. > > I don’t have the energy to look right now, but I’m quite sure the burden of proof in the federal system was the same until Rep. Hyde couldn’t stand it anymore. OK - I strongly suspect that the scheme would not have survived much longer without toppling to a Supreme Court ruling, but, as you acknowledge, the law was changed and the current law places the burden of proof on the government. ---
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [July 21, 2017, 11:03pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/28 "2017-07-21T23:03:59Z")
> [@Bricker](#): > > That’s not an accurate description. > > The government must prove, by preponderance of the evidence, that the property is subject to forfeit. The property owner does not have to “prove that money wasn’t used in a crime to get it back.” Do you need a bridge perchance. I have a nice one. Cheap. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 21, 2017, 11:05pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/29 "2017-07-21T23:05:17Z")
> [@MEBuckner](#): > > Or does Bob have to hire a lawyer to represent him in this matter? And if so…is this one of those Free Lawyers? Will the lawyers’ fees cost Bob more or less than the value of the money or other property that was seized? If Bob (and Bob’s Lawyer) win the case, does the local sheriff’s department have to pay Bob’s Lawyer’s fee, and give Bob his money back, with interest? (Not to mention help Bob find another suitable used car listing on Craigslist, because that other deal totally fell through after Bob never showed up at the Walmart parking lot with cash in hand to buy the damned car.) I hope you agree that the Fourth Amendment prevents unreasonable search and seizure. But I will tell you now that if the issue were that Bob was arrested without probable cause, the local sheriff’s department does not have to pay Bob for the day he missed work, or help Bob find another suitable used car listing on Craigslist, because that other deal totally fell through after Bob never showed up at the Walmart parking lot on account of being arrested. So the questions you’re asking do not establish that Bob has to “prove” his own innocence any more than they establish Bob has to prove his ownership of the cash. In both cases, Bob is going before a neutral magistrate to force the government to prove its case. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 21, 2017, 11:06pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/30 "2017-07-21T23:06:22Z")
> [@Hari\_Seldon](#): > > Do you need a bridge perchance. I have a nice one. Cheap. My bridge comes festooned with citations to case law. What does your bridge have? ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [July 21, 2017, 11:11pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/31 "2017-07-21T23:11:03Z")
> [@Bricker](#): > > So the questions you’re asking do not establish that Bob has to “prove” his own innocence any more than they establish Bob has to prove his ownership of the cash. In both cases, Bob is going before a neutral magistrate to force the government to prove its case. Only if Bob is clever and educated: > [@](#): > > The hearing shall be before the chief law enforcement officer of the seizing agency or the chief law enforcement officer’s designee, except where the seizing agency is a state agency as defined in RCW 34.12.020(4), the hearing shall be before the chief law enforcement officer of the seizing agency or an administrative law judge appointed under chapter 34.12 RCW, except that any person asserting a claim or right may remove the matter to a court of competent jurisdiction. Removal of any matter involving personal property may only be accomplished according to the rules of civil procedure. The person seeking removal of the matter must serve process against the state, county, political subdivision, or municipality that operates the seizing agency, and any other party of interest, in accordance with RCW 4.28.080 or 4.92.020, within forty-five days after the person seeking removal has notified the seizing law enforcement agency of the person’s claim of ownership or right to possession RCW 69.50.505 ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [July 21, 2017, 11:19pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/32 "2017-07-21T23:19:47Z")
> [@Bricker](#): > > I hope you agree that the Fourth Amendment prevents unreasonable search and seizure. > > But I will tell you now that if the issue were that Bob was arrested without probable cause, the local sheriff’s department does not have to pay Bob for the day he missed work, or help Bob find another suitable used car listing on Craigslist, because that other deal totally fell through after Bob never showed up at the Walmart parking lot on account of being arrested. > > So the questions you’re asking do not establish that Bob has to “prove” his own innocence any more than they establish Bob has to prove his ownership of the cash. In both cases, Bob is going before a neutral magistrate to force the government to prove its case. That doesn’t actually answer any of my questions. When Bob “goes before a neutral magistrate to force the government to prove its case”, he doesn’t have to pay someone–quite possibly pay someone more than the value of the money or other property that was seized–he can just go to the courthouse all by himself? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 21, 2017, 11:25pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/33 "2017-07-21T23:25:41Z")
> [@MEBuckner](#): > > That doesn’t actually answer any of my questions. When Bob “goes before a neutral magistrate to force the government to prove its case”, he doesn’t have to pay someone–quite possibly pay someone more than the value of the money or other property that was seized–he can just go to the courthouse all by himself? He can. It might not be the wisest course of action, but he can. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [July 21, 2017, 11:29pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/34 "2017-07-21T23:29:09Z")
Well, **Bricker** , I take it that you believe that there’s no real problem with civil asset forfeiture laws as they currently exist and are practiced throughout the United States, and that these horror stories we read about in mainstream media are all just so much “fake news”, and that the politicians of the left, right, and center who regard these practices as abusive and wrong are just a bunch of soft-on-crime bleeding-hearts and overly excitable chuckleheads? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 21, 2017, 11:35pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/35 "2017-07-21T23:35:00Z")
> [@Procrustus](#): > > Only if Bob is clever and educated: > > RCW 69.50.505 Not sure how much cleverness or education is required. To end your quote: > [@RCW 69.50.505](#): > > The court to which the matter is to be removed shall be the district court when the aggregate value of personal property is within the jurisdictional limit set forth in RCW 3.66.020. A hearing before the seizing agency and any appeal therefrom shall be under Title 34 RCW.\*\* In all cases, the burden of proof is upon the law enforcement agency to establish, by a preponderance of the evidence, that the property is subject to forfeiture.\*\* (my emphasis) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 21, 2017, 11:37pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/36 "2017-07-21T23:37:25Z")
> [@MEBuckner](#): > > Well, **Bricker** , I take it that you believe that there’s no real problem with civil asset forfeiture laws as they currently exist and are practiced throughout the United States, and that these horror stories we read about in mainstream media are all just so much “fake news”, and that the politicians of the left, right, and center who regard these practices as abusive and wrong are just a bunch of soft-on-crime bleeding-hearts and overly excitable chuckleheads? No idea why you’d think that. What i think is: the burden of proof rests with the government doing the seizing, not the owner from whom the property is seized. You can tell that’s what I think, because that’s what I wrote. Nothing I wrote suggests a more general approval of the process, or an opinion on the abusiveness of in rem forfeitures. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [July 21, 2017, 11:39pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/37 "2017-07-21T23:39:23Z")
> [@Bricker](#): > > Nothing I wrote suggests a more general approval of the process, or an opinion on their abusiveness. Do you _have_ any opinions on the process, then? ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [July 21, 2017, 11:54pm UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/38 "2017-07-21T23:54:12Z")
> [@Bricker](#): > > I hope you agree that the Fourth Amendment prevents unreasonable search and seizure. Bull and shit. The 4th does nothing of the sort and you know it. ---
**Author:** ![mikecurtis](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mikecurtis/32/3284_2.png) [@mikecurtis](https://boards.straightdope.com/u/mikecurtis)\ **Post date:** [July 22, 2017, 12:06am UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/39 "2017-07-22T00:06:17Z")
the problem with civil forfeiture does not lay with the burden of proof. The problem is that the onus is on the citizen to act to get it back. In IL after assets are seized the court has 14 days to determine if there was probable cause. Once the decision is made they have 45 days to inform you - via registered mail if they know your address or by public notice if they don’t. Then you the citizen, have 45 days to respond to the court. If you fail to respond in that time YOU LOSE THE ASSETS; whether there was probable cause or not. If you do respond you then have a lenghty, costly, and complex proceedure to endure. If the court decides there was no probable cause and you file timely, you still have to “prove” that the assests belong to you. It’s stacked against the citizen at every turn. the ACLU in IL has this to say about it > [@](#): > > Once the police seize your property, you won’t get it back unless you successfully oppose the government in court. Unlike a criminal defendant, you are not provided with a lawyer. In fact, you may be required to pay 10% of the value of your property up front just for the privilege of “your day in court.” If your case goes to trial, the playing field is far from level, because the law gives the government every advantage in the courtroom against the property owner. Not surprisingly, many people in this situation simply give up and lose their property rather than spending additional resources to fight what is so often a losing battle. It’s fucked up a dozen different ways! mc ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [July 22, 2017, 12:20am UTC](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804/40 "2017-07-22T00:20:24Z")
Why am I asking all these damned questions anyway? What the hell is wrong with me? Why did I wander into this quagmire? > [@mikecurtis](#): > > the problem with civil forfeiture does not lay with the burden of proof. The problem is that the onus is on the citizen to act to get it back. In IL after assets are seized the court has 14 days to determine if there was probable cause. Once the decision is made they have 45 days to inform you - via registered mail if they know your address or by public notice if they don’t. Then you the citizen, have 45 days to respond to the court. If you fail to respond in that time YOU LOSE THE ASSETS; whether there was probable cause or not. If you do respond you then have a lenghty, costly, and complex proceedure to endure. If the court decides there was no probable cause and you file timely, you still have to “prove” that the assests belong to you. It’s stacked against the citizen at every turn. > > the ACLU in IL has this to say about it > > > [@](#): > > > > Once the police seize your property, you won’t get it back unless you successfully oppose the government in court. Unlike a criminal defendant, you are not provided with a lawyer. In fact, you may be required to pay 10% of the value of your property up front just for the privilege of “your day in court.” If your case goes to trial, the playing field is far from level, because the law gives the government every advantage in the courtroom against the property owner. Not surprisingly, many people in this situation simply give up and lose their property rather than spending additional resources to fight what is so often a losing battle. > > It’s fucked up a dozen different ways! > > mc Yeah. What **mikecurtis** and the ACLU of Illinois said. [Previous page](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804.md?page=1) [Next page](https://boards.straightdope.com/t/how-is-civil-forfeiture-a-thing/791804.md?page=3)