The police are tasked with upholding the law. State and federal laws give them numerous methods to carry out their duties, and some generate controversy. Asset forfeiture is a tool that many contend is over-used; others say it is essential to remove the profits from illegal activity. But what exactly is asset forfeiture?
Asset forfeiture is when local, state, or federal authorities seize and then sell property that was used or was intended to be used to carry out criminal activity. They then use the funds from the sale of seized property for law enforcement purposes. For instance, if a car is used to carry drugs for sale or distribution, the police may attempt to seize and forfeit the assets –in this case, the car – and then use the money for law enforcement. This practice supposedly is designed to put a serious or total dent in criminal organizations, which still would operate if only a few members were convicted or imprisoned. Thus, asset forfeiture enables authorities to seize and take the property itself used in a criminal matter and without necessarily charging the owner.
Asset forfeiture targets and takes down drug traffickers, money launderers, and others who participate, plan, or profit from crimes. Ironically, after seizing the assets or money, law enforcement uses the seized assets against other suspected criminals.
Asset forfeiture also is a civil means for police to create revenue, and this practice often affects the public. Ironically, as a result, initially you may be powerless to prevent authorities from seizing your property and assets, even though you are innocent of the crime in which your property was allegedly used.
Moreover, even if you are innocent, the State may still not return your property to you. Therefore, until you prove that you did not participate in the alleged crime, that you did not know your property was being used in said crime, and that you took reasonable actions to end the use of your property for criminal activity, your property is presumed to have been used to commit crimes. While you may prove all that, authorities may hold your property, and your chances of actually having your property returned to you often are slim.
Furthermore, you can fall to victim to asset forfeiture in all fifty states. Thus, even though there are state statutes that limit the practice in the respective states, federal authorities still can seize and forfeit your property and state and local authorities may partner with federal authorities and proceed under federal law and use a method called “equitable sharing.”
Moreover, not everyone gets his or her day in court when asset forfeiture is involved. In fact, most asset forfeiture cases conclude during the administrative process, and the seized property is forfeited if the owner does not show up to challenge the forfeiture after a particular period of time. Occasionally, courts dismiss the forfeiture proceedings because police have coerced owners of seized property into relinquish their ownership of the property in order to avoid usually false criminal charges or the owner has a valid defense. Nevertheless, even if you decide to challenge the forfeiture in court, you likely will encounter a battle.
There are defenses against asset forfeiture, however. For criminal asset forfeiture, the first defense tactic you can use is defense against your conviction; if you are convicted of a crime, you can present evidence and facts that prove your property was not involved in the criminal activity for which it was forfeited and you were convicted. For civil asset forfeiture, the innocence of the owner of the forfeited property typically does not qualify as a defense against forfeiture, and the view of the defenses against forfeiture that do count differs from court to court. Some courts have objective standards they use to determine whether the owner of the seized property should simply have knowledge that his or her property was used in the crime or produce proof that he or she has actual knowledge thereof. Of course, you could assert that no actual criminal activity took place, that police had no probable cause to seize and forfeit your property, or that your property is not connected to the crime in order to be forfeited in the first place.
Some critics of asset forfeiture argue that it turns police, often drug task force units, into robbers with badges and that too often the police pick on people who are unlikely to challenge their actions in taking property. Critics contend that drug forfeiture laws give law enforcement an incentive to cross the line, burden the innocent or those who commit minor drug crimes, and use the funds to buy military-style equipment and high-powered eavesdropping and snooping devices, and that citizens are often powerless to contest their acts. To challenge asset forfeiture is time-consuming, and without an experienced lawyer to fight for the property owner, law enforcement has the upper hand in court.
If your home, car, money, or other property is forfeited in connection to a drug offense or another type of crime, you have rights and legal remedies. If you have questions about federal and state forfeiture laws, talk to a lawyer. For more information and to have questions answered, contact Nashville Attorney Perry A. Craft.