By Steven L. Kessler, Esq.

Asset forfeiture is a legal term you may have heard.  What it means is, the government can seize assets (houses, cars, money, actually just about anything it wants) if it can demonstrate these assets were acquired as the result of a criminal act, or used in the commission of a crime.

Here are some common-place examples to illustrate what I mean:

• The getaway car used in a bank robbery
• The house that has become a “crack den”
• An airplane used to transport drugs

But did you know that it applies to “little things” too?  And that it can easily be blown WAY out of proportion?

Here’s something that should scare you.

Let’s say Lady Luck smiles on you.  You win some cash at a poker game.  Your anniversary is coming up, so you decide to use the money to buy something really nice for your spouse – let’s say, a widescreen TV.  Something completely unforeseen happens, and next thing you know, the police come to your house for something innocuous, like to warn you about a string of robberies in your neighborhood and ask if you’ve seen anyone suspicious on your street lately.

The officer then looks over, and asks all innocent-like, “Say, where did you get that TV?  Bet that set you back a couple paychecks!”

You sheepishly say, “Well, you know Officer, I hit a lucky streak at poker, and I thought I’d do something really nice for our 20-year anniversary.  You like it?”

The officer’s smile vanishes.  “Did you report those earnings to the IRS?” he now asks.

You go silent.

The officer reaches for his radio and starts mumbling some codes into the receiver.  You don’t know what the codes mean, but you know it’s about you, and it’s NOT GOOD.

According to the laws on asset forfeiture, the state can now seize your house, and everything inside it, because you are now suspected of failing to report earnings to the IRS.  You haven’t even seen a courtroom yet, but they’re taking your hard-earned possessions and your home TODAY.

Why?  Because the officer says the house was being used to store goods acquired through money you shouldn’t have had.

Okay, maybe that’s an extreme example.

But I’m telling you, we’re on a slippery slope headed in that very direction.  And the laws that are already on the books make it possible TODAY.

In asset forfeiture law, there are two types of cases – criminal and civil.  

Criminal forfeiture is usually carried out through a sentence imposed after a person is convicted of a crime, and is typically part of the punishment (along with the jail sentence and fines).  Civil forfeiture, in contrast, does not require the person to be convicted of a crime, and the burden of proof is MUCH lower – in practice, the standard might as well be “guilty unless somehow you’re lucky enough to convince a judge you wouldn’t in your wildest dreams even joke about doing anything bad.”

The government – not you – decides where it’s a civil or a criminal case. Since civil cases allow the government to seize property immediately, make you fight to get it back (it’s not uncommon for the case to last three years and run up tens of thousands of dollars in legal fees), and effectively shift the burden of proof onto you, of course they’ll almost always opt for a civil case.

Scared yet????

If not, then consider these facts about asset forfeiture…

Frightening Fact #1: In Civil Asset Forfeiture Cases, YOU Are Not Even The Defendant!

If you should find your assets seized by the government, you will not even be a party in the resulting court case – you will be considered a “third party claimant.”  Court cases involving civil asset forfeiture often have names such as U.S. v. Eight Thousand Eight Hundred and Fifty Dollars or U.S. v. One 1987 Jeep Wrangler.  The asset – not you – is actually on trial.

If that in itself not scary enough, consider the following.

Frightening Fact #2: They Really Don’t Have To Prove Much!

Once the government seizes your property, the prosecutors only have to convince the judge (and usually just a judge, since in many states there is no right to a jury trial!) that the seized property is somehow connected to a crime.  Meaning, the property was used to commit a criminal act (for example, the “getaway car” in a bank robbery, or the building that became the “crack house”) or that it was purchased with money gained through an illegal act (for example, that TV you paid for with your illegal poker winnings).

People may have rights in a court of law, but THINGS do not.  And the THINGS are on trial.

Frightening Fact #3: Constitutional Protections Do NOT APPLY!

Let me be clear: the burden of proof is “guilty until proven innocent.”  This means, if your teenager gets caught with a little marijuana in his bedroom (not exactly an unusual thing, you know) and your house is seized through civil asset forfeiture as a result, you actually have to prove that you had no way of knowing he was stashing the weed in his dresser drawer.

Furthermore, if the drugs are in the drawer next to the money he’s been saving up for his new car, you might actually have to prove he did NOT earn the money by selling the drugs, or that he was planning to use the money to buy more drugs.

Frightening Fact #4: There Doesn’t Even Have To Be A Crime!

You can have your assets seized if the government can convince a judge that they were going to be used to commit a FUTURE illegal act.

In The Forfeiture Racket, Radley Barko describes the case of a college student who was pulled over and found to have $17,500 in cash on him, part of a personal injury settlement he had recently received.  The student claimed he was taking the money to his aunt so she could buy a new car.  An attorney representing the state made the argument that because a K-9 who sniffed his car found indicators of drugs (even though no drugs were found), there was reason to believe the student could have planned to use the money as part of a future drug transaction!  Note that long before this unbelievable claim was made, the government had already seized the money AND the car.

Frightening Fact #5: The Money Isn’t Even Serving The Community!

States that enforce asset forfeiture laws usually earmark the money for schools, community improvements, or other worthy causes.  However, under the principle of “federal adoption”, local police departments can turn seized money to Federal agencies such as the DEA, which under Federal law can keep up to 20%.  The other 80% goes back to that local police department.  What happened to turning bad money into good works for the community?

Not only that, but states often hire private attorneys to represent them in court, and these private attorneys get to keep a portion of the assets.  Hello?  Constitution, anyone?

So What Can You Do?

It’s pretty likely what you’ve just read has you on the edge of your seat, and it should.  But we’re here to help.

If you have some concerns that you need to get addressed right now, let me know.  Just click here and we’ll set a time to talk for a few minutes.  We’ll go through your concern and figure out the best way we can help.

Especially if something like this is happening to you right now, or you have reason to fear it might happen soon.

I look forward to our conversation!