Civil Asset Forfeiture

Civil asset forfeiture is a hotly contested process that was born during the peak of the country’s War on Drugs in the 1970s. Often referred to as civil seizure, civil asset forfeiture grants the government the authority to remove the assets and proceeds of crime relied upon by criminals and associates. Law enforcement, as well as prosecutors, have the authority to seize cash and property that is suspected of being used in, or derived from, criminal activities. Civil asset forfeiture is a legal tool that grants broad power to law enforcement - so much so that officials need not necessarily charge to owner of the seized assets with criminal wrongdoing. Once the assets are seized, the owner bears the burden of proving that he or she originally acquired the seized property through legal means.

Both federal and state law allows for property to be taken under civil asset forfeiture. That being said, a long-standing federal model known as the Equitable Sharing Program (“ESP”) gives states an easy legal mechanism to process assets seized through civil forfeiture. The ESP also provides incentives for states to seize assets under its program.

Although some of the proceeds from civil asset forfeiture by the federal or a state government are used for victims of crimes, a large portion of the liquidated assets’ value is returned to the specific law enforcement agency that seized the assets in the first place. Moreover, virtually all state and federal civil asset forfeiture laws do not require proof beyond a reasonable doubt to justify the government seizure. In order to successfully prosecute a person accused of a crime, however, the government must prove beyond a reasonable doubt that he or she is guilty. Critics of civil asset forfeiture argue the legal mechanism denies individuals of due process and property rights. This is because the assets may be seized before the owner has been found guilty in a court of law of a criminal charge. Owners whose property has been seized by the government often do not challenge the civil asset forfeiture because either the value of the subject property is too low to justify the expense of a lawsuit or, more often, the owner does not know his or her rights to assert them and/or he or she is too intimidated to go after the property.

Not surprisingly, state and federal civil asset forfeiture has had intense scrutiny and outcry from the public over the past several years.

In 2015, the federal government issued an order signed by then-Attorney General Eric Holder that prohibited ESP. Nonetheless, the order allowed for several exceptions to the prohibition of the ESP on the basis of public safety concerns. These included, among others, civil asset forfeiture involving property associated with child pornography, firearms, ammunitions and explosives, and other property that caused public safety concerns. Of note, the public safety exception to the ESP prohibition is broad and the order does not limit federal use of civil asset forfeiture under the authority of federal law nor state and local law enforcement officials’ use of civil asset forfeiture under the authority of state and local law. Instead, the order sought to partially stop the federal government’s use of the ESP in processing and returning the fruits of seized assets to local law enforcement.

Unlike many states across the nation, North Carolina has resisted adopting its own local forfeiture laws. Therefore, civil asset forfeiture in the state will occur under the authority of federal forfeiture laws. In fact, North Carolina’s state constitution expressly mandates that proceeds of all forfeitures and penalties be faithfully appropriated and used specifically for the maintenance of the state’s free public schools. Moreover, North Carolina law only allows forfeiture of assets when the owner of the subject property has been convicted of a crime. As discussed earlier, conviction of a crime requires the government prove guilt beyond a reasonable doubt. Nevertheless, the state of North Carolina is still subject to federal forfeiture laws. Federal forfeiture laws simply require proof that is more likely than not that the property in question has criminal associations attached to it.

If your assets have been seized - or you know someone who has had assets seized - in Monroe Union County through civil forfeiture due to suspicion of involvement in criminal activity, you must speak with an experienced criminal defense attorney right away. Arnold & Smith, PLLC is an aggressive law firm whose attorneys have years of experience in criminal defense and civil property litigation. Contact us today for your initial case evaluation with one of our experienced criminal defense attorneys.