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Civil Asset Forfeiture

Civil asset forfeiture, sometimes called civil seizure, is a highly controversial process developed at the height of the War on Drugs in the 1970s to supposedly enable the government to remove the assets and proceeds of crime relied upon by criminals and their associates. The practice allows law enforcement and prosecutors to seize cash and property suspected of being used in or derived from criminal activity.

An extraordinarily broad and powerful tool for law enforcement, asset forfeiture allows officials to take property without necessarily charging the owner with criminal wrongdoing, and then requires the owner to prove that he or she originally acquired the property legally.

The Equitable Sharing Program

Property can be seized under state or federal law, although a long-standing federal model called the Equitable Sharing Program provides an easy mechanism for states to process assets they seize through forfeiture, as well as incentives for states to seize assets under the program. While it is true that some of the proceeds from state or federal asset forfeiture go towards victim compensation, a significant portion of the liquidated assets’ value is also returned to the law enforcement agency that seized it.

Even more concerning is the fact that both federal law and the vast majority of state civil asset forfeiture laws use a standard of proof lower than the “beyond a reasonable doubt” standard required in prosecuting the criminal activity that is used to justify the government seizing the property. It denies people of both their due process and property rights to seize a person’s assets before they have been adjudged guilty in a court of law. Many of the government’s seizures go unchallenged, often because the property’s value is too small to justify the cost of a lawsuit, or because the owner is too intimidated and ill-informed of their rights to assert them.

For all of these reasons, civil asset forfeiture at both the state and federal level has been subject to intense scrutiny and public outcry over the years. After the terrorist attacks on September 11, 2001, however, there was an increased push for civil asset forfeiture in an effort to crack down on suspected threats to public safety. This saw even more individuals being denied of their property rights without due process. House and Senate leaders urged then-Attorney General Eric Holder to discontinue the Equitable Sharing Program because of the ways in which it blatantly encouraged states to engage in civil asset forfeiture with the promise of increased funding.

Limits on the Equitable Sharing Program

In 2015, then-Attorney General Holder signed an order that “prohibited” the Equitable Sharing Program. In reality, the prohibition allows for numerous exceptions that directly relate to public safety concerns, including firearms, ammunitions and explosives, as well as property associated with child pornography.

Not only are the public safety exceptions potentially broad, but Holder’s order did nothing to limit either 1) federal use of civil asset forfeiture under federal law or 2) state and local law enforcement’s use of forfeiture under state and local laws. The order only sought to—partially—curtail the federal government’s use of the Equitable Sharing Model in processing and returning the fruits of seized assets to local law enforcement.

North Carolina has been one of the few states to resist adopting its own forfeiture laws, so the threat of civil asset forfeiture in this state primarily stems from federal forfeiture laws. Our state constitution specifically requires that the proceeds of all forfeitures and penalties be 1) faithfully appropriated, and 2) be used exclusively for the maintenance of our free public schools. In addition, forfeiture under North Carolina law is only permitted when the owner of the property in question has been convicted of a crime, which requires proof beyond a reasonable doubt. However, North Carolina is still subject to federal forfeiture laws, which only require the government to prove that it is “more likely than not” that the property has criminal associations.

If your assets have been seized in through civil asset forfeiture because of suspected criminal activity, it is extremely important to speak with an attorney experienced in criminal defense as well as civil property law. Arnold & Smith, PLLC is an aggressive criminal defense and civil litigation firm in Charlotte, North Carolina. Our defense attorneys are well-versed in the collateral consequences such as civil asset forfeiture that criminal charges can have on a person’s life. Contact us today for an initial consultation with one of our criminal defense attorneys.