Imagine going to the bank one day to withdraw funds and the teller informs you that your account has been frozen by the government and you cannot access any of your money. How about walking outside to get in your car and it’s gone? Your first thought is that none of that happens in the United States, right? Wrong.
Both state and federal civil forfeiture laws potentially allow the government to take your assets –including cash, vehicles and even your home — with little more than an allegation that the asset was involved in criminal activity. Although there is a growing movement to reform the civil forfeiture system in the U.S., those reforms may come too late if you find yourself the target of forfeiture now.
Attorney Michael J. Wynne understands the complex civil forfeiture laws and can help you expertly navigate the judicial system if your assets are at risk.
Unfortunately, most people learn about the concept of civil forfeiture the hard way — by having assets confiscated by the government in a forfeiture action. Although the process of civil asset forfeiture is often a new concept to the target of the forfeiture action, the practice has actually been around for centuries. The basic concept behind forfeiture is simple: The government effectively claims that assets you own must be forfeit, or turned over, to the government because they’re linked to criminal activity. Originally, the government’s right to seize assets and profits was aimed at the seizure of vessels, contraband and profits and was justified as a way to deter piracy and other large scale criminal operations.
Today, civil forfeiture laws are significantly more expansive in nature with regard to what the government can confiscate; however, the justification for forfeiture remains essentially the same. The ability to seize assets used to commit crimes or that were purchased with the proceeds of criminal activities is an invaluable tool in the government’s crime-fighting arsenal. It is also a profitable enterprise for law enforcement agencies.
If the analysis of civil asset forfeiture stopped at the government’s stated rationale, it might not be as controversial as it is. The problems, however, with civil asset forfeiture are numerous and widespread.
Civil forfeiture is just that — a civil action that is not part of a criminal prosecution and which can be brought by a state or federal government. The assets that are seized as part of a successful forfeiture action are typically kept by the law enforcement agency involved in the forfeiture. That alone should be cause for alarm as it provides a strong incentive for law enforcement officers to identify as many assets as possible for forfeiture.
An even bigger problem, however, with civil forfeiture is something most people are shocked to learn. You do not have to be convicted of a crime to be the target of civil asset forfeiture. In fact, you don’t even have to be charged with a crime to lose your assets to forfeiture! The government must only prove that the asset was involved in a crime or was purchased with the proceeds of criminal activity for the owner to lose the asset permanently.
Making matters worse is the low standard of proof required in civil forfeiture cases. Although forfeiture laws will vary by jurisdiction, in almost all jurisdictions the standard of proof required is less than the very high “beyond a reasonable doubt” standard used in criminal prosecutions. Instead, the government typically only has to prove beyond a preponderance of the evidence, commonly explained as “more likely than not,” that the asset is linked to a crime.
Yet another problem with civil asset forfeiture laws can be found in the program known as “equitable sharing.” In a nutshell, this program allows state law enforcement agencies to team up with the federal government in a forfeiture case. Not only does this result in a sharing of the profits, providing another incentive to forfeit assets (and potential motivation for civil asset forfeiture abuse), but it also offers a way around state forfeiture laws when those laws are less favorable to the government. The state agency simply invokes the equitable sharing rules and the entire forfeiture action moves to the federal court system where they are more likely to prevail. Texas, in fact, aggressively and frequently makes use of the equitable sharing program.
In practical terms, all of these problems with civil forfeiture laws in the US mean that you could lose your life savings, car or house without even being charged with a criminal offense.
The target of a civil asset forfeiture does have the right to fight it; however, doing so is often extremely costly, in both time and money. Furthermore, the procedural rules are complex and time-sensitive. If you fail to respond in a timely manner or if your response does not follow the proper procedures, you can lose your assets before you even have the opportunity to provide any type of substantive defense.
If you do manage to file a proper and timely response, you will find that the burden is on you to prove the “innocent owner” defense.
The good news is that both advocacy groups and the public at large are finally starting to aggressively attack current civil asset forfeiture laws in the United States. According to the Institute for Justice, since 2014 32 states plus the District of Columbia have passed reforms, which may help reduce the potential for civil asset forfeiture abuse.
Three states – North Carolina, New Mexico and Nebraska – have completely abolished their civil forfeiture laws and now rely entirely on existing criminal laws to forfeit assets. Another 15 states now require a criminal conviction before most assets can be subject to civil forfeiture.
Furthermore, Justice Clarence Thomas, a Supreme Court Justice, even openly criticized the nation’s civil asset forfeiture practices in an opinion he wrote in 2017.
If the government is going after your assets, they are counting on you to not put up a fight. Don’t make it that easy for them. Although the system is flawed, you do have rights and it is possible to prevent a forfeiture. The first hurdle, however, is to respond within the allowable time frame. Failing to do so can effectively waive your right to fight the forfeiture altogether.
Consult with attorney Michael J. Wynne as soon as possible to discuss your legal options. As an Assistant U.S. Attorney in the Southern District of Texas for over a decade, he gained invaluable experience and insight into how the federal government operates. Now he is using that knowledge and skill to fight for the rights of people just like you. He has extensive experience fighting civil asset forfeiture for individuals in the US or abroad.
Contact us immediately by calling 713-942-2255 to schedule an initial consultation and begin making your case today.
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