When Real Property Is The Defendant – Civil Asset Forfeiture

Civil asset forfeiture – property taken by law enforcement

“Forfeiture is the taking by the government, without compensating the owner, of property that was illegally used or obtained.”  CEB’s California Criminal Law Procedure and Practice §57.1.


(Updated February 20, 2019) United States Supreme Court rules on a civil asset forfeiture case – Timbs v. Indiana  More information including amicus briefs at https://www.scotusblog.com/case-files/cases/timbs-v-indiana/

Holding: The Eighth Amendment’s excessive fines clause is an incorporated protection applicable to the states under the 14th Amendment’s due process clause.


Civil asset forfeiture laws allow law enforcement agencies to seize and retain property – money, other financial instruments, real estate, cars, and boats – any property of value linked to criminal activity.  Civil forfeiture is in rem, meaning “against the thing.”   It is based on the legal fiction that the property itself is guilty of a crime and is punished by being confiscated.  After confiscation of the property, the owner has the burden of challenging the seizure in order to have the property returned.  When you come across a case title where one of the parties is a large amount of money or a beach house, there is a good chance that you have found a case involving civil asset forfeiture.  See People v. Property Listed in Exhibit One, 227 CA3d 1 (1991) and United States v. $8,221,877 in United States Currency, 330 F.3d 141 (2003).

The government is required to trace the seized property directly to a criminal offense that then gives rise to the forfeiture.  The government has possession of the property.  The owner must follow established legal procedure to challenge the seizure.  Depending on the assets, the cost of professional legal representation may be more than the value of the seized property.  This post is geared towards self-represented litigants who are trying to understand this area of law – why property was taken and how to proceed to attempt to get it back.  Civil asset forfeiture law is not simple.  The following is only a general guide to the topic.

Civil asset forfeiture – a legal special snowflake

A researcher of civil asset forfeiture law will find some interesting inconsistencies when beginning his or her research.  First, do not let the word “civil” lead you to civil law resources.  The best discussion of civil asset forfeiture will be found in criminal law titles.  There needs to be a nexus between the assets and criminal activity.  Second, check for publication dates of titles, as well as, any supplement or pocket parts for any current developments in the law.  The times, they are a’ changing under both state and federal law.  And, the states and federal governments are going in opposite direction in terms of policy.

Over the past years, activists have been lobbying for changes to the laws.  Last year the California legislature re-wrote the language of many of the code sections dealing with civil asset forfeiture.  (See below.)  More recently, Attorney General Jeff Sessions (who is still Attorney General as this post is being written) issued Department of Justice Order No. 3946-2017, “Federal Forfeiture of Property Seized by State and Local Law Enforcement Agencies” reversing the Obama Administration’s actions and liberalizing the policy for “federal adoption” of property seized by state and local law enforcement agencies.  Policy guidance can be seen here at asset_forfeiture_policy_directive_17-1.   A news article on the recent Sessions action is available here.

Under federal law, the government doesn’t need to convict, let alone charge, the property owner with any crime.  California requires a conviction but there are exceptions.  The conflict between federal and state law will take new meaning when the California cannabis industry moves into full production next year.

Looking at the issues involved in a claim

Claims for return of property will vary depending on the events surrounding the seizure.

  • Was the seizure by state or federal authorities?
  • Was the action a joint action by state and federal authorities?
  • What government entity seized the property?
  • What is the value of the property?
  • Is the property being retained as evidence in a criminal trial?
  • Is the claim a first party claim or a third party claim?
    • Third party claim – a person who claims that his or her property has been swept up as part of the action and the person is innocent of any possible criminal activity.  Examples – police raid a residence where a suspect stays with a domestic partner but the suspect is not the legal tenant of the property.  Large amounts of cash are found around the property.  (Whose money is it?)  Or a home owner whose adult child lives in a basement apartment in the home and is accused of using the room as a base for a drug operation.
  • Will the claim be heard as part of an administrative procedure or by the court?

California – some basics

California forfeiture provisions are modeled on federal law.  Consequently, California courts consider federal decisions on asset forfeiture to be persuasive authority. People v $497,590 U.S. Currency (1997) 58 CA4th 145, 151.   California Criminal Law Procedure and Practice §57.1.

Many civil forfeiture cases involve drug enforcement actions.  Many of the code provisions of interest to researchers will be found within the California Health & Safety Code.

Last fall, Senate Bill 443  was enacted, placing new limits on the civil asset forfeiture process. The Legislative Counsel’s Digest summarizes the intent of the bill:

  • This bill would require a prosecuting agency to seek or obtain a criminal conviction for the unlawful manufacture or cultivation of any controlled substance or its precursors prior to an entry of judgment for recovery of expenses of seizing, eradicating, destroying, or taking remedial action with respect to any controlled substance.
  • The bill would prohibit maintaining an action for recovery of expenses against a person who has been acquitted of the underlying criminal charges.
  • The bill would prohibit state or local law enforcement agencies from transferring seized property to a federal agency seeking adoption by the federal agency of the seized property – “federal adoption.”
  • The bill would further prohibit state or local agencies from receiving an equitable share from a federal agency of specified seized property if a conviction for the underlying offenses is not obtained, except as specified. The bill would require notices of a forfeiture action to contain additional details, such as the rights of an interested party at a forfeiture hearing.
  • The bill would change the burden of proof that a state or local law enforcement agency must meet to succeed in a forfeiture action with regards to cash or negotiable instruments of a value not less than $25,000, but not more than $40,000, from a clear and convincing standard to beyond a reasonable doubt.

You can read the article about the changes from The Sacramento Bee here.

California statutory provisions include:

Federal law – some basics

Under federal law, the government does not need to convict or charge the owner with any crime.  There needs to be sufficient evidence of criminal activity.  The standard used is whether there is “probable cause” that certain laws have been broken – the lowest standard of proof in the American judicial system.

Federal forfeiture law can be found in Title 18, Chapter 46, Sections 981 through 981.  You can browse the United States Code sections through the site here.

The US Department of Justice has a compilation of policies governing the Department of Justice Asset Forfeiture Program available in Asset Forfeiture Policy Manual

Federal administrative agencies may also take property.  Procedures may vary depending on the individual agency.  US Customs’ regulations discuss how to make a claim for items seized by the agency in a non-judicial civil forfeiture proceeding administrative procedure. ( 19 C.F.R. § 162.94 “Filing of a claim for seized property.” )

Federal adoption

An “adopted” forfeiture – or “adoption” for short – occurs when a state or local law enforcement agency seizes property under state law, without federal oversight or involvement, and requests that a federal agency take the seized asset into its custody and proceed to forfeit the asset under federal law without further court process.   Policy Manual : Asset Forfeiture Policy Manual (2016), Chap. 14, Sec. II.   The recent policy directive from the Attorney General mentioned above focuses on federal adoption.  This is restricted under California law.  See Section 11471.2 of the California Health and Safety Code.

Resources for research and templates

You can find a good, detailed discussion of civil asset forfeiture in CEB’s California Criminal Law Procedure and Practice, Chapter 57  “Asset Forfeiture.”  (Available in paper  [KFC 1155 C36] and on OnLAW also available at ACLL.)  The chapter provides an overview of this area of law, as well as:
  • details on the types of forfeiture proceedings – administrative and judicial
  • procedure to make a claim to the forfeited property
  • discussion on third party claims
For discussion of claims opposing forfeiture, see California Criminal Law Procedure and Practice §§57.13–57.17, 57.23–57.29.  A discussion of third party claims can be found at §57.32.
Other resources for a discussion on this topic include:
  • Witkin’s California Criminal Law on Westlaw at ACLL
  • 3 Witkin, Cal. Crim. Law 4th Punishment § 188 (2012), “Forfeiture of Property”
  • 1 Witkin, Cal. Crim. Law 4th Defenses § 120 (2012), “Civil Forfeiture”
  • The Rutter Group-California Criminal Procedure, Chapter 32, on Westlaw at ACLL.

Forms and templates for filing claims

CA Judicial Council optional form – Claim Opposing Forfeiture MC-200 is filed in the county where the assets were seized.

Claim Opposing Forfeiture” from Sacramento Public Law Library is a guide for filing a claim.  Some of the information is specific to Sacramento County.  This guide provides an example, with instructions, of a completed Claim Opposing Forfeiture MC-200.

Filing a claim in a federal forfeiture action

American Jurisprudence Pleading & Practice Forms has a number of templates for filing claims for property subject to a federal forfeiture case.  Including:

  • Petition in federal court—For return of seized vehicle  12A Am. Jur. Pl. & Pr. Forms Forfeitures and Penalties § 19
  • Claim—In federal forfeiture action—For restitution and right to defend—By owner of property  12A Am. Jur. Pl. & Pr. Forms Forfeitures and Penalties § 22
  • Claim—In federal forfeiture action—By attorney for owner of property   12A Am. Jur. Pl. & Pr. Forms Forfeitures and Penalties § 23

Available through Westlaw at ACLL.

Articles on this topic

The issue of civil asset forfeiture is far from decided in this country.  Many civil rights advocates are concerned about a policy that allows law enforcement agencies to fund their departments with assets seized as part of its enforcement actions.  On the opposing side, others are concerned by the loss of funding to support continued police activities.

The following articles discuss the issues brought forth by the policies involving civil asset forfeiture.

“Search and seizure” distinguished from civil asset forfeiture

Seizure of property by law enforcement agents may also include property, taken with or without a warrant, that will be used as evidence in a criminal trial.  The government is not attempting to lay claim to the property because the party gained ownership as the profits or economic benefit of a criminal enterprise.   Property is retained by the government but no ownership may be claimed or forfeiture will be claimed by separate action.  Property may be returned to the identified owner who was a victim of the crime once the trial is over.

California search and seizure procedure is codified in Penal Code §1538.5.  Section 1538.5 authorizes a defendant to move for suppression of any evidence, tangible or intangible, that is the product of an illegal search and seizure, or for the return of property that has been illegally seized.  California Criminal Law Procedure and Practice §16.2.

There are procedures to request the government to return of property seized as evidence.  The San Diego Public Law Library has a guide on drafting California motions for return of seized property depending on the individual situations.

Recent federal cases of interest

A June 2017 Ninth Circuit case involving the Fourth Amendment and civil asset forfeiture is United States of America v. Gorman and $167,070.00 in United States Currency  Nos.15-16600 15-17103 D.C. No.3:13-cv-00324-LRH-VPC.  The panel affirmed the district court’s order in a civil forfeiture action granting claimant’s motion to suppress evidence seized pursuant to a traffic stop; affirmed the award of attorneys’ fees; and held that the search of claimant’s vehicle following coordinated traffic stops violated the Constitution.

A major California federal civil asset forfeiture federal case in the news (reported on in New York Times article cited above) was recently filed in the United States District Court for the Central District of California. United States of America v. Certain Rights To and Interests In The Viceroy Hotel Group No. 17-cv-04438–DSF-PLA.  No claims have yet been filed for billions of dollars worth of property  (8/3/17).  The complaint (250 pages) and attachment for this  matter can be read here at viceroy 17_04438 complaint and here at in rem viceroy complaint attachment 17_04438-1.

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