It is fairly common to get a new criminal case, and in the weeks that follow for a client to get served with a lawsuit seeking to seize money, cars, bank accounts, and other property that was taken by police in the course of an arrest. This is called a civil forfeiture, and it is a legal way for the police to steal from people who have been arrested.
Civil forfeitures were originally intended to be used to take the clear proceeds of a crime. The law was based on the federal RICCO statute, and was originally directed towards large scale drug dealers who made huge amounts of money on selling drugs. However, as police departments and municipalities became starved for funds, prosecutors began to direct the law towards everyday offenses. Busted with pot? All of the money in your wallet must have been from drug sales and must be seized. Drinking and driving? Your car is the proceed of a crime and must be taken. In some cases, the police have even sought to seize property and homes when allegedly used to sell drugs. What happens to assets seized by the police? Cash is deposited into an account for state educational use, with a portion of the proceeds given to the law enforcement agency that seized the property. Physical assets like cars or electronics are sold at Sheriff’s auction, with the funds divided between the education fund and local law enforcement.
Civil forfeitures differ from criminal cases in several respects. First, a forfeiture is not a criminal offense, and as such, the State is not required to prove a link between assets and an alleged crime beyond a reasonable doubt. Instead, asset forfeitures are subject to clear and convincing evidence, referred to by lawyers as a the intermediate level of proof. So even if a client is found not guilty of a criminal offense, the government can still take his or her assets if they are able to prove the link between assets and suspected crimes at a lower level of proof.
Second, a civil forfeiture is subject to civil rules. Which means that a client needs to be very aware of the fact that failing to act immediately can result in a default judgment. When someone is served with a civil forfeiture action, he or she has 45 days to file an answer. An answer is just a formal denial of an allegation, and assertion of any defenses, such as the money came from a legitimate source. If a client doesn’t file an answer in a timely fashion, then the judge can default the entire complaint and the State is allowed to keep the assets they are trying to seize. Of course, filing an answer has its own hazards, particularly if a client is asked to admit to some, or a lesser degree, of criminal conduct as part of an offense. That’s why nobody with a corresponding criminal case should be filing an answer without an attorney.
Third, civil asset forfeitures are subject to civil discovery. This means that both parties, including the State of Wisconsin, can use procedures like interrogatories that require sworn written answers to questions, and depositions, which are under oath fishing expeditions. If you think that this sounds like a bad idea when a client is charged with a criminal offense, I couldn’t agree more. Thankfully, the law allows these actions to be put on ice until a corresponding criminal case is over, which is something most competent criminal attorneys will insist on.
Fourth, since civil forfeitures are not criminal cases, nobody subject to one is entitled by law to a lawyer. You must hire one or go without. In other words, if a client is indigent, the State Public Defender will not appoint representation in a civil asset forfeiture. This can be particularly devastating to clients who qualify for a public defender when the State is also trying to seize their vehicle, home, or work equipment. I’ve seen it all: cars, trucks, homes, small businesses, work tools, rent payments, bank accounts, and even personal belongings like clothing, jewelry and electronics. The disparity of treatment between clients who qualify for a public defender, and those who are able to hire an attorney, are particularly stark when it comes to civil asset forfeitures.
So what can we do to defend against these actions? Number one, just filing an answer and staying the civil forfeiture goes a long way. A prosecutor’s incentive to pursue assets tends to decrease as a case goes on, and in the long run, a resolution in a criminal case is often viewed as the top priority. So in many negotiated outcomes clients get some or all of their assets returned to them. Additionally, in a shockingly high number of cases, the State does not use the right format to plead the case. So we tend to file a lot of motions to dismiss on civil asset forfeitures, and many of them turn out successful. A client can also show that some, or all of the assets the State is attempting to seize are from a legitimate source, which requires the return of those assets. Finally, if a third party can show that he or she legitimately owns property subject to seizure, and was not involved in unlawful activity, that person can demand the property be returned. It’s complicated, and if a civil forfeiture is contested, I highly recommend going through an attorney.
Hopefully the lesson here is pretty clear. Unless you are willing to lose the assets that the government is trying to seize, make sure that your criminal defense attorney agrees to represent you on both criminal charges and civil asset forfeitures.