A “forfeiture” is where a state or federal governmental agency seizes and retains property under criminal or civil laws. The property that is seized is property the agency believes has either been used in the commission of a crime or represents the proceeds of a crime.

Property that is often forfeited includes:

• Contraband;
• Money or other proceeds from illegal activity (including cash and money in bank accounts);
• Tools used in the commission of certain crimes (e.g., a car); and
• Real property (land and homes) used in the commission of certain crimes.

Forfeiture laws exist under both Washington State law and federal law. These laws set forth strict procedures and requirements that an agency must meet before it can legally take ownership of a person’s property.

Please note that there are legal defenses that a property owner can raise to defeat the government from taking over his/her property rights. And, a property owner may even recover attorneys fees if successful in defeating the government’s case.

Our Washington criminal defense attorneys will discuss the following in this article:

1. What is the legal definition of forfeiture?

2. What “property” is involved in forfeiture proceedings?

3. What is the purpose of forfeiture?

4. What are Washington’s civil forfeiture laws?

5. What are federal civil forfeiture laws?

6. What are federal criminal forfeiture laws?

7. Are there legal defenses in state and federal forfeiture cases?

            7.1 No knowledge of criminal activity

            7.2 No adherence to notification/timing deadlines

7.3 Failure to meet “preponderance of the evidence” test

8. What happens to property after it has been forfeited?

1. What is the legal definition of forfeiture?

“Forfeiture” is an act initiated, and carried out, by a governmental agency in accordance with certain state and federal criminal statutes. Some of these statutes include:

• The Washington state forfeiture statute, RCW 69.50.505;
• The federal civil forfeiture statute, 18 USC 981; and,
• The federal criminal forfeiture statute, 18 USC 982.

These statutes apply to the property used in the commission of a crime and to property acquired from the proceeds of the crime.

In a forfeiture proceeding, government agencies try to take property that they believe has been used in the commission of a crime, as well as the proceeds of that crime. Consider, for example, an alleged drug dealer in Washington that makes and sells drugs out of his home. Given the illegal acts, the State of Washington could try to seize the dealer’s home and any cash that he made (since both were connected to a drug crime).

Civil forfeiture is a process where the government takes property based on its connection with criminal activity, but does not involve a person being charged with or convicted of a crime.  Criminal forfeiture results from conviction of a crime.

2. What “property” is involved in forfeiture proceedings?

Forfeiture laws have established four categories of property that are subject to forfeiture. These include:

• Contraband – property for which it’s a crime to own (e.g., illegal drugs)
• Proceeds from illegal activity – essentially property that results from, or can be traced back to illegal activity (e.g., money)
• Tools used in the commission of a crime – property used to commit a crime (e.g., a car  or boat)
• Real property- land and homes used in the commission of certain crimes – (e.g., a marijuana grow house)

3. What is the purpose of forfeiture?

There are two main justifications for forfeitures. These are:

1. The punishment of criminal activity; and,
2. The deterrence of criminal activity.

As to the latter reason, the idea here is that people would be less likely to engage in a criminal act if they were prevented from keeping anything of value gained in the commission of such act.

4. What are Washington’s civil forfeiture laws?

Washington civil forfeiture laws apply when the State of Washington attempts to seize property connected to illegal activity in a civil proceeding. The primary Washington civil forfeiture statute, RCW 69.50.505, applies to crimes involving controlled substances (drug crimes).

In these proceedings, the seizing agency is the party that initiates the case (and is therefore the plaintiff). This is typically either a local police department or a county sheriff’s office.  In many jurisdictions law enforcement agencies will band together to form a regional task force.  The case is brought not against the owner of the property, but against the property that the government is trying to obtain (e.g., a car used in the commission of a crime).

According to civil forfeiture laws, law enforcement agencies can forfeit property if it proves that the property was associated with a criminal act. The agency must prove this by a “preponderance of the evidence.” A “preponderance of the evidence” is a showing that the property was more likely than not associated with a crime.

If the agency can make this showing, then the owner of the property can still try to retain possession of the property. The owner can retain possession if the owner can prove that he or she had nothing to do with, or did not know about, the criminal activity involved in the case.  This is often referred to as the “innocent owner defense.”

Please note that governmental agencies in Washington can initiate civil forfeiture proceedings even if no criminal charges have been filed. For cases involving money or other personal property such as vehicles, agencies can initiate a forfeiture action administratively, or in other words without even filing a case in court.  In such cases, the agency itself gets to designate an officer to decide whether forfeiture is appropriate.  Fortunately, the law provides that people seeking the return of property have a right to remove the case to court to obtain an impartial decision.  There are strict timelines and procedures governing how to remove a case and it is important to have a lawyer familiar with these rules to ensure that things are done correctly and that important rights are not forfeited.  For real property (land and homes) the agency must file a lawsuit in court in order to initiate a forfeiture proceeding.

5. What are federal civil forfeiture laws?

Federal civil forfeiture laws are somewhat similar to Washington civil forfeiture laws, but apply to more types of crimes. 18 USC 981 provides for forfeiture of property related to various types of listed crimes.  21 USC 881 provides for forfeiture of property related to controlled substances offenses.  Other statutes apply to other types of specific criminal activity.  Most of the specific statutes apply the procedures set forth in 18 USC 981. 18 USC 983 sets forth the rules related to civil forfeiture proceedings.

In these types of cases, a federal agency initiates a civil lawsuit in federal court. The suit is brought, not against a person, but against the property that the agency is trying to seize. Please note that a criminal charge does not have to get filed before these proceedings may commence.  Federal civil forfeiture proceedings also often begin as administrative actions.  In such cases agencies seize property and determine whether it should be forfeited under their own rules.  In these cases, the agency rules provide that a person claiming ownership of property has a right to have the case heard in court if he or she is not satisfied with the decision of the agency.  As such, it often makes sense for claimants to first try to fight at the agency level, which is simpler and less expensive, because claimants retain the right to take the case to court if they do not like the results from the agency.

Federal civil forfeiture laws say that an agency can legally seize the property being sought if it can show that it was linked to a criminal act. Like under Washington’s civil forfeiture laws, the federal laws state that the federal agency must prove this by a “preponderance of the evidence.” Again, this is a showing that the property was more likely than not associated with a crime.

If the agency succeeds in its proof, then the owner of the property still has a chance to retain ownership of it. The owner can try to retain ownership by proving that he was not aware of the illegal use of the property.

6. What are federal criminal forfeiture laws?

Federal criminal forfeiture laws set forth the legal steps and requirements for a federal agency to seize and retain property capable of being forfeited. The federal criminal forfeiture statute, 18 USC 982, essentially directs courts to forfeit property related to criminal convictions.

Under these laws, three things must happen before a federal agency can pursue the forfeiture of property. These are:

1. Criminal charges must be filed;
2. A defendant must be found guilty of these charges (or charge); and,
3. The defendant’s guilt must be proven beyond a reasonable doubt.

Once the above takes place, then an agency can forfeit property if it can show that there is a connection between the property and the crime in question. Federal laws state that the federal agency must prove this by a “preponderance of the evidence.” As with the burdens of proof discussed above, this is a showing that the property was more likely than not associated with a crime.

Prior to any seizure, however, the owner of the property can attempt to retain possession of the property. The owner can do this by rebutting the government’s showing that the property is connected to a crime.

There is also a Washington State criminal forfeiture statute, RCW 10.105.010, but it is not utilized nearly as frequently or aggressively as other forfeiture statutes.

7. Are there legal defenses in state and federal forfeiture cases?

Once a government agency initiates the forfeiture process, a person can challenge the forfeiture by raising a legal defense. A sound defense can work to avoid or challenge the government’s seizure of property. A few defenses have already been mentioned above.

Three common defenses in forfeiture cases include:

1. No knowledge of criminal activity;
2. No adherence to notification/timing deadlines; and,
3. Failure to meet the “preponderance of the evidence” test.

7.1 No knowledge of criminal activity

This defense is sometimes referred to as the “innocent owner” defense; and, it has been touched upon above. Under this legal defense, a property owner shows that either:

• He did not know that the property was linked to a criminal act; or,
• He did not consent to the illegal use of the property.

This defense is typically easier to raise if a person acquired ownership of the property before any illegal activity occurred.

7.2 No adherence to notification/timing deadlines

Strict timing and notification deadlines are involved in both Washington State and federal forfeiture cases. Property may not be seized if these were not followed or met.

For example, in Washington forfeiture proceedings, the laws (RCW 10.105.010(3) and RCW 69.50.505(3)) state that the government must provide a party notice that it has seized an item of property. This notice must be given within 15 days following the seizure. If notice is not given within this 15-day period, a property owner may have a solid defense to the taking of the property.

7.3 Failure to meet the “preponderance of the evidence” test

This defense has been alluded to above. Before a government agency can legally forfeit property, it must prove that the property is associated with, or linked to, an illegal act. And, it must show this by a preponderance of the evidence. A “preponderance of the evidence” is a showing that the property was more likely than not associated with a crime. In challenging a seizure of property, therefore, a party can argue that the government failed to meet its burden of proof.

8. Is a claimant entitled to attorney fees in a forfeiture proceeding?

Both Washington State and federal civil forfeiture laws say that a party may be entitled to attorney fees if the party prevails in a forfeiture matter. This means that if the government initiates a forfeiture case, and the property owner subsequently wins the case (i.e., keeps the property), then the owner can get reimbursed for the legal costs of his/her attorney.  Importantly, this only works one way- a claimant is not on the hook for the agency’s expenses if the agency prevails. These provisions are crucial for people who are trying to fight against illegitimate forfeiture actions undertaken by powerful, well-resourced agencies.

9. Where does property go after it has been forfeited?

One of three things usually happen once property has been forfeited. This is that that the property is either:

• Sold;
• Kept by the agency that seized it; or,
• Destroyed (if the property is harmful to the public).

Please note that the selling of forfeited property does open law enforcement agencies to criticism. The practice of seizing property and selling it is sometimes referred to as “policing for profit.” This term is used because the seizure of property allows government agencies, and law enforcement personnel, to make money on the property they acquire via forfeiture. Some believe that this ability to make a profit leads to overbearing forfeiture practices by governmental entities.

Further Questions?

Contact Black Law now if you or someone who know owns property that is, or could be, subject to forfeiture proceedings. Our Seattle based criminal defense attorneys know forfeiture law and they have the experience that matters. Call Black Law today to get the quality legal representation you deserve.