Civil Forfeiture Lawyer Las Vegas

Civil Forfeiture or Legal Piracy?

Recently there has been a lot of buzz on the internet about John Oliver’s segment on HBO relating to Civil Forfeiture.

What is “Civil Forfeiture”?  Civil Forfeiture can be described as legal piracy.  It dates back centuries when the British Government required ships importing or exporting goods to fly under the British flag.  If ships were found to be in violation of the law, the government would seize the cargo, then sell the cargo and use the proceeds for the benefit of the government.

As with most laws, the United States models its laws after the British common law and the United States Congress enacted its own forfeiture laws to aid in the collection of customs duties.   In the early years of the United States, the law was used to enforce admiralty laws and combat piracy.  In a famous case, the Supreme Court reasoned that a vessel which commits an aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches. The justices opined that forfeiture was the only means of suppressing the offense or wrong.  Therefore the claim is against the property and not the alleged offender.

During the days of prohibition, the federal government used forfeiture laws against cars and other vehicles that were used to transport alcohol.  The laws were expanded extensively in the 1980’s when the federal government and many states increased their efforts at enforcing laws against drug trafficking.

What once started out as a means by which the government could enforce admiralty law has since become the method by which many governments are being allowed to engage in a form of piracy.  In Nevada and at least 40 other states, under various statutes, law enforcement agencies can, and do, seize private property without legal due process.  If a law enforcement officer even suspects you have committed a crime or are about to commit a crime he can seize your property.  The property seized is typically in the form of cash.  However, law enforcement agencies are also known to seize vehicles and homes.

Why Does Law Enforcement Seize Property?

Law enforcement agencies are allowed to use the proceeds from forfeiture in any manner they want, except for general operation expenses.  This means that they can use the funds to acquire advanced equipment for special operations or use it for other perks.  Therefore, there is an incentive for law enforcement to seize property, especially cash.

As grounds for searching your vehicle a law officer must have “probable cause” to believe a crime has been committed.  However, to conduct a search of your person, all a law enforcement officer needs to claim is that you acted suspiciously. This is referred to as a “terry” stop or stop and frisk.  It is a lower standard of proof referred to as “reasonable suspicion.”  What constitutes suspicious activity can be the subject of much debate but often times something as simple as having tinted windows on your vehicle or having multiple tattoos or wearing certain types of clothing is given as justification for a stop and frisk.  The officer can also claim that you were too talkative or too quiet or driving below the speed limit, and therefore you were suspicious.

The officer will ask you if you have any weapons, drugs or cash on your person, or in your vehicle.  If you have significant sums of cash on your person or in your vehicle the officer may confiscate your money.

You do not even need to be arrested or charged with a crime, yet you will be forced to go through a potentially expensive court process to get your property back.   According to the American Civil Liberties Union (ACLU) asset forfeiture practices often go hand-in hand with racial profiling and disproportionately impact low-income African-American or Hispanic people who the police decide look suspicious and for whom the process of trying to get one’s property back is an expensive ordeal that is often abandoned.   The ACLU offered the following example:

While driving on a highway on the east coast an individual was pulled over by an officer claiming that the car had a broken taillight, which was not true.  Once stopped, the officer subjected the driver to a search, claiming he looked like a drug dealer.  The officer asked the driver if he was carrying drugs, weapons or money.  The driver replied that he had $3,500 cash.  The officer seized the money, claiming that it must be the proceeds of drug dealing. The driver was never charged with a crime, nor did he receive a ticket for a broken taillight.

This scenario can play out on any given day on any street in Las Vegas or any other city.  Given the abundance of gaming establishments in Las Vegas, it would not be suspicious for anyone to have significant amount of cash while driving a vehicle.  As everybody knows, gambling is legal in Nevada and several other states and it is not indicative of criminal activity for a person to have thousands of dollars on their person.

Civil Forfeiture is Legal and There is a Process for it

While an officer can seize the property outright, in order to keep the property it the government must use the civil forfeiture process.  In Nevada, the forfeiture laws are found in Chapter 179 of the Nevada Revised Statutes.  Under these statutes there is a process by which the law enforcement agency must begin a proceeding for the forfeiture of seized property.

The seizure of property is supposed to be subject to process issued by a magistrate having jurisdiction over the property.  However the statute has exemptions.  Seizure of property may be made by a law enforcement agency without process if the seizure is incident to an arrest or if the law enforcement agency has probable cause to believe the property is subject to forfeiture.   Remember, probable cause can be claimed by an officer if he believes that the person was acting “suspiciously.”

Property that can be subject to seizure by law enforcement and forfeiture includes any proceeds attributable to the commission or attempted commission of any felony or any property or proceeds otherwise subject to forfeiture pursuant to statute.

Proceeding in REM (against the property):

One would expect that if another person were to take your property without permission, you would have a cause of action against that person for theft or conversion and you, the victim, would be able to bring an action to recover your property.  However, in a forfeiture case it is the law enforcement agency that actually files a complaint for forfeiture, because the complaint is against the property that has been seized.  This process is founded under the legal fiction that the property itself is guilty of the crime.  Thus, the law ascribes to the property a certain personality, a power of complicity and guilt in the alleged wrong.  Further, since the proceeding is against the property and not against the person, the complaint must be filed in the county in which the property is located.

If the property was seized without process, the law enforcement agency must file its complaint “promptly” and not later than 60 days after the property was seized.  The law enforcement agency must serve the complaint with a summons upon all persons who can be identified through the exercise of reasonable diligence who might have a claim to the seized property.  Each person who claims to have an interest in the property must file an answer within 20 days of being served with the summons and complaint.

Proof Required:

The law enforcement agency must establish proof by “clear and convincing” evidence that the property is subject to forfeiture.  The law enforcement agency is not required to prove, or even plead, that the person from whom they have seized the property has been charged with or convicted of any criminal offense.  However, if the law enforcement agency is able to show that such a conviction is made, and it is shown that the judgment of conviction has become final, the proof of the conviction is conclusive evidence of all facts necessary to sustain the forfeiture.  In addition, the law enforcement agency has an absolute privilege to refuse to disclose the identity of any person, other than a witness, who has furnished information purporting to reveal the commission of a crime.

If the court determines that the property is subject to seizure, the court will issue a decree and the property will be forfeited to the law enforcement agency.  The agency may retain it for official use, or sell any of it that is not required to be destroyed.  The proceeds from any sale of forfeited property are applied to satisfy any protected interest established by a claimant (see below), expenses incurred in proceeding with the forfeiture and resulting sale, the expense in maintaining custody of the property.  The remaining balance is deposited into a special account established by the governing body that controls the plaintiff.

In the case of a metropolitan police department, the proceeds are deposited into a special account (there are other rules regarding the distribution of the proceeds if other agencies are involved).  The special account is known as the “forfeiture account” and is separate from the General Funds of the governing body.  The money many be used for any lawful purpose deemed appropriate by the chief administrative officer of the law enforcement agency, except it cannot be used for normal operating expenses unless they are for a joint task force on narcotics.

Forfeited Property Can Belong To Others

Under Nevada statutes forfeiture proceeds are any property, or that part of an item of property, derived directly or indirectly form the commission or attempted commission of a crime, and a claimant is any person who claims to have any right, title or interest of record in the property or proceeds subject to forfeiture, or any community property interest in the property proceeds, or had possession of the property or proceeds at the time of the seizure.  This means that the seized property does not need to be the property of the person who is suspected of committing or attempting to commit a crime.  It also means that just because you own the property, and were not involved in any criminal activity, you do not automatically get your property back.

The forfeiture statutes allow an innocent owner affirmative defense.  In order to assert the “innocent owner” defense to forfeiture, the claimant must establish some form of ownership interest in the property before, or during, the act giving rise to the forfeiture.  If the owner of the property proves the illegal act was committed without his or her knowledge, or that, upon learning of the conduct, he or she attempted to cease the use of the property then the property is not subject to forfeiture and his or her claim will be given priority standing.

However, one asserting the innocent owner defense cannot avoid being charged with constructive knowledge if the law enforcement agency can show that that the owner should have known after a reasonable inquiry that his or her property was likely to be employed in a criminal activity.  This is referred to as “willfull blindness.”  A claimant seeking to avoid forfeiture by proving that he or she did not consent to illegal activities occurring on the property must prove that he or she tool all reasonable steps to prevent the illegal activity.  Then the law enforcement agency or the court should be require to articulate other measures that it believes should have been taken and the claimant should be afforded an opportunity to present evidence and argument as to why the additional measures suggested were not reasonable under the circumstances.  The statute applies the reasonable person standard which means what an ordinary person would do under the same or similar circumstances.

Conclusion

A majority of states and the federal government have laws that permit law enforcement agencies to seize property of persons who have not committed a crime.  A law enforcement officer need only claim a reasonable suspicion that property was derived from or will be used to commit a felony.  When property is seized, the lawful owner of the property is placed in the position of having to prove their innocence.  Many innocent people simply abandon any effort to reclaim their property even when they are never charged with a crime or have otherwise been vindicated, because the cost of doing so may be more than the value of the seized property.  Whether the person has committed a crime is irrelevant, as the outcome is the same and the law enforcement agency becomes the owner of the seized property.  As a result, law enforcement agencies have a monetary incentive to seize property in violation of person’s rights.  This amounts to a government sanctioned form of piracy.

Innocent persons who have had their property seized by a law enforcement agency should not be afraid to defend their rights.  The Wright Law Group, P.C. has more than 20 years experience prosecuting civil cases and defending criminal cases and is well equipped to assist you in handling your case.  Please call us at 702-405-0001 to schedule a consultation or email us.

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