Civil Forfeiture Evolves

Both the Federal Government and the Virginia Legislature have recently taken steps to rein in the use of civil forfeiture laws.  Civil forfeiture laws grant law enforcement agencies the authority to seize private property suspected of being used in connection with a crime.  Once seized, law enforcement agencies can keep or sell the property for their own benefit—even if the owner of the property is never charged with a crime.  While a property owner can initiate a lawsuit to prove that property was seized improperly, it is a costly and time-consuming undertaking. 

Civil forfeiture has long been criticized for encouraging abuse of property rights by giving law enforcement a financial incentive to seize property.  Billions of dollars have flowed to state and federal law enforcement agencies under civil forfeiture programs.  The U.S. Attorney General and Virginia lawmakers have taken steps this month to decrease the occurrence of abuse in civil forfeiture practices.

Until last week, under the Federal Asset Forfeiture Program, local and state law enforcement agencies could ask the federal government to take, or “adopt,” a seized asset for forfeiture under federal law and then share in the resulting proceeds.  Earlier this month U.S. Attorney General Eric Holder announced that, with the exception of materials concerning public safety, the federal government can no longer adopt property seized by local and state law enforcement agencies.  According to the DOJ press release announcing this change, an underlying basis for this new limitation is to “ensure that [the forfeiture program] can continue to be used to take the profit out of crime and return assets to victims, while safeguarding civil liberties.”

Virginia lawmakers also seem to be concerned with safeguarding civil liberties in the implementation of its asset forfeiture program.  The Virginia House of Delegates is currently considering two bills that would: (1) create a cause of action for a person whose assets were seized when there was a final disposition without a conviction; and (2) require that a civil forfeiture proceeding be stayed until the owner of the seized assets, if convicted, has exhausted all appeals.  If these bills pass they will represent a significant change in Virginia’s forfeiture law and in the ability of law enforcement officers to impact individual’s property rights.

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