Procedures in Civil Asset Forfeiture Cases

In civil asset forfeiture, law enforcement can seize property allegedly connected to criminal activity without necessarily charging the owner with a crime. The property itself, rather than the owner, is the defendant in a civil action known as an in rem proceeding. In civil asset forfeiture cases, the specific procedures differ between administrative and judicial forfeiture and vary by state and federal law.

The Difference Between Administrative and Judicial Forfeitures

Most property worth less than $500,000 begins as an administrative forfeiture. The seizing agency sends a notice of seizure to the owner giving them a right to file a petition for remission or mitigation as part of the administrative forfeiture proceeding, or to trigger court action in a judicial forfeiture by filing a verified claim. The administrative forfeiture proceeding does not involve the courts unless a verified claim is filed.

Filing the verified claim with the seizing agency is the only way to contest the forfeiture. Once the verified claim is filed, it triggers a 90 day deadline for the Assistant United States Attorney (AUSA) to file a complaint for forfeiture in the appropriate U.S. District Court. The AUSA might also decline to file the complaint which then triggers a duty for the seizing agency to immediately return the property.

If the property is valued at $500,000 or more, the seizing agency has no option to use administrative forfeiture. Instead, the agency must convince an Assistant United States Attorney (AUSA) to file a complaint for forfeiture in the appropriate U.S. District Court.

Procedures for Civil Judicial Forfeiture

The civil judicial forfeiture requires a court proceeding. It begins when the seized property exceeds the administrative limit, involves real estate, or when a claimant contests an administrative forfeiture. In court, the government must prove the property’s link or nexus to a crime. By filing a judicial claim in court, the property owner becomes a claimant who can challenge the seizure.

Notice of Seizure

After law enforcement seizes the property, the government must notify interested parties in writing to trigger the administrative forfeiture proceeding, if available. Federal law requires this notice be sent within 60 days of the seizure, or 90 days if the government property was transferred from a state or local agency, called “adoption.”

What are the implications of a property owner not responding to a seizure notice? If the property owner does not respond to the notice of seizure within the allotted time, then the government becomes the owner of the property.

Filing a Verified Claim for Court Action

The property owner must file a verified claim to contest the forfeiture within a strict, non-negotiable deadline.

In federal administrative forfeiture cases, the claim must be filed within 35 days of the personal notice or the date in the published notice of forfeiture. The published notice of forfeiture can be found on the forfeiture.gov website.

In state cases, the deadlines vary by state. For example, some states require a claim to be filed within 30 days of receiving the seizure notice. In Florida, the agency must send a “notice of seizure” that gives the claimant 15 days to request an “adversarial preliminary hearing.” If the agency survives the adversarial preliminary hearing or none is requested, it must file the “complaint for forfeiture” within 45 days of the seizure.

Filing an Answer to the Complaint

Once a complaint for forfeiture is filed with the court, the litigation begins. The government must file a civil complaint for forfeiture within 90 days of the verified claim being filed, or it must return the property.

The claimant must file an Answer to the government’s complaint, stating their interest in the property and list any affirmative legal defenses.

If the case proceeds to a hearing or trial, the government must prove by a “preponderance of the evidence” (meaning “more likely than not”) that the property is connected to criminal activity.

Asserting Defenses to the Complaint

Claimants can defend against forfeiture by raising several defenses including:

• Innocent owner defense: The most common defense, this requires the claimant to prove they did not know about or consent to the property’s illegal use.
• Lack of probable cause: Challenging the government’s legal basis for the initial seizure.
• Excessive fine: Arguing that the value of the seized property is disproportionate to the offense.
• Unreasonable delay: If the government waited too long to file the case, it can be a valid defense.

Pre-trial Motions in Civil Asset Forfeiture Cases

In civil asset forfeiture cases, either party might file pretrial motions to dismiss the case or a motio for summary judgment. For example, the claimant can file pretrial motions to:

• suppress the evidence illegally seized in a motion to dismiss; or
• dismiss the case for failing to state a claim.

The govenment might file a motion to dismiss alleging the claimant does not have standing.

The Outcome of a Contested Forfeiture Case

If the parties do not reach a pretrial negotiated settlement and the court does not grant a motion to dismiss, then the case proceeds to trial. The claimant can demand a jury trial or might agree to a bench trial.

At trial, the factfinder decides whether to government has meet its burden by a preponderance of the evidence. If so, the property is forfeited to the seizing agency, which can then sell, use, or dispose of it. If not, the property is returned to the owner and the government. If the claimant “substantially prevails” at trial or during pretrial motions, the govenment is required to pay the claimant’s reasonable attorney fees and costs.

This article was last updated on Friday, September 12, 2025.