How to Fight Government Forfeiture of Your Money or Property

David S. Mejia's Louisville Criminal Defense Blog

Posted 2019-09-10

How to Fight Government forfeiture of your money or property

When your cash is seized by the government at the airport, from your car or home, or as you enter or leave the country—and you’ve committed no crime—don’t let the government keep it.

It happens every day at airport security, following a police traffic stop for even minor moving violations, or as the result of a police search (with or without a Search Warrant) of a person’s home, apartment, or hotel room, or at border crossings or virtually anywhere federal and local police interact with citizens; Police take cash from individuals who have $10,000 or over. Even when no crime is committed…within days individuals deprived of their property by our government receive a mailed NOTICE OF SEIZURE OF PROPERTY AND INITIATION OF ADMINISTRATIVE FORFEITURE PROCEEDINGS.

How to fight a forfeiture

My advice—after your cash has been taken: OPEN YOUR MAIL. The Notice will inform you that you may contest the forfeiture by filing a “Claim”. The time limit to file a Claim against forfeiture is thirty-five (35) days. Failure to do so waives the right to Claim the return of your money. Claim against forfeiture must be made (1) in writing, (2) describing the property, (3) stating your ownership or interest in it, and (4) made under oath. 18 U.S.C. § 983(a)(2)(C) and 28 U.S.C. § 1746. Failure to file the Claim can and will result in your cash or property being forfeited.

As an alternative to filing a Claim you may file a PETITION. This is called a “PETITION FOR REMISSION OR MITIGATION”. Different from the time period for a Claim, the Petition against forfeiture must be received by the government within thirty (30) days from receiving the mailed NOTICE OF SEIZURE OF PROPERTY AND INITIATION OF ADMINISTRATIVE FORFEITURE PROCEEDINGS. The Petition must (1) describe your interest in the property, (2) be supported by documents or facts to justify the return of the property, and (3) signed under oath. 28 U.S.C § 1746.

WHY DO THE POLICE TAKE PEOPLE’S MONEY

21 U.S.C § 881(a)(6) permits forfeiture of “all proceeds traceable to…an exchange [of a controlled substance], and all monies…used or intended to be used to facilitate any violation of [Federal Drug Laws] (emphasis added).” While Federal Forfeiture Statutes involving forfeiture provide for forfeiture of property involving obscene material (18 U.S.C. § 1467 (a)(3)); or property used to commit or facilitate the commission of willful copyright infringement (18 U.S.C. § 2323 (a)(1)(B)); or property used to commit of facilitate the commission of crimes involving transportation of individuals in interstate commerce with an attempt to engage in prostitution (18 U.S.C. § 2428 (b)(1)(A)); these forfeit provisions all require an actor taking substantial, concrete steps to use the subject property for commission of the afore-listed crimes, or attempt to do so.

Fighting forfeiture can be extremely complicated and difficult. Often times, depending on the facts of each individual case, the government’s effort to take a citizen’s property may violate the Excessive Fines Clause of the Eighth Amendment (Timbs v. Indiana, 586 U.S. __ 2019); the Fourth Amendment’s protection against Unreasonable Search and Seizure (Illinois v. Gates; 462 U.S. 213 (1983)); the First Amendment where no crime was ever committed (Wooley v. Maynard, 430 U.S. 705 (1977)); or the Fifth Amendment’s Due Process Clause (Robinson v. California, 370 U.S. 660 (1962) and Powell v. Texas, 392 U.S. 514 (1968)).

David Mejia, Attorney at Law, licensed in Illinois and Kentucky and many United States Federal District Courts throughout the country has over 30 years of accumulated knowledge, training and experience representing individuals who both seek and successfully get the return of their cash and property the government seeks to forfeit. It is vital that one who has had their cash or property taken ACT IMMEDIATELY .