Civil asset forfeiture in D.C.

by Jamison Koehler on June 4, 2021

One of the rudest surprises for many people arrested in D.C. occurs after the case is closed:  Originally told that cash and property confiscated from them at the time of the arrest was being held as evidence for possible use against them at trial, they are now informed that the property is subject to “civil asset forfeiture”; that is, it is being confiscated by the government as the ill-begotten fruits of some type of illegal behavior.  This happens even in cases in which the charges are dismissed.

The first step in recovering confiscated property after a case is over is to ask the prosecutor (1) to fill out a 81-C form and (2) to send it over to the Metropolitan Police Department (MPD).  This lets MPD know that the “criminal” or “evidentiary hold” on the property has been lifted.  

That unfortunately is often only the first step toward recovering the property.  In many cases, the property in question may also be subject to civil asset forfeiture proceedings as the government seeks to maintain possession.

CIVIL VERSUS CRIMINAL FORFEITURE

Both civil and criminal forfeiture involve the taking of assets by police.

Black’s Law Dictionary defines “civil forfeiture” as “an in rem proceeding by the government against property that either facilitated a crime or was acquired as a result of criminal activity.”  From the Latin for “against a thing,” “in rem” is defined as “involving or determining the status of a thing, and therefore the rights of persons generally with respect to that thing.”  

“Criminal forfeiture,” by contrast, is an in personam (“against the person”) proceeding in which the government holds the property temporarily during an open criminal case.  The government only confiscates the property permanently if the accused person is convicted.  Otherwise, the seized property must be returned.

CIVIL ASSET FORFEITURE IN D.C.

According to the Office of the Attorney General, the entity which handles civil forfeiture matters in the District, the total amount of property forfeited in 2020 in D.C. was valued at $123,836.  In 46 out of 47 cases, the property forfeited was U.S. currency.  Drug cases accounted for the overwhelming majority of the underlying cases that led to forfeiture.

“Forfeitable offenses”

According to the Civil Asset Forfeiture Amendment Act of 2014, D.C. police may seize property either by court order or upon a determination that there is probable cause to believe that a “forfeitable offense” has been committed.  D.C. Code § 41-303(a).  “Forfeitable offenses” include illegal possession of firearms, trademark counterfeiting, gambling, prostitution, drug possession and dealing, and many traffic offenses, including counterfeit tags, speeding and reckless driving.  D.C. Code § 41-301(4).

Property subject to seizure

Property subject to forfeiture falls into one of four categories:  “real property” (i.e. land), vehicles, U.S. currency or personal property.  D.C. Code § 41-301(1).  Police must provide a receipt to the owner that identifies the property taken. D.C. Code § 41-303(d).  

Notice of intent to seek forfeiture

The government has 10 business days after the evidentiary hold has been lifted to notify the owner of its intent to seek forfeiture if the case was not charged by the prosecutor; 5 days if the case was charged.  D.C. Code § 41-304(a)(1)(D).  

The notice must include a claim form for the owner to assert his/her interest in the property along with the name and contact information for the D.C. official with whom the owner should communicate.  D.C. Code § 41-304(a)(2)(D) and (E).  

The government must also publish official notice of the seizure on its website.  D.C. Code § 41-304(a)(1)(B).  

Contesting forfeiture

A person receiving notice of forfeiture has 90 days to contest the seizure and forfeiture of the property.  The person may also request interim release of the property or a portion of the property. D.C. Code § 41-305. 

If the owner can establish “probable cause” that any seized currency is necessary to secure counsel in the pending criminal matter or to meet the basic necessities of life, the portion of the currency necessary to meet these needs must be returned.  D.C. Code § 41-306(g)(1).  

Civil forfeiture trial

If the owner of the property in question contests seizure, the government has 60 days to file a “libel of information” requesting a hearing.  The deadline is extended to 90 days in cases in which the owner has retaken possession of the property pending trial.  D.C. Code § 41-307.

Either party to a forfeiture action has a right to trial by jury.  D.C. Code § 41-308(b).  The District has the burden of proving by clear and convincing evidence that a motor vehicle or real property should be forfeited.  The burden otherwise is by a preponderance of the evidence.  D.C. Code § 41-308(d)(1)(B).  

There is a rebuttable presumption that currency totaling $1,000 or less was not used or intended to be used in furtherance of a forfeitable offense.  D.C. Code § 41-308(d)(1)(C).

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