Civil Asset Forfeiture: How It Works and How to Contest It

Civil asset forfeiture is a legal process that allows the federal government to seize and permanently keep money, vehicles, real estate, or other property it believes is connected to a crime, even if the owner is never charged with or convicted of anything. The lawsuit is filed against the property itself, not against a person, which is why forfeiture cases carry names like United States v. $8,850 in U.S. Currency. That structural quirk changes almost everything about how these cases work compared to a criminal prosecution.

Why the Rules Are Different From a Criminal Case

Forfeiture relies on a doctrine called “in rem” jurisdiction. Because the government’s opponent is an inanimate object, the property has no right to remain silent, no presumption of innocence, and no right to a traditional criminal jury trial. That framing is what makes forfeiture so much friendlier to the government than a criminal charge would be.

Congress rebalanced things somewhat with the Civil Asset Forfeiture Reform Act of 2000 (CAFRA). Before CAFRA, owners had to prove their property was “innocent.” The law flipped that, requiring the government to prove by a preponderance of the evidence that the property is connected to illegal activity.¹ CAFRA also created a federal innocent owner defense, authorized attorney’s fees for owners who win, and established narrow rights to appointed counsel. It did not level the field, but it made contesting a seizure realistic in ways it wasn’t before.

What Property Can Be Taken

Federal forfeiture statutes reach almost any type of asset. The two main authorities are 18 U.S.C. § 981, which covers property linked to money laundering, fraud, and other financial crimes, and 21 U.S.C. § 881, which targets property connected to drug offenses.²³

Cash is by far the most common target. Vehicles, boats, and aircraft used to move contraband are routine. Real estate can be taken if the government believes it was used to facilitate a crime punishable by more than a year in prison. Bank accounts, business interests, and digital currency show up as well. The core standard is that property qualifies for forfeiture if it represents the proceeds of a crime or was used to carry one out. The government doesn’t need to show the property itself is illegal, only that it has a sufficient connection to illegal conduct.

Officers taking property must be able to establish what courts call a “nexus” between the specific asset and a specific crime. Finding a large sum of cash packaged alongside drug residue creates that link. Mere possession of cash or valuable property does not.⁴

Two Tracks: Administrative and Judicial Forfeiture

Not every forfeiture ends up in court. The federal system has two tracks, and which one applies depends mostly on the value and type of property.

Administrative Forfeiture

Administrative forfeiture is the default. It allows the seizing agency to forfeit property without ever filing a lawsuit, as long as the combined value of the seized personal property does not exceed $500,000.⁵ Real estate always requires judicial forfeiture regardless of value.

After seizing property, the agency must send written notice to anyone who appears to have an interest in it. That notice must go out within 60 days of the seizure, or 90 days if state or local police made the initial seizure and then handed the property to a federal agency.⁶ The agency can extend the deadline by another 30 days in narrow circumstances.

Here is the part that catches most people off guard. If nobody files a claim contesting the seizure within the deadline, the property is automatically forfeited. No hearing. No judge. The government simply takes permanent title.⁵ The vast majority of federal forfeitures end this way, often because the amounts involved are small enough that hiring a lawyer costs more than the property is worth.

Judicial Forfeiture

If someone files a claim during the administrative process, or if the property exceeds the $500,000 threshold, or if real estate is involved, the case moves to federal court. The government then has 90 days from the filing of a claim to file a formal complaint in the appropriate U.S. District Court.¹

How to Contest a Seizure and Meet the Deadlines

The single most important thing to understand about civil asset forfeiture is that the deadlines are short and unforgiving. Once notice arrives, you have to act.

Direct written notice will state a deadline for filing a claim. That deadline cannot be shorter than 35 days from the date the letter was mailed. If you never received a personal letter but the government posted notice on the official forfeiture website (forfeiture.gov), you have 30 days from the date of final publication to file.¹⁷ Missing the deadline almost certainly means losing the property for good. Treat it as non-negotiable.

Filing a claim moves the case out of the agency’s hands and into federal court, where the procedural protections built into CAFRA start to apply.

What the Government Has to Prove

Once a claim is filed and the case proceeds to a forfeiture hearing, the government carries the burden of showing by a preponderance of the evidence that the property is subject to forfeiture. “Preponderance” means more likely than not, a substantially lower bar than the “beyond a reasonable doubt” standard required for a criminal conviction.

When the government’s theory is that the property was used to facilitate a crime rather than that it represents criminal proceeds, it must also show a “substantial connection” between the property and the offense.¹ The word “substantial” matters; a loose or speculative link is not supposed to be enough. If the government meets its burden, the court issues a final order transferring permanent ownership. If it fails, the property goes back.

The Innocent Owner Defense

Even when the government proves its case, an owner can still win by establishing an innocent owner defense under 18 U.S.C. § 983(d).¹ The catch is that you bear the burden of proving innocence by a preponderance of the evidence. The government does not have to disprove it; you have to affirmatively establish it.

What “innocent owner” means depends on when you got the property.

If You Owned the Property Before the Crime

You qualify as innocent if you either did not know about the illegal conduct or, once you learned about it, took reasonable steps to stop it. Reasonable steps can include notifying law enforcement and revoking permission for the person involved to use the property. The law does not require you to take actions that would put someone in physical danger.

The practical challenge is proving a negative. If your car was borrowed by a family member who used it in a drug transaction, you need evidence that you had no knowledge of the plan. Text messages, witness statements, and proof you were somewhere else all help. Willful blindness will not cut it.

If You Acquired the Property After the Crime

If you bought the property after the illegal activity already occurred, you qualify as innocent only if you paid fair value and had no reason to believe the property was subject to forfeiture. A narrow exception exists for people who received property through marriage, divorce, or inheritance without paying for it, but only if the property is a primary residence, losing it would leave the owner without reasonable shelter, and the property is not traceable to criminal proceeds.

Lawyers, Costs, and the Fee-Shifting Rule

Because civil forfeiture is not a criminal case, you generally have no right to a court-appointed attorney. You either hire a lawyer or represent yourself. For property worth a few thousand dollars, this can create an impossible math problem: fighting the forfeiture costs more than the property itself, which is a large part of why so many seizures go uncontested.

CAFRA carved out two narrow exceptions. If you already have a court-appointed attorney in a related criminal case, the court may authorize that attorney to also represent you in the forfeiture proceeding. And if the government is trying to forfeit your primary residence and you cannot afford a lawyer, the court must ensure you are represented by a Legal Services Corporation attorney.¹ Outside those situations, you are on your own.

There is a real financial incentive to fight, though. If you substantially prevail in a federal forfeiture case, the government must pay your reasonable attorney’s fees and litigation costs.⁸ That provision can make hiring a lawyer viable when the claim is strong, because the downside risk of legal fees shifts to the government if you win.

Constitutional Limits on Large Seizures

The Eighth Amendment’s Excessive Fines Clause is the main constitutional check on forfeiture. The Supreme Court confirmed in Austin v. United States (1993) that civil forfeiture counts as a “fine” when the government’s purpose is at least partly punitive. In Timbs v. Indiana (2019), the Court held that this protection applies against state governments as well, not just the federal government.⁹

In practice, a forfeiture can be struck down if the value of the seized property is grossly disproportionate to the severity of the offense. A court asked to forfeit a $40,000 vehicle over a minor drug possession charge, for example, should weigh whether the punishment fits the crime. There is no bright-line formula, and courts apply the analysis case by case, but it remains a real tool for owners facing outsized seizures.

State Law May Give You More Protection

Everything above describes federal forfeiture. Most states have their own forfeiture statutes, and many have moved aggressively to reform them. Since 2014, more than three dozen states have changed their civil forfeiture laws in some way. Roughly 16 states now require a criminal conviction before the government can permanently forfeit most types of property, and three states have eliminated civil forfeiture entirely, permitting only criminal forfeiture where a conviction comes first.

Some states have also passed laws designed to close what is known as the equitable sharing loophole, in which state and local police hand seized property to a federal agency that then forfeits it under the more permissive federal rules and shares the proceeds back. If your property has been seized by state or local officers, checking whether your state offers stronger protections than federal law can meaningfully change your options.

1
Office of the Law Revision Counsel. 18 USC 983 – General Rules for Civil Forfeiture Proceedings
2
Office of the Law Revision Counsel. 18 USC 981 – Civil Forfeiture
3
Office of the Law Revision Counsel. 21 USC 881 – Forfeitures
4
FBI Law Enforcement Bulletin. Asset Seizure and Forfeiture – A Basic Guide
5
United States Department of Justice. Administrative and Judicial Forfeiture
6
eCFR. 28 CFR 8.9 – Notice of Administrative Forfeiture
7
Federal Register. Administrative Forfeiture – New Publication Timeline for the Notice of Seizure and Intent to Forfeit
8
U.S. Department of Justice. Civil Asset Forfeiture Reform Act of 2000
9
Supreme Court of the United States. Timbs v. Indiana, No. 17-1091