During my seventeen years practicing criminal law, I can recall only one case where someone was able to claw back hundreds of thousands of dollars that were seized as part of a drug crime. This week’s Supreme Court opinion, Timbs v. Indiana, may change that. Normally, as attorneys we routinely tell our clients “if the cops took it, you’re never going to get it back.” From cars to cash, homes to helicopters, the government routinely files what is called “civil forfeiture” actions against criminal defendants’ property. The only way to contest those forfeitures was by filing a claim or an appeal of the government’s action, which would almost always be summarily denied. Then you could file a lawsuit in court, but those were also almost always denied.
The reason is that the government only has to show that the property had some connection to a crime. If you had drugs in your car, you lost the car. If you had drugs or guns in your house, you sometimes lost the house. I remember reading about a woman who lost her house to civil forfeiture even though she repeatedly tried to get people to stop selling drugs around it.
The Timbs opinion was a 9-0 decision (rare nowadays, but we’ll see with the new composition of the court). And I think that’s because it really doesn’t do much new, although I do think it will have some effect. Most states already have laws regulating civil forfeiture and prohibiting “excessive” forfeitures. This opinion really just says that the 14th Amendment applies the 8th Amendment right to the states. So, in most states there’s no substantive change in the law. However, I am hopeful that the Timbs case will at least influence government and judicial referees to look at forfeiture orders with more scrutiny.
If you have a civil forfeiture case, you should either consider filing a motion contesting the forfeiture or speak to an attorney about your options. It is no longer a hopeless proposition to stop the government from taking everything.