• Kyle Persaud

How to Fight Civil Forfeiture

Civil forfeiture is the procedure where the state can take property from its owner if the property has a connection to a crime. You may be able to defeat a civil forfeiture if:


· The state can’t prove that the property was connected to a crime

· You are an innocent owner or creditor of the property, and someone else committed the crime without your knowledge

· You didn’t receive proper notice of the forfeiture

· The government didn’t file the forfeiture petition in time

· The property was your homestead

· The value of the property taken was excessive in relation to the crime committed.


Note: This post only discusses civil forfeiture in Oklahoma. If the federal government, or another state, seeks to forfeit property, the law is different. Also, this is not an exhaustive or comprehensive treatise on forfeiture law. Furthermore, the law of civil forfeiture changes frequently. For the most up-to-date information on civil forfeiture, consult an attorney.


How to Fight Civil Forfeiture in Oklahoma - Various Defenses:


1. The state cannot prove that the property was actually connected to a crime specified in the forfeiture statutes.


Okla. Stat. 21, § 1738 contains a list of offenses, and says that the state may forfeit certain property if the property is connected to the offenses in the list. To see the list, click on the statute here.


Under Okla. Stat. tit. 63 § 2-503, the state may forfeit any property with a connection to any violation of the Uniform Controlled Dangerous Substances Act. Under this statute, the state may also forfeit “any property or thing of value” if you have been fined under the Trafficking in Illegal Drugs Act, and you have not paid part or all of the fine.


Under Okla. Stat. tit. 21 § 2002, the state may forfeit any property “derived from” any offense that is a misdemeanor or felony in Oklahoma.


The state has the burden of proof


If you object to the forfeiture, the judge must hold a trial. If the value of the property is greater than $1,500, you have the right to demand a jury trial.


The state has the burden of proving that the property sought to be forfeited is connected to the commission of a crime. You don’t have to prove that the property wasn’t connected to a crime.


However, the standard for the state’s burden of proof varies based on the type of offense. If the state files its case under 21 § 2002 (which allows the forfeiture of all property “derived from” any misdemeanor or felony), or if the state files its case under 63 § 2-503 (which allows the forfeiture of any property connected with a violation of the Uniform Controlled Dangerous Substances Act), then the state must prove its case by a “preponderance of the evidence.” Preponderance of the evidence means that the state must prove that it is more likely than not (that is, 51%) that the property was derived from a misdemeanor or felony.


But, if the state files its case under 21 § 1738 (which allows the forfeiture of certain property connected with an offense from a list of specified crimes – click here for the list) then the state must prove its case by “clear and convincing” evidence. “Clear and convincing” is difficult to define. It places a higher burden on the state than a preponderance of the evidence standard. One of my law professors explained, “there’s no easy way to define clear and convincing, but think of it as 75%.” Thus, for an imperfect definition: if the state seeks to forfeit property on the grounds that the property is connected with a crime specified in 21 § 1738, then the state must prove that there is at least a 75% chance that the property was used in connection with one of the listed crimes.


Note also, that either standard of proof (preponderance of the evidence, or clear and convincing) is not the same standard of proof as the burden required on the state in a criminal case. In a criminal case, the state must prove “beyond a reasonable doubt” that you committed the crime. Because of the different standards of burden of proof, there are many cases where a person is not convicted of a crime, yet the court still allows the state to forfeit property. For further information on the different standards for civil and criminal cases, read my blog post, “Civil Law vs. Criminal Law: Know the Difference.


Other Defenses to Civil Forfeiture in Oklahoma


2. You own or have an interest in the property, and the crime was committed without your knowledge


This defense will apply if:


· Your property is a common carrier (such as a bus or an airplane) and you didn’t know that people were using the property to commit crimes.

· Your property is a vehicle, and someone else committed the crime while he possessed the vehicle unlawfully, without your knowledge.

· Your property was real property, and the crime was committed without your knowledge. (Because of this defense, many landlords are now adding a clause into their lease agreements, specifying that the tenant may not use the property for any use, manufacture, or sale of illegal drugs.)

· Your property was real property, and you and another person jointly owned the property. If the other joint owner used the real property to commit crimes, without your knowledge, you may have an “innocent owner” defense.

· You are a creditor, lienholder, or mortgagee of the property, and someone else committed the crime without your knowledge. This defense will only work if the amount due you is greater than or equal to the value of the item on the date the government seized the item. If this defense succeeds, the government is to sell the item and distribute a portion of the proceeds of the sale to you. However, you may only collect an amount up to the amount of your interest in the property.


If you raise a defense that you are an innocent owner or creditor, you have the burden of proving you are an innocent owner or creditor. The government does not carry the burden of proof in this instance.


3. The government did not give you proper notice of the forfeiture


In Mullane v. Central Hanover Bank and Trust, the U.S. Supreme Court held that, before the government deprives you of any property, the government must give you 1) notice of the deprivation, and 2) an opportunity to object to the deprivation. Mullane held that if the government does not do that, then the government has violated your right to due process of law under the Constitution.


Oklahoma state law has specific procedures for how the state must give you notice of a civil forfeiture. The exact procedure varies, depending on what offense the state alleges.

If the state alleges that the property was derived from a misdemeanor or a felony (under 21 § 2002) or that the property was used in the commission of a crime listed in 21 O.S. § 1738, the state must give you notice by:


· Having a deputy sheriff or licensed process server personally deliver the notice to you, or your home by leaving the document with a person 15 years of age or older, who resides with you,

· Mailing you notice via certified mail, or

· If your address is unknown, by publishing notice of the case in a newspaper of general circulation in the county where the government seized the property, or

· Any other method the court allows.


After you are served with notice (or after the notice is published in a newspaper) you have sixty days to file a response with the court. If you do not file a response, the state may forfeit your property without further action.


If the state alleges that the property is connected with a violation of the Uniform Controlled Dangerous Substances Act, the procedure is somewhat different:


· The state must send you notice by certified mail

· If your address is unknown, the state must publish notice in a newspaper of general circulation in the county where the government seized the property.


After you receive notice via certified mail (or after the publication) you have 45 days to respond; if you don’t respond in 45 days, the state may forfeit the property without further action.


In Pennoyer v. Neff, the U.S. Supreme Court held, that if a court orders the taking of your property without proper notice, the judgment is void. If a judgment is void, you may attack the judgment at any time, in any other court that has jurisdiction.


4. The forfeiture was not timely filed


There are time limits for when the state must file a forfeiture action. Okla. Stat. tit. 12 § 95(A)(4) says that the state must file a forfeiture suit within one year “after the cause of action shall have accrued … except where the statute imposing it prescribes a different limitation.” If the state seeks to forfeit property under 21 § 2002, on the grounds that the property was derived from a felony or misdemeanor, then, the state must file the forfeiture within ninety days after they seized the item.


5. The property was your homestead


The Oklahoma Constitution holds that “the homestead of the family … is hereby protected from forced sale.” The state Supreme Court has ruled that this means that the state may not forfeit your homestead.


Article 12, § 1 of the Oklahoma Constitution defines “homestead” as:


· Property up to one acre “owned and occupied as a residence only, or used for both residential and business purposes” if the property is inside city or town limits

· Property up to 160 acres “owned and occupied and used for both residential and commercial agricultural purposes” if the property is outside city or town limits.


6. The value of the property was excessive, in relation to the offense alleged.


The Eighth Amendment to the U.S. Constitution prohibits “excessive fines.” Three years ago, the U.S. Supreme Court held that this means that a civil forfeiture may not be excessive. See my earlier blog post on this case.


The courts have not clearly defined what constitutes an “excessive” forfeiture. Because the Supreme Court’s decision was relatively recent, this is an emerging area of law – watch to see how lower courts will grapple with this issue. If the state has forfeited your property, and you believe the amount forfeited was excessive, you will want to press this argument in court.


You have rights against civil forfeiture – use them!

The Oklahoma Supreme Court has said that “the law abhors forfeitures and statutes authorizing forfeiture of private property are to be strictly construed” and that “A forfeiture will not be allowed except when required by clear statutory language.”

If the state has forfeited your property, you don’t have to take it sitting down. The Persaud Law Office has handled forfeiture cases, and we may be able to help you. Contact us today.

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