What is Civil Asset Forfeiture?
Civil asset forfeiture is widely used by federal and state law enforcement agencies to seize personal property alleged to be either an instrumentality or the proceeds of criminal activity. Because civil forfeiture proceedings are brought against property, rather than against individuals, forfeiture proceedings occur separately from criminal proceedings and are not dependent upon a criminal trial. Some states have recently enacted legislation requiring a criminal conviction.
Civil Asset Forfeiture in Illinois
Civil asset forfeiture in Illinois is governed by Federal and State regulations and case law that govern the procedures and protections involved in the process. State law enforcement agencies in possession of seized property must ensure its security and maintenance to prevent value reduction, and they may be responsible for physical damages to the seized personal property.
The United States Supreme Court continues to shape Civil Asset Forfeiture. In Leonard v. Texas, the Supreme Court highlighted the potential for abuse in civil forfeiture systems where law enforcement entities have strong financial incentives to pursue forfeiture Leonard v. Texas, 580 U.S. 1178.
In June 2024, the United States Supreme Court in Culley v. Marshall emphasized the necessity of a timely forfeiture hearing as a baseline protection under the Due Process Clause, although it does not mandate a separate preliminary hearing Culley v. Marshall, 601 U.S. 377.
Furthermore, the Illinois Appellate Court in Rodriguez v. Brady, established that notice must be reasonably calculated to inform interested parties, aligning with all due process requirements. Rodriguez v. Brady, 2017 IL App (3d) 160439.
We litigate whether a governmental agency has properly provided notice to either the registered owner or the lien holder to comport with due process for any civil asset forfeiture.
The Innocent Owner/Lien Holder Defense
Throughout the United States, as well as in Illinois, an innocent owner or lien holder’s interest in property shall not be forfeited under any civil forfeiture statute. We litigate the “innocent owner/lien holder” defense and provide compelling evidence that the vehicle shall be released from the governmental agency. In matters involving the United States governmental agencies, if remission is granted to an innocent lienholder, the lienholder may receive: (1) the property itself, or (2) a payment up to the lienholder’s net equity, less the expenses and costs incident to the forfeiture and sale of the property. See 28 C.F.R. § 9.7(b)(2)(ii). If the lienholder opts to claim the property itself, the lienholder must pay the United States the costs and expenses incident to the forfeiture and any value of the property exceeding the lienholder’s net equity. See 28 C.F.R. § 9.7(b)(2)(i). If the lienholder agrees to the sale of the property, the lienholder may receive the amount up to their net equity, less the costs and expenses incident to the forfeiture and sale of the property. See 28 C.F.R. § 9.7(b)(2)(ii). The ruling official, at their discretion, may waive costs and expenses incident to the forfeiture. See 28 C.F.R. § 9.7(b)(2)(i) & (ii).
Common Scenarios
While civil asset forfeiture can apply to any type of property, it is particularly common with vehicles. Here are some common scenarios:
Vehicle Seizures
Vehicle seizures can occur either by a lawsuit or by a government agency. In a civil forfeiture lawsuit, the government is the plaintiff, the property is the defendant, and any person who claims an interest in the property is a claimant. In an administrative forfeiture, a government agency that seized the vehicle has strict time limits and noticing requirements designed to protect the interests and rights of property holders. However, note that the administrative forfeiture is to avoid burdening the courts with judicial actions when no one contests the forfeiture of the seized property. It is critical then to make the proper arguments to avoid forfeiture.
Cash Seizures
If you were carrying a large amount of cash in your vehicle, law enforcement may seize the cash and the vehicle under the suspicion of drug trafficking or other criminal activity.
Contraband Seizures
If your vehicle is found to contain illegal substances or contraband, the vehicle will be subject to forfeiture.
Traffic Violations
Even minor traffic violations can lead to vehicle seizures if law enforcement suspects other criminal activity.
Recovering Your Property Against Civil Asset Forfeiture
Litigating civil asset forfeitures require thought, ingenuity and tireless effort. Law enforcement agencies may seize your personal property and hold it for extended period of time. Law enforcement agencies also have a formidable legal resources at their disposal and you need a legal team well equipped and tactically experienced to fight to recover your property immediately and without delay.
At FS CORPS, based in Illinois, our experienced attorneys specialize in civil asset forfeiture matters. We understand the stress and frustration associated with having your property seized, and we are committed to protecting your rights and recovering your assets. With a deep knowledge of forfeiture laws and procedures, we provide aggressive representation to help you fight back against this government overreach.
Recent Civil Asset Forfeiture Cases
April 2025
Mercedes-Benz lawsuit reveals how NYC’s Scofflaw law violated the 14th Amendment rights of secured creditors.
November 2024
Illinois now requires preponderance of evidence to prove forfeitability, marking a shift in the standard for property seizure cases.
October 2024
In O’Donnell v. City of Chicago, the court reviewed vehicle forfeiture for unpaid parking tickets, focusing on property rights, co-ownership issues, and whether such forfeiture practices violate the Takings Clause of the U.S. Constitution.
September 2024
In TD Auto Fin. LLC v. County of Putnam, the court emphasizes lienholder notice requirements during vehicle seizures by law enforcement.