Civil forfeiture poses a grave threat to property owners nationwide. Too often, it allows law enforcement to evade the basic safeguards of criminal process and put property owners in a lose-lose situation: either let the government keep their property or spend time and money trying to fight to get it back. For most people, the value of the property isn’t worth the cost of hiring a lawyer. Other people lack the resources to hire an attorney. At every turn, the government often has an overwhelming advantage.

Terry Abbott learned all of this the hard way. In 2015, police officers seized about $9,000 from him. He originally hired an attorney to defend against the government’s forfeiture lawsuit. But he couldn’t afford the mounting legal fees. So he continued without counsel. He asked for the help of a court-appointed attorney, but the trial court rejected his request and decided the government should get to keep his money.

On appeal, the Court of Appeals held that the trial court had jumped the gun and the government must prove its case at trial. The Court of Appeals also held that Abbott should be able to use some of the seized funds to hire defense counsel. It’s his money until the government potentially proves its case, after all.

The Indiana Supreme Court granted review of the case, and the Institute for Justice represented Abbott for the appeal. In a divided decision, the Indiana Supreme Court ruled that the government must prove it is entitled to keep seized property, but forfeiture victims do not have a right to use their seized funds to hire an attorney. Chief Justice Loretta Rush disagreed with the decision and opined that the exceptional circumstances in this civil forfeiture case require the state to appoint an attorney for the property owner.

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