Failure Points on the Path to a Civil Forfeiture Hearing

Once property has been seized, the government has it, and the onus is on its owner to take action to win it back. While state processes vary a great deal, there are generally one, two, or three major steps an owner must take to contest a forfeiture and reach a full hearing before a judge: filing a claim, filing a response to the government called an “answer,” and possibly additional steps created by administrative forfeiture proceedings. (As discussed below, some states allow owners to request pretrial hearings that may enable them to recover seized property, usually temporarily while the case is pending.) Only once owners have completed these steps will a hearing or trial be set, though other procedural steps not described here, such as discovery, may come first. Statutes typically give owners short deadlines by which to complete these steps, with little room for error.

Most civil forfeiture processes fall into one of two types, as illustrated by Figure 6: those that start with the government filing a complaint and those that start with owners making a claim. In 29 states, the government must take the first step toward forfeiture by filing a complaint in court, laying out its argument for why the property ought to be forfeited. (Uniquely, Florida also requires the government to pay a $1,000 filing fee and a $1,500 bond, payable to the owner if they prevail. ¹ ) Usually, the owner must respond to the government’s complaint by filing an answer.

Figure 6: Two paths to a civil forfeiture hearing

These charts show two types of paths to a civil forfeiture hearing after personal property is seized without a warrant: those that start with a government complaint and those that start with a claim by an owner. Most civil forfeiture laws fit one of these types, though all vary considerably in their details, including deadlines, whether owners can request pretrial hearings, and whether a criminal conviction is required. The State Profiles provide flow charts specific to each state and federal civil forfeiture statute.

Typical steps in complaint-first civil forfeiture processes

Complaint-first processes apply in 29 states: Alabama, Alaska, Arkansas, Colorado, Connecticut, Florida, Idaho, Indiana, Kentucky, Maryland, Massachusetts, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Jersey,* New York, North Dakota, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Wisconsin, and Wyoming. In Ohio, whether a claim or complaint comes first depends on the circumstances.

Typical steps in claim-first civil forfeiture processes

Claim-first processes apply to CAFRA* and customs* civil forfeitures and in the District of Columbia* and 16 states: Arizona, California,* Delaware, Georgia,* Hawaii,* Illinois,* Iowa,* Kansas, Louisiana, Michigan,* Minnesota,* Oregon, Rhode Island,* Tennessee, Washington,* and West Virginia.* Administrative procedures add steps to federal proceedings and those in Tennessee and Washington state; these are specified in the State Profiles. In Ohio, whether a claim or complaint comes first depends on the circumstances.

*If an owner fails to file a claim or answer, the government can forfeit administratively.

By contrast, in 16 states and the District of Columbia, as well as under CAFRA and customs law, owners must take the first step toward a civil forfeiture hearing by filing a claim with a court, a prosecutor, or the seizing agency. Only if owners make a claim properly and on time will the government have to file a complaint in civil court. Most often, owners must then respond with an answer. In these states, owners face two steps: a claim and an answer. (In two claim-first states, owners must pay a bond when making a claim. Hawaii’s bond is 10% of the property’s value or $2,500, whichever is greater, and Rhode Island’s is 10% or $250, whichever is greater. ²  The bond goes toward the government’s litigation costs should claimants lose.)

Property owners face still more steps to reach a courtroom under federal law, thanks to administrative forfeiture procedures. Federal law enforcement agencies such as the Drug Enforcement Administration, the Federal Bureau of Investigation, and Customs and Border Protection, can forfeit property administratively without judicial involvement. ³  This means the agency can determine on its own whether to forfeit the property, based on whether it believes “the facts supporting the administrative forfeiture satisfy the burden of probable cause.” ⁴  For owners to exit this process and pursue a court hearing, they must file a claim with the agency. This converts the administrative forfeiture into a judicial one, requiring the government to file a complaint in court.

As a result, when federal agencies pursue administrative forfeiture, owners must file two claims and an answer: one claim with the agency, a second claim following the government’s complaint in court, and then an answer following their claim. (For customs seizures, owners must also pay a bond worth 10% of the property’s value or $5,000, whichever is lower, to file the first claim. ⁵ )

The administrative path is the one most federal forfeitures follow. Indeed, the DOJ’s Asset Forfeiture Policy Manual declares that property eligible for administrative forfeiture should be pursued administratively, and data indicate this guidance is followed. ⁶  As we report below, from 2000 to 2023, administrative forfeitures made up 71% of DOJ forfeitures that resulted in revenue for the government. ⁷  And from 2000 to 2016, 96% of the Department of the Treasury’s forfeitures, which include those by CBP under customs law, were administrative. ⁸

Administrative forfeiture procedures in Tennessee and Washington state also set up additional hurdles on the path to a judicial hearing. In these states, filing a claim does not initiate a judicial proceeding, but rather an administrative one. In Tennessee, the claim will be heard by an administrative law judge. Only after an administrative ruling can owners appeal to a state court. ⁹  In Washington, claims will be heard by the chief law enforcement officer of the agency that seized the property or their designee—unless owners also file an additional request to have their case heard by a court. ¹⁰  Agency decisions can be appealed to a state court. ¹¹

As at the federal level, it appears the administrative path dominates in Washington state. In a 2024 report, the state auditor reviewed a non-random sample of 40 forfeiture cases and found that 39 were decided by the seizing agency. In 23 of the 39 cases, owners made a claim and lost. Four other cases resulted in a settlement. And the rest of the 39 were forfeited by default. ¹²

Regardless of whether owners must file a claim, an answer, or both, civil forfeiture laws generally give them little time to do so—and often far less time than the government is granted to file a complaint, as shown in Figure 7. While some states require prosecutors to move quickly, many others allow prosecutors 60 days or more to file a complaint, and they can often request extensions. A number of other states do not specify deadlines.

Owners’ deadlines tend to be shorter, and few civil forfeiture laws explicitly allow owners to seek additional time. Under customs law, owners have just 20 days from the day they receive notice to file the first claim. CAFRA allows 35 days. Michigan and Oregon also impose short deadlines of 20 and 21 days. Most commonly, states give owners 30 days to file a claim, though a few allow 60 or even 90 days, as in the District of Columbia. Deadlines to answer a complaint are similarly short: just 15 days in Louisiana and 20 or 21 days in another 13 states and the District of Columbia and under federal law. Again, the most common deadline is 30 days, with only a handful of states giving owners 45 days to respond.

Figure 7: Owner and government deadlines in civil forfeiture cases

^a Answer deadline is before or at first appearance in civil court, which occurs between 35 and 63 days after the forfeiture notice.
^b The only applicable deadline is the statute of limitations.
^c At any time, you can file a claim intervening in the forfeiture case against your property.
^d Owners can file a claim, though there is no firm deadline. The complaint deadline depends on the circumstances.
^e Federal forfeiture procedures first require owners to file a claim seeking judicial review (top arrow) and then require a second claim in civil court contesting the forfeiture (middle arrow).

Prosecutors and courts are not necessarily forgiving of owners who make good-faith efforts to contest a forfeiture but miss deadlines, as Cristal Starling learned. Even after being informed that her ex-boyfriend had been acquitted of the crime that prompted the seizure of her cash, federal prosecutors insisted her money be forfeited because her second claim was filed late. The district court agreed and granted a default judgment. Only with pro bono legal help from IJ was Cristal able to appeal to the Second Circuit and have the default judgment overturned. ¹³  In ruling for Cristal, the appellate court noted that prosecutors too had made a timing mistake, observing dryly, “It does not appear that the government holds itself to the scrupulous punctuality that it demands of a pro se litigant.” ¹⁴

The Second Circuit’s observation applies equally well to the district attorney in Augusta, Georgia, where Beverly Miller tried to fight for the return of a beloved truck belonging to her and her recently deceased husband. ¹⁵  Her truck landed in law enforcement hands after she lent it to her son, who in turn lent it to another person. When that person disappeared without returning the truck, Beverly and her son filed a report with the police. It turned out the borrower had been arrested on drug charges and the truck seized. Instead of returning it to Beverly, the prosecutor filed for forfeiture and sent her an undated notice. In response, Beverly submitted a handwritten claim explaining she owned the truck and had no connection to any crime, attaching her vehicle registration and the police report as proof.

Despite Beverly’s claim, the prosecutor moved ahead with a formal complaint against the truck, triggering a requirement that Beverly answer within 30 days. Mistakenly believing her claim was sufficient, Beverly did not file an answer, but she did respond to a notice of trial by appearing in court at the date and time listed. The courtroom was empty, as was a second courtroom to which she was directed by a bailiff. Staff in the district attorney’s office could not help. Finally, a court clerk surmised the trial must have been rescheduled and suggested Beverly await a new notice. After waiting months for a new notice that never came, Beverly hired an attorney, who discovered that, in fact, the court had entered a default judgment against her truck—two days after Beverly had tried to appear in court.

With her attorney’s help, Beverly achieved a small measure of vindication by winning a motion to vacate the default judgment and being declared an innocent owner. ¹⁶ But by then the truck had been sold. ¹⁷ The proceeds were later distributed to the district attorney and the seizing agency. ¹⁸