For the first time, this edition of Policing for Profit documents the major procedural steps and deadlines from the moment of a seizure up to a forfeiture hearing for all state and federal civil forfeiture laws, including both federal customs law and the federal Civil Asset Forfeiture Reform Act of 2000, which governs all non-customs federal forfeitures. The section “Civil Forfeiture and Due Process” describes our findings, but readers can find flow charts describing each process in greater detail in the State Profiles and statute citations in Appendix B.

To compile our legal data, we primarily examined civil forfeiture statutes supplemented where necessary with applicable rules of civil procedure. These are the rules that govern any case in civil court, including contract disputes and personal injury lawsuits. While some civil forfeiture laws specifically dictate key steps in civil forfeiture litigation, as well as deadlines owners and the government must meet, most laws are silent on some aspects and instead either expressly or implicitly rely on the rules of civil procedure to determine each side’s obligations. In effect, civil forfeiture laws operate within the rules that govern other civil cases, and we draw on those rules accordingly, most often when determining the government’s deadlines to serve owners with legal complaints and the rules governing default judgments. ¹  In addition, most of our discussion focuses on states with civil forfeiture, excluding those with only criminal forfeiture (i.e., Maine, Montana, New Mexico, and North Carolina).

By relying on statutes, we describe only the minimum requirements set by state legislatures and Congress. In practice, law enforcement agencies or prosecutor’s offices may go above and beyond—or they may fall short. Moreover, courts may impose additional constraints on the government or grant owners leniency, either as a matter of case law or in individual instances. ²  Our analyses do not capture such variations from statutory requirements.

As with our grades, in states with multiple civil forfeiture statutes, we analyze those applying to controlled substances. And where forfeiture procedures differ by the type of property at issue or by property value, we document those applying to the most common properties forfeited, for which procedural requirements are typically more lax. In practical terms, this means we record requirements for personal property, such as cash and cars, and not those for real property (i.e., homes and other real estate). As our findings below show, real property is rarely forfeited. When it is, the rules, where different, are usually stricter. Similarly, we record requirements for property below dollar-value thresholds, such as $5,000, $20,000, or $50,000. ³  As described below, the typical forfeiture is a relatively small amount of cash. Meanwhile, where requirements differ by value, the rules for more valuable property tend to be more stringent.

Under any given civil forfeiture statute, multiple paths from seizure to a forfeiture hearing are possible. To simplify our analysis and to explore important due process concerns, we examined how these laws apply under specified circumstances. Most notably, we limit our analysis to forfeitures that start with a warrantless seizure, both because data presented below suggest many if not most forfeitures begin this way and because warrantless seizures pose a higher risk of erroneous deprivation. In addition, while civil forfeiture can be accompanied by criminal prosecution, we do not document that path unless mandated by statute. ⁴  Similarly, in states where civil forfeiture can be pursued either in rem or in personam, we document the in rem path. Finally, we do not attempt to comprehensively document all litigation avenues made possible by the rules of civil (or criminal) procedure, such as discovery or motions to dismiss. Instead, we focus on the steps mandated for each party by civil forfeiture statutes, looking to the rules of civil procedure only to fill in gaps.

We took other steps to simplify the presentation of often complex statutes and to ease comparisons across disparate procedures. For example, when recording how notice is provided to potential claimants, we focused on the rules for personal notice, not notice by publication. Civil forfeiture laws typically require both or allow notice by publication as an alternative if notice cannot be served personally. We also use standardized language to describe steps that are functionally similar but whose names differ by jurisdiction. In California, for example, the government files a “petition” for forfeiture, and in the District of Columbia, the government’s filing is called a “libel.” Both function as a “complaint” does elsewhere, and so we categorize them accordingly.