Civil asset forfeiture is a controversial legal procedure and a growing concern across the nation. It’s the seizure of assets by law enforcement authorities from persons suspected of criminal involvement or activity – without necessarily filing any criminal charges against those persons. In June, Colorado Governor John Hickenlooper signed a controversial new law which restricts the way civil asset forfeitures are handled in this state.

To be precise, civil asset forfeiture is more than the mere seizure of someone’s assets. When the government takes any part of someone’s assets, it’s called “asset seizure.” Asset “forfeiture” is the legal process whereby the government takes legal ownership of assets it has seized. Property is forfeited when that process is complete and the legal title to the assets transfers to the government.

WHAT IS THE JUSTIFICATION FOR CIVIL ASSET FORFEITURE?

Supporters of civil asset forfeiture promote it as a tool for fighting organized crime and drug traffickers, since the procedure allows authorities to confiscate cash and other assets from narcotics traffickers and then use that cash to pay for the enforcement of drug laws. Critics of civil asset forfeiture contend that the innocent can have their right to property violated with few legal protections or due process rules to protect them.

Opponents of civil asset forfeiture have further contended that it creates a presumption of guilt rather than a presumption of innocence, and that it invariably leads to corruption and violations of citizens’ constitutional rights by police authorities. Thus, organizations such as the ACLU of Colorado urged Governor Hickenlooper to sign the controversial new restrictions. “Coloradans,” the ACLU declared, “want and deserve stronger protections when

“Coloradans,” the ACLU declared, “want and deserve stronger protections when property is taken by police.” The new measure was co-sponsored in the Colorado General Assembly by State Representative Leslie Herod and State Senator Tim Neville.

However, a number of Colorado law enforcement and local government officials insist that the new measure will impair law enforcement’s abilities in Colorado by reducing the resources available to the state’s local police agencies. “I think this is a solution looking for a problem,” Colorado Springs Police Chief Pete Carey told the Denver Post. Activists who focus on the fight against human trafficking also asked Governor Hickenlooper to veto the legislation, according to the Colorado Springs Gazette.

WHAT DOES THE NEW LAW REQUIRE?

The new statute requires police agencies to report information about asset seizures twice each year to the state. However, the law’s most controversial provision would prohibit local law enforcement agencies from receiving any forfeited assets from the federal government in cases where local and federal police work together and the money and property forfeited amounts to less than $50,000.

Colorado Springs Police Chief Carey said that in the past five years alone, his department has received $2 million in forfeitures from cases where Colorado Springs officers worked with federal law enforcement agencies. Chief Carey told the Denver Post, “Of those cases, 85 percent of them did not meet the $50,000 threshold. So that means 15 percent of that would be equitable sharing in the future.” In 2014, Colorado police agencies received about $2.8 million of the $13.5 million seized by federal law enforcement officials in Colorado that year.

Civil asset forfeiture was actually quite rare prior to 1984, when Congress approved the Comprehensive Crime Control Act and thus established a special fund that shares forfeited assets with the law enforcement agencies that helped seize those assets. Local police agencies that work with federal authorities are rewarded with a share of the forfeited assets through a program called Equitable Sharing. Soon after 1984, most states started establishing their own civil forfeiture laws.

WHAT WAS THE CIVIL ASSET FORFEITURE REFORM ACT?

Abuses quickly followed, and critics insisted that civil asset forfeiture is an unconstitutional violation of due process rights. In 2000, Congress passed the Civil Asset Forfeiture Reform Act. It requires federal prosecutors to prove “a substantial connection between the property and the offense,” but critics contend that the Reform Act has done little to stop abuses linked to civil asset forfeiture, and there are still no penalties for wrongful seizures and forfeitures. Louis Rulli, a law professor at the University of Pennsylvania and a leading forfeiture authority, told the New Yorker, “The protections our Constitution usually affords are out the window.”

The federal Equitable Sharing program allows local police across the nation to sidestep state-imposed forfeiture rules by deeming suspected criminal activity to be a federal crime and bringing in federal authorities. Equitable Sharing thus subverts the intent of legislatures that have restricted civil asset forfeiture at the state level. The new statute here in Colorado checkmates that problem by simply prohibiting participation in Equitable Sharing when the money and property forfeited amounts to less than $50,000.

Supporters of the new Colorado forfeiture statute say that the $50,000 threshold figure protects poor and average-income citizens from civil asset forfeiture abuse while still allowing local law enforcement agencies to profit when they work on cases against organized crime and major drug trafficking operations. The only states that have outlawed civil asset forfeiture entirely are North Carolina and New Mexico.

Criminal forfeiture is a different procedure and a penalty that can be imposed against a defendant after a criminal conviction. If you are charged or being investigated for any crime in Colorado, you could be targeted for civil or criminal asset forfeiture, and you’ll need to get some legal advice – and possibly criminal defense representation – from an experienced Denver criminal defense attorney.

Even though you can be targeted for civil asset forfeiture without necessarily being charged with a crime, it’s still wise to consult a Denver criminal defense attorney if you learn that you are the subject of any criminal investigation. If you’re contacted by the police, do not agree to an interview or provide a statement – even if police officers tell you that “everything will be fine if you just cooperate.”

Anything you say to the police can be used against you, so trust only your attorney if you are under investigation by any law enforcement agency for any reason. In some cases, of course, an investigation cannot be resolved and an arrest cannot be stopped. In this situation, make sure that you are represented by an experienced defense lawyer who can bring your case to its best possible resolution.

By: Dan Murphy

Denver criminal defense lawyer Daniel M. Murphy provides clients in the Denver area with aggressive and sympathetic legal representation. He graduated from the University of Denver Law School in 1994 and worked as a public defender before starting his own practice in 1996. He has defended clients accused of the most difficult criminal and alcohol-related charges. He also serves as a Moot Court Judge for Denver-area law students who rely on his mentorship.