Civil asset forfeiture allows the government to pursue cash, vehicles, real estate, and other property allegedly connected to criminal activity without first obtaining a criminal conviction against the owner. Under 18 U.S.C. § 983, the federal government generally must prove by a preponderance of the evidence that the property is subject to forfeiture.
**Please remember that this blog is for informational purposes only and is not legal advice. It is meant to provide general information to help you understand the issues when you consult with a lawyer; it is not a consultation in itself and does not create an attorney-client relationship. Always consult a qualified attorney about your specific situation before taking any action**
A property seizure can happen before an indictment or even when the owner is never criminally charged. That makes civil asset forfeiture confusing for someone who assumed a conviction would be required before the government could take cash, a vehicle, or another asset.
The forfeiture process also runs on its own deadlines. Understanding whether a matter is civil or criminal, administrative or judicial, and federal or state can determine what needs to happen next.
Table of Contents
What Is Civil Asset Forfeiture?
Civil asset forfeiture is a legal process used to pursue property allegedly derived from or connected to specified unlawful activity. In a federal civil forfeiture case, the proceeding is generally brought against the property itself.
Under 18 U.S.C. § 983(c), the federal government bears the burden of proving by a preponderance of the evidence that the property is subject to forfeiture. When the government’s theory is that property facilitated an offense, it must also establish a substantial connection between that property and the offense.
Since 2000, federal, state, and local forfeiture programs have generated at least $82 billion, according to the Institute for Justice’s 2026 Policing for Profit 4 report.
How Is Civil Asset Forfeiture Legal?
Civil forfeiture has long existed under federal and state law, although constitutional limits still apply.
In Timbs v. Indiana, the Supreme Court held that the Eighth Amendment’s Excessive Fines Clause applies to state forfeitures. A forfeiture may therefore face a constitutional challenge if it is grossly disproportionate to the underlying offense.
Civil forfeiture also uses a different standard of proof from a criminal prosecution. The government does not have to prove the owner’s criminal guilt beyond a reasonable doubt to establish forfeiture under the federal civil standard.
How Is Civil Forfeiture Different From Criminal Forfeiture?
Criminal forfeiture is pursued as part of a criminal prosecution and generally depends on a conviction for an offense that authorizes forfeiture.
Civil judicial forfeiture proceeds separately against the property. Federal administrative forfeiture is another process by which certain property may be forfeited through an agency proceeding, unless an interested person files a timely claim initiating judicial proceedings.
How Does Civil Asset Forfeiture Work?
A federal forfeiture case may begin when law enforcement seizes property believed to be subject to forfeiture. The government then provides notice explaining what was seized and how an interested party can respond.
If no claim is filed, eligible property may be forfeited administratively without a contested court hearing.
What Are the Deadlines After a Federal Seizure?
18 U.S.C. § 983(a) establishes important notice and claim deadlines.
In many federal cases, the government generally must send notice within 60 days of the seizure. If state or local law enforcement seized the property and transferred it for federal forfeiture, the general notice period is 90 days. Statutory exceptions and extensions can apply.
The notice also states when a claim must be filed. A timely claim stops the administrative forfeiture process and requires the government to decide whether to continue pursuing the property through judicial proceedings.
The Institute for Justice reports that 71% of DOJ forfeitures were administrative, meaning they did not result from a contested judicial forfeiture proceeding.
Can Civil Forfeiture Happen During a Traffic Stop or at an Airport?
Yes. Property seizures can arise during traffic stops, airport encounters, searches, and broader criminal investigations.
Carrying cash is legal. The legal issue is whether the government can establish the required connection between the property and activity that makes it forfeitable.
Records showing the source and intended use of funds may become important if that connection is disputed.
What Is the Equitable Sharing Program?
The Department of Justice’s Equitable Sharing Program allows qualifying state, local, and tribal law enforcement agencies that participate in federal investigations and forfeitures to receive a portion of federally forfeited assets.
Some state or local seizures can also enter the federal forfeiture system through adoption procedures, subject to federal policy and applicable state law.
Is Civil Asset Forfeiture Constitutional?
Civil forfeiture remains legally recognized, but individual seizures and forfeitures can raise constitutional issues.
Depending on the facts, those issues may involve due process, the Eighth Amendment’s Excessive Fines Clause, the legal basis for the seizure, or the amount of time the government takes to provide a forfeiture hearing.
What Did the Supreme Court Rule in Culley v. Marshall?
In Culley v. Marshall (2024), the Supreme Court held that due process requires a timely forfeiture hearing after personal property is seized.
The court did not require a separate preliminary hearing to determine whether the government could continue holding the property while the forfeiture case remained pending.
That distinction matters when evaluating whether delay itself has created a due process issue.
Is Civil Asset Forfeiture Legal in Virginia?
Virginia still has a civil forfeiture process, but state law includes an important limitation.
Under Virginia Code § 19.2-386.1(C), a state forfeiture action is generally stayed until the owner, or the person in whose custody the property was found, is found guilty of an offense that authorizes forfeiture. The statute contains exceptions, including certain circumstances involving plea agreements or failure to demand return of the property.
That means Virginia’s system should not be described as allowing every civil forfeiture to become final without any finding of guilt.
Federal forfeiture remains separate. Property connected to a federal investigation in Virginia may still be pursued under federal law.
How Do You Challenge Civil Asset Forfeiture?
The first step is to identify exactly which process is underway.
Determine which agency seized the property, preserve every notice and receipt, and identify the deadline for responding. Depending on the case, a challenge may dispute whether the property itself is forfeitable, raise an ownership defense, or address both.
What Is the Innocent Owner Defense?
18 U.S.C. § 983(d) provides an innocent-owner defense for qualifying property owners.
Someone who owned the property when the alleged unlawful conduct occurred may establish the defense by showing that they did not know about the conduct or, after learning about it, did what could reasonably be expected to stop the unlawful use.
The claimant bears the burden of proving innocent-owner status. The government still has its separate burden to establish that the property is subject to forfeiture in the first place.
What Is the Difference Between a Claim and a Petition for Remission?
A formal claim contests the forfeiture and requests judicial proceedings.
A petition for remission or mitigation asks the seizing agency for discretionary relief. It does not serve the same function as a claim and does not automatically preserve the right to challenge forfeiture in court.
That distinction can become critical when a response deadline is approaching.
What Should You Do If Your Assets Are Already Seized?
Start with the documents.
Identify which agency has the property and preserve the seizure receipt, notice letter, and anything else describing the forfeiture process. Note every deadline.
Then gather records that may establish ownership and the legitimate source of the property, including bank statements, business records, purchase documents, receipts, or other financial records.
Do not alter records or attempt to change the apparent source or ownership of assets after learning about an investigation.
Why Talk to a Federal Criminal Defense Attorney?
Asset forfeiture can overlap with money laundering investigations and with cases involving someone under federal investigation but not yet charged.
That overlap matters because decisions made in a forfeiture proceeding can affect a related criminal investigation.
A federal criminal defense attorney can review the seizure notice, identify applicable deadlines, evaluate the government’s forfeiture theory, and consider how the property dispute fits with any broader criminal exposure.
Key Takeaways
- Federal civil asset forfeiture can proceed without a criminal conviction against the property owner.
- Under 18 U.S.C. § 983, the government generally bears the burden of proving that property is subject to federal civil forfeiture.
- A timely claim can stop federal administrative forfeiture and move the dispute toward judicial proceedings.
- A claim and a petition for remission serve different purposes.
- The innocent-owner defense places a separate burden on the claimant asserting it.
- Virginia Code § 19.2-386.1 generally requires a qualifying finding of guilt before a state forfeiture action moves forward.
- Asset seizures can also be an early indication of a broader federal investigation.
Conclusion
Civil asset forfeiture can move separately from a criminal prosecution, and important deadlines may begin before anyone is charged.
If property has already been seized, identifying the agency, preserving the notice, and understanding the available response options should happen early. Missing an administrative deadline can limit the opportunity to challenge forfeiture before the underlying dispute ever reaches a judge.
Facing a Federal Asset Seizure?
KelleterLaw PC represents individuals and businesses in federal investigations involving asset forfeiture, financial allegations, and related criminal exposure.
Schedule a confidential consultation to discuss the property involved, the agency handling the seizure, and the decisions ahead.
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