Seizure vs. Forfeiture: A Crucial Distinction

Although related, seizure and forfeiture are not interchangeable.  This difference is important.  Law enforcement lobbyists routinely conflate the two in their attempts to oppose forfeiture reform.

For instance, in 2015, the president of the California Police Chiefs Association argued that a reform bill considered by the California Legislature would affect the ability of police “to seize the assets of low-level criminals.” Less than a week later, the reform was voted down.

Seizure happens first.  It is done by police officers on streets and highways.  Seizure is the physical taking of property based on law enforcement’s belief that the property is associated with a crime.  If an officer has probable cause that the property is associated with a possible crime, then the officer can seize and take physical possession of the property.  The law enforcement agency stores the property in an evidence room or in an impound lot. Changes to seizure laws constitute only a small portion of IJ’s advocacy in litigation and legislative efforts.

If prosecutors decide to pursue the case, forfeiture happens next.  This is litigation and is done by prosecutors in courtrooms or as part of a plea bargain in law offices.  Forfeiture litigation is about whether title to property—already seized and in law enforcement’s physical possession—should be permanently transferred from the property owner to the government.  Almost all of IJ’s litigation and legislative efforts involve changing forfeiture laws.

In other states, law enforcement officers have argued that reforming forfeiture laws will prevent police from taking contraband and related property off the streets.  The claim is untrue.  Reform legislation does not directly change the daily work of police officers to seize contraband, cash and conveyances.  Instead, proposed reforms typically only alter prosecutors’ work and the punishment of losing property that the government may impose on (a) a suspect or (b) his spouse, parent or other innocent-owner claimant through forfeiture litigation.

More concretely, enacting IJ’s model legislation to abolish civil forfeiture or to require a criminal conviction as a prerequisite to forfeiture will not prevent officers from seizing property they suspect has links to criminal activity.  Instead, it merely affects the forfeiture litigation process.