#First forfeiture bill of particulars pro

And when states enact more procedural protections, state and local law enforcement can enlist the federal government to seize property for them in exchange for a cut, called “equitable sharing.” 12 The Federal Rules of Civil Procedure (the “Civil Rules”), which govern federal civil forfeiture actions, 11 provide few protections for property owners.

Property owners start at a disadvantage, but it gets worse. Since the action is civil in form, the federal government has a low burden: it need only prove the property “guilty” by a preponderance of the evidence.

#First forfeiture bill of particulars pro

Property cannot hire a lawyer or defend itself pro se, so its owner, though not a defendant, must intercede and contest the forfeiture. The government can thereby take ownership without formally accusing the owner of anything. The government brings proceedings against the property itself, rather than against its owner, under the legal fiction that the property is culpable due to its association with an alleged crime. 8Ĭrucially, a civil forfeiture action is in rem, not in personam. The federal government takes in billions of dollars each year through the practice, 7 assuming ownership of everything from cars to houses, cash to bitcoins. 6Ĭivil forfeiture-the proceeding that cost the tribe so much-is commonplace. The tribe, with reduced leverage, settled and ultimately gave up $6.2 million. the covenant of good faith and fair dealing with respect to both agreements.” 4 The court dismissed the tribe’s counterclaim as inappropriate in an in rem proceeding, since the money-not the tribe-was the nominal defendant. The Pueblo of Pojoaque challenged the civil forfeiture in court, filing a counterclaim alleging that the United States had violated “two non-enforcement agreements and.

government seized over $10 million earned by the tribe during the negotiation, claiming the money was the proceeds of illegal gambling. 2īut in 2018-after the tribe and state came to an agreement-the U.S. When its gaming agreement with New Mexico expired in 2015, the tribe received federal permission to continue operating its casinos while it negotiated a new deal with the state. Its reservation has a population of 2,712, and, like many tribes, the Pueblo of Pojoaque operates multiple casinos and resorts. The Pueblo of Pojoaque is a Native American tribe in northern New Mexico. Clark, the principal drafter of the Civil Rules, courts should remove the “interpretative barnacles” that have made it unnecessarily difficult for property owners to defend themselves in civil forfeiture actions. The civil forfeiture counterclaim finds strong support in the Civil Rules’ text, as well as in their historical context, purpose, and original public understanding. Though the great majority of federal courts to address the question have summarily dismissed property owners’ counterclaims in civil forfeiture actions, those courts are mistaken. This Comment explores an active circuit split and identifies an undertheorized way for property owners to vindicate their rights: counterclaims against the government. A creature of admiralty law, civil forfeiture draws on supplemental provisions of the Federal Rules of Civil Procedure with which many lawyers and federal judges are unfamiliar.

Yet the procedural mechanisms available to a property owner who wishes to contest a forfeiture are limited, complex, and strictly enforced. The government need not formally accuse its owner of any crime. Through civil forfeiture, the federal government can take ownership of property merely by proving it “guilty” by a preponderance of the evidence.