What Is Confiscation? Seizure, Innocent Owner Defense, and Claims

Confiscation is the legal process by which a government authority permanently takes private property, usually without paying the owner, because the property is tied to criminal activity. In the United States, the formal name for this process is forfeiture, and it runs on three separate tracks: criminal forfeiture that follows a conviction, civil forfeiture filed against the property itself, and administrative forfeiture handled entirely inside a federal agency. The track determines the burden of proof, the deadlines, and the defenses available to you, so the first thing to figure out after a seizure is which one you’re in.

The Three Ways the Government Takes Property

Criminal forfeiture is part of a criminal prosecution. The government writes a forfeiture demand into the indictment, and if the defendant is convicted, the sentencing court orders specific property forfeited. Because the action targets a person, it only reaches property belonging to the convicted defendant.¹ For federal drug offenses, the authority sits in 21 U.S.C. § 853, which requires forfeiture of property derived from or used to commit the offense after conviction.²

Civil forfeiture works very differently, and this is where most people get caught off guard. The lawsuit is filed against the property, not the person. No criminal conviction is required, and in many cases no criminal charge is ever filed. The government only has to show by a preponderance of the evidence (the “more likely than not” standard) that the property is connected to a crime.³ That is a far lower bar than the “beyond a reasonable doubt” standard used in criminal trials. Federal civil forfeiture under 18 U.S.C. § 981 reaches property involved in money laundering, fraud, and a long list of other federal offenses.⁴

Administrative forfeiture is the quietest and most common route. A federal agency can take title to seized property without ever going to court, provided the property is worth $500,000 or less and nobody files a timely claim to contest it.⁵ This is the track that swallows property when the owner ignores the notice letter or misses the filing deadline.

What Property the Government Can Take

Property targeted for forfeiture falls into three categories based on how it relates to the illegal conduct.

Contraband is property that is illegal to possess in the first place, such as certain controlled substances or unregistered machine guns. The owner has no recognized property interest in contraband, and the government can destroy it without any forfeiture proceeding.
Proceeds are assets acquired with money generated through criminal activity, like a house bought with fraud proceeds or a bank account funded by drug sales. The government has to trace the asset back to the underlying offense.
Instrumentalities are otherwise legal items used to carry out or facilitate a crime, such as a vehicle used to transport stolen goods or a computer used to commit wire fraud. When the government’s theory is facilitation, it has to prove a “substantial connection” between the property and the offense, not just a passing or incidental link.³

Houses and Land Get Stronger Protection

Real estate is treated separately. Under 18 U.S.C. § 985, all civil forfeitures of real property must go through a judge. The government cannot seize a home or land before a court enters a forfeiture order, and it cannot evict the owner or occupants while the case is pending. The government may file a lis pendens, which is a public notice that the property is subject to a legal action, and may inspect the property, but neither step counts as a seizure. Pre-forfeiture seizure of real estate is allowed only in narrow circumstances: either the owner gets a hearing with a meaningful opportunity to respond, or a judge finds probable cause plus exigent circumstances that make seizure necessary because less restrictive measures would not protect the government’s interest.⁶

Constitutional Limits on What Can Be Taken

The Fourth Amendment protects against unreasonable searches and seizures and requires warrants to be supported by probable cause.⁷ In practice, law enforcement has to establish a specific connection between an asset and a criminal violation before seizing it. A hunch that cash “looks suspicious” is not enough, though critics argue the probable cause threshold is sometimes applied loosely in civil forfeiture cases.

The Eighth Amendment’s Excessive Fines Clause caps how much the government can take. In 2019, the Supreme Court ruled unanimously in Timbs v. Indiana that this protection applies to state and local governments, not just federal agencies.⁸ The case involved a $42,000 vehicle seized after its owner was convicted of selling $400 worth of drugs. Any forfeiture grossly disproportionate to the gravity of the offense can now be challenged as unconstitutional, and courts at every level must take that proportionality seriously.

Notice and the Deadlines You Cannot Miss

After a seizure, the clock starts running. The seizing agency has to send written notice to anyone who may have an interest in the property within 60 days of the seizure.⁹ If the agency fails to send timely notice to the person the property was taken from and no extension applies, the government has to return the property. The agency also publishes a notice of seizure, which starts the clock for anyone who was not personally notified.

If no one files a claim by the deadline, the agency declares the property forfeited administratively. That declaration has the same legal effect as a federal court order.¹⁰ This is where silence is fatal. People lose property worth tens of thousands of dollars every year because they ignore the notice or assume someone else will handle it.

When a claim is filed, the government has 90 days to either file a formal complaint in federal court or return the property. If it misses that window and no extension is granted, it must release the property and cannot try civil forfeiture of the same property again for the same offense.³

There is also an outer limit. If you did not receive proper notice and the property was administratively forfeited, a motion to set aside the forfeiture must be filed within five years of the date the notice of seizure was last published.³ After five years, the forfeiture is generally final regardless of whether you knew about it.

How to Get Your Property Back

There are two paths to challenge a civil or administrative forfeiture, and they work differently. Confusing them or missing either deadline can cost you the property for good.

Filing a Claim

A claim is a formal assertion of your interest in the property that forces the government to prove its case in federal court. If you received a personal notice letter, the deadline is stated in the letter but cannot be earlier than 35 days after the letter was mailed. If you learned about the seizure only through published notice, the deadline is at least 30 days after the final publication date.¹¹ The claim has to identify the property, state your interest in it, and be signed under oath. No bond is required.³

Filing a claim is the only way to get a judge involved. If you think you are an innocent owner or that the government cannot prove the property’s connection to a crime, this is the route that matters. Once a claim is filed, the government must file a court complaint within 90 days or return the property.

Petition for Remission or Mitigation

A petition for remission asks the agency itself to return the property or reduce the forfeiture. It is an administrative request, not a court filing, and the agency has discretion over whether to grant it. You submit it to the seizing agency with a description of the property, evidence of your ownership such as titles or purchase receipts, and a statement of facts explaining your lack of involvement in the illegal activity.¹⁰ Petitions can generally be filed any time after notice until the property is forfeited, but submitting early matters because administrative forfeiture can move quickly.

The petition and the claim are not mutually exclusive. Filing both protects you on two fronts. The petition gives the agency a chance to resolve things without litigation; the claim preserves your right to a day in court if the petition is denied. If you file only a petition and it is denied, you may have already blown the deadline to file a claim.

The Innocent Owner Defense

The strongest substantive defense in a civil forfeiture case is the innocent owner defense. Under 18 U.S.C. § 983(d), an innocent owner’s interest in property cannot be forfeited. The catch is that the owner carries the burden of proving innocent ownership by a preponderance of the evidence.³

What counts as “innocent” depends on when you acquired the property. If you owned the property before the illegal conduct, you have to show you either did not know about the conduct or, upon learning about it, did everything reasonably possible to stop it. Reasonable steps can include notifying law enforcement or revoking permission for the person engaged in illegal activity to use the property. You are not required to take steps that would put anyone in physical danger.

If you acquired the property after the illegal conduct, you have to show you paid fair value and did not know, and had no reasonable cause to believe, that the property was subject to forfeiture. A special exception protects primary residences acquired through marriage, divorce, or inheritance, even if nothing was paid, as long as the home is not traceable to criminal proceeds.

This defense turns on documentation. Purchase records, loan documents, and evidence of legitimate income sources put you in a far stronger position than verbal explanations alone.

Getting Your Attorney Fees Back

Fighting a forfeiture costs money, and Congress built in a fee-shifting mechanism when the government loses. Under 28 U.S.C. § 2465, if you substantially prevail in a civil forfeiture case, the government must pay your reasonable attorney fees and litigation costs.¹² “Substantially prevail” generally means winning a dismissal with prejudice, summary judgment, or a verdict after trial. Settlements and voluntary dismissals without prejudice typically do not qualify.¹³

Two important limits. First, if you were convicted of a crime for which the property was subject to forfeiture, you cannot recover fees even if the property was never actually forfeited in the criminal case.¹² Second, this fee provision applies only to court cases. There is no authority to recover attorney fees when a seizure is resolved administratively.

1
U.S. Department of Justice. Types of Federal Forfeiture
2
Office of the Law Revision Counsel. 21 US Code 853 – Criminal Forfeitures
3
Office of the Law Revision Counsel. 18 USC 983 – General Rules for Civil Forfeiture Proceedings
4
Office of the Law Revision Counsel. 18 US Code 981 – Civil Forfeiture
5
Office of the Law Revision Counsel. 19 US Code 1607 – Seizure
6
Office of the Law Revision Counsel. 18 USC 985 – Civil Forfeiture of Real Property
7
Constitution Annotated. Amdt4.5.3 Probable Cause Requirement
8
Supreme Court of the United States. Timbs v. Indiana, 586 U.S. 146
9
Office of the Law Revision Counsel. 18 US Code 983 – General Rules for Civil Forfeiture Proceedings
10
eCFR. 28 CFR Part 8 – Forfeiture Authority for Certain Statutes
11
eCFR. 28 CFR 8.9 – Notice of Seizure
12
Office of the Law Revision Counsel. 28 USC 2465 – Return of Property
13
U.S. Department of the Treasury. Payment of Attorney’s Fees