UPDATED SEPTEMBER 5, 2019
Article by Daniel A. Levy, Esq.
Civil forfeiture actions in New Jersey are some of the most misunderstood cases that clients ask me about. Basically, the state of New Jersey can bring a civil action against your property, alleging that the property was involved in a crime. It’s bizarre, because the state is not suing the property owner, they are suing the physical property. And you get cases that have ridiculous names, like State of New Jersey v. Two thousand five hundred dollars, and State of New Jersey v. One 2009 Honda Civic, or even State of New Jersey v. One utility knife of approximately 3 inches in length. These are not made up – I’ve worked on all of those cases. And that is part of the whole confusion. Clients come to me and cannot understand why the police took their money or property and then sued their property.
Here is the basics of how civil forfeiture cases work in New Jersey: Pursuant to NJSA 2C:64-1, the State has the burden of proving that property was used (or intended to be used) to facilitate a crime, or was an integral part of criminal activity, or was the proceeds of a crime; the criminal activity existed or was planned; and that there is a link between the property and the criminal activity.
The state does NOT have to prove that anyone was actually guilty of a crime. This is baffling to many people who were either never arrested at all, or were arrested and the charges were dropped or dismissed. They think that they are cleared of wrongdoing and then learn that the police want to keep their money, car, even house. Also, this is a civil case, not a criminal case, so the state does not have to prove anything beyond a reasonable doubt. Rather, the standard is a “preponderance of the evidence”, which is just a fancy way of saying “what probably happened?” (i.e. is it more than 50% likely). In fact, if the person was found not guilty of the alleged crime, that is legally irrelevant to the forfeiture case. But if the person is found guilty or pleads guilty, then there is a rebuttable presumption that the property was used for a criminal purpose.
And it actually gets worse. If the state is successful in showing that the property was probably linked to the criminal activity, then the burden shifts to the property owner to prove his own innocents. Basically, the property owner would have to prove that the property had a legitimate use that was not criminal, or that they were just an innocent owner and had no idea that someone else was going to use their property to commit a crime (like if someone borrows a car to complete a drug deal). Often times, that is extremely difficult to do. How can a person prove that their own money, car, etc. was NOT intended to be used for a crime?
Sadly, this extremely broad law makes it very easy for the state to perpetrate corruption. After all, the state gets to keep whatever it seizes. So, for example, a police officer could seize a car or money, without even making an arrest, because they personally believe that the property was used for a crime. To defend their property, the owner would then need to participate in a whole civil litigation over the property, often at great expense. Many people simply cannot afford it, or they are too confused by the process to know that they need to hire a lawyer for help. And if they win, all they get is their property back… and they are out the legal costs.
Also, it is sometimes impossible for the owner to defend their property. This would occur when the owner is charged with a crime, but the criminal case is still pending. The state has to file a forfeiture petition within 90 days of seizing the property, but a criminal case could take much longer than that. If the criminal case is pending, the owner may be advised to not testify in the forfeiture case, which would prohibit them from defending the forfeiture.
Unfortunately, the best results in a forfeiture case is when the prosecutor decides to just give the property back, and refrain from filing the forfeiture petition. But if the petition is filed, most people will find themselves in a pretty bad spot and would do well to seek competent counsel.