The SC Supreme Court has held that SC civil forfeiture laws are constitutional, which means that SC law enforcement will continue to seize money and property from motorists – including innocent motorists – for the foreseeable future.
Below, I’ll discuss:
- Why the SC Supreme Court was wrong about the constitutionality of SC civil forfeiture laws, and
- The procedure for getting your money back after police seize it on the side of the road.
Are SC Civil Forfeiture Laws Constitutional?
In Richardson v. Twenty Thousand Seven Hundred Seventy-One and 00/100 Dollars, the SC Supreme Court held that SC civil forfeiture laws are constitutional, reversing a circuit court judge who had declared the forfeiture laws unconstitutional.
According to the SC Supreme Court, it does not violate the state or US Constitution when:
- Law enforcement routinely targets motorists for the specific purpose of seizing money from their vehicles,
- Police seize money even if there is no criminal violation,
- Two-thirds of forfeiture victims are black males (although less than one-third of the state’s population is black),
- Law enforcement agencies rely on forfeiture funds for their operations (thereby incentivizing them to take money from motorists and rewarding the officers who seize the most money),
- Most forfeiture victims cannot afford to pay an attorney to recover the funds taken from them (because the attorney’s fees will be greater than the amount stolen), or
- The burden is placed on the forfeiture victim to prove that their money was legitimate and not related to drug activity.
Although most forfeiture victims cannot afford an attorney to get their money back, the SC Supreme Court says that it is okay for law enforcement to seize funds from innocent motorists because all they have to do is retain an attorney and get their money back.
Although the SC Supreme Court recognizes the problems with SC civil forfeiture laws, they essentially dodged the issues and declared that the legislature must fix the problems with the forfeiture laws, not the courts.
How do SC Civil Forfeiture Laws Work?
For now, we are stuck with SC civil forfeiture laws as they are written, and, if your money is taken by the police on the side of the road, you will need to work within the framework of SC Code § 44-53-530, which outlines the procedure for civil forfeitures (and how the police and prosecutor will divvy up the loot).
Consent Orders
In many cases, the police will present a motorist with a consent order and ask them to sign it, waiving their right to contest the seizure and voluntarily giving their money to the police.
Even when the motorist knows they haven’t done anything wrong, they may sign this form because, surrounded by stern-looking police officers with badges and guns and with blue lights flashing in their rear-view mirror, it’s easier to just say, “okay.”
If you are pulled over and a police officer is trying to take your money, do not consent. Do not sign anything. Do not interfere with the officers, but make it clear that you are not giving them permission to take and keep your property.
The Government has a “Reasonable Time” to File a Forfeiture Action
44-53-530 says that the prosecutor (solicitor’s office, attorney general, or their designee) must file a forfeiture petition “within a reasonable time period following seizure.”
There is no definition of “reasonable time period,” and, in some cases, the government never files the petition…
If a forfeiture petition is served on you, you will need to file an Answer within 30 days that denies the allegations in the petition, states the defenses that you will raise to the forfeiture action, and states any counterclaims you are making against the police (a § 1983 action, for example). If no petition is filed and served on you, you will need to file a lawsuit naming the government agency or agencies who took your money and asking the court to return the funds.
You can then ask for discovery – evidence to support the claims or defenses – through written interrogatories, requests for production, requests to admit, and depositions of key witnesses, and you will need to respond to any similar discovery requests from the government.
Defenses in SC Civil Forfeiture Laws
The government is only required to prove that there is probable cause (a very low standard) that the money, vehicle, or other property was used to facilitate drug sales or was proceeds from drug sales.
For example:
- Cash that is direct proceeds from drug sales,
- Cash that is found in close proximity to drugs, or
- A vehicle that was used to transport drugs or for the sale of drugs.
Then the burden shifts to the property owner to prove by a preponderance of the evidence (a higher standard than that imposed on the government) that their money or property was not related to drugs.
If police seize a large amount of cash from your vehicle and claim it was connected to drugs, you may need to provide documentation of where your money came from and why it was not in the bank – for example, bank records showing your withdrawals, receipts showing your cash tips from your job, or other documentation of the source of the cash that you were carrying.
There is also an “innocent owner” defense. For example, if your brother borrowed your car to drive to work, was arrested for selling drugs from your car, and law enforcement took your vehicle as a forfeiture, you may then have to go to court and prove that you did not know about your brother’s activities and did not loan him your car to sell drugs.
There may be other defenses based on the unique circumstances of your case, and, in some cases, we may be able to negotiate a return of a portion of your money even when we cannot definitively prove that you were innocent.
§1983 Actions and Punitive Damages
In some cases, you may be able to sue the police for their misconduct in wrongfully seizing your money or other property in a State Tort Claims Act or 42 USC § 1983 claim, and, in a § 1983 claim, you may be able to ask for punitive damages and payment of your attorney fees under 42 USC § 1988.
How Much Does a Forfeiture Attorney Cost?
Your attorney fees will depend on the facts of your case and the likelihood that your money can be recovered. Although, in most cases, you will pay a contingency fee of 1/3 or more, it could be an hourly rate, or it could be a flat fee.
Unfortunately, in most forfeiture cases the amount of money that can be recovered is just not enough to justify the costs of litigation and attorney fees. If you aren’t sure whether you can afford a forfeiture attorney, feel free to give us a call for a free consultation about your case.
Questions About SC Civil Forfeiture Laws?
The Charleston, SC civil rights attorneys at the Boles Law Firm can help you to respond to a forfeiture petition, file a lawsuit to recover your property, gather the evidence you will need in court, negotiate with the government, and recover the maximum compensation that you are entitled to under state or federal law for the forfeiture.
Call us at 843-576-5775 to schedule an appointment for a free consultation at our North Charleston or Walterboro offices or send us a message through our website.
