August 3, 2017

During his tenure as head of the Justice Department, former Attorney General Eric Holder had dialed back civil asset forfeiture—limiting its use to the most serious crimes. However, U.S. Attorney General Jeff Sessions has announced a return to pre-Obama era policies, effective immediately, regarding civil asset forfeiture. The new policy permits local law enforcement agencies to bypass state laws and regulations that place limits on asset forfeitures by allowing the federal government to acquire the seized assets (known as “adoption”) and then, via a review process, return up to 80% of the seized funds to the law enforcement agency.  The federal government retains the remaining 20% of the funds.

Civil asset forfeiture laws are on the books in nearly every state and at the federal level and they permit law enforcement officials to seize property that they believe has been acquired through, or involved in, criminal activity. This property includes cash, real estate, cars and other valuables. In instances of civil asset forfeiture, the owner of the property doesn’t even need to be proven  guilty of a crime or even formally charged with one.

While the bulk of asset forfeitures are related to drug dealing and organized crime, the federal asset forfeiture program applies to other violations of federal law (alleged or proven) as well. Civil forfeiture has been used by the Attorney General’s office, local sheriff and police departments, as well as entities like the Medicaid Fraud Control Unit, against healthcare professionals and organizations of all kinds, including physicians, pharmacists and pharmacy owners, pain management providers and clinics, and home health agencies, among others.

Though the Department of Justice is returning to a more aggressive stance on asset forfeiture, Attorney General Sessions’ policy has put in place some  restrictions and protections, including:

All seizures must be reviewed by the adopting federal agency for compliance with the law, particularly in instances of seizures made pursuant to exceptions to the Fourth Amendment’s warrant requirements.

State and local agencies seeking federal adoption of seized assets must provide additional information to federal legal counsel about the probable cause justifying the seizure.

Adoptions of cash in amounts equal to or less than $10,000 will occur “only if there exists some level of criminality,”  or with the express concurrence of the U.S. Attorney’s office.

Department attorneys must proceed “with an abundance of caution” in forfeiture cases involving personal vehicles and residences where title or ownership lies with persons not implicated in criminal conduct.

Attorney General Sessions’ full statement on asset forfeiture, order, and policy directive are available HERE.

Forfeitures can be challenged and timely consultation with counsel can be the key to the recovery of seized assets. Should you have any questions about asset forfeiture, please do not hesitate to contact any of the listed members of the FisherBroyles Pharmacy and Health Care Law team.

Brian Dickerson, FisherBroyles Partner
Brian E. Dickerson

Anthony Calamunci, FisherBroyles Partner
Anthony Calamunci

Nicole Waid, FisherBroyles Partner
Nicole Hughes Waid

Amy Butler, FisherBroyles Partner
Amy Butler

Katy Wane, FisherBroyles Partner
Katy Wane