Civil asset forfeiture is, at its core, a legal process through which an individual’s property becomes the government’s property. It is accomplished in two distinct steps: seizure, when police take possession of property, and forfeiture, when a civil court determines the government can keep it.

Police are empowered to seize cash or other assets based on probable cause that they are connected in some way to certain criminal activity, even if no one is ever charged with a crime. In practice, this means a single police officer can take money and property based on the mere suspicion that it was used in the commission of a crime or that it was derived from certain criminal activity.

In all criminal cases, the burden is on the government to prove beyond a reasonable doubt that the accused is guilty. But freed from any connection to criminal prosecution, the litigation of property under Alabama’s civil forfeiture laws involves different standards of proof. Specifically, while the initial burden falls on the prosecutor, the low standard of proof in effect means that the suspect or innocent owner claimant must carry the burden of proving that the property is “innocent” of the alleged crime. This turns on its head the notion of “innocent until proven guilty” – a cornerstone of the American justice system – and seriously undermines the property and due process rights that are foundations of our nation’s democracy.

Even if a property owner is never charged with or found guilty of any crime, he might still need to hire a lawyer to get back the cash or other assets seized.



Jamey Vibbert, a car dealer in Dothan, became embroiled in civil asset forfeiture proceedings when prosecutors seized $25,000 he had been paid for two vehicles.

That’s what happened to Jamey Vibbert, a car dealer, past president of the local Rotary Club and member of the Chamber of Commerce in Dothan, Ala. His troubles started in 2015 when $25,097 mysteriously vanished from one of his bank accounts. A few days later, an investigator showed up at Vibbert’s office and told him that he had been indicted in connection with the sale of two vehicles that were involved in a drug investigation. One of his customers had allegedly used illegal drug profits to finance the purchases. A prosecutor later told the Dothan Eagle that the allegations against Vibbert were “kind of akin to money laundering because you know you’re taking dirty money.”

Read more about Jamey Vibbert from Alabama Appleseed

In addition to indicting Vibbert on the completely novel legal theory that he had violated the law when he titled the cars to someone other than the customer who paid him, authorities had seized the money he received for the vehicles, claiming it was the fruit of illegal activity.

Vibbert faced two separate legal proceedings: a criminal trial on the title fraud charge and a civil action related to the state’s attempt to having his money forfeited. At the criminal trial, the state claimed that Vibbert had titled the cars to a third party to help the buyer avoid having them seized by the state. Vibbert countered that he frequently titles cars to third parties, and the judge observed that he himself had recently paid for a car and put the title in his son’s name. He found Vibbert innocent.

The prosecutor who argued the case apologized to Vibbert, but the ordeal was far from over. Even though he had been cleared of wrongdoing, Vibbert was forced to hire a lawyer to fight for his cash in the civil forfeiture action after prosecutors refused to return it. Finally, a judge ordered its return, but he lost about a third of it to legal fees.

By then, Vibbert had lost his dealership – and his reputation. He dropped out of the Rotary Club. He stopped going to church for a year and withdrew from neighborhood social activities. He fell behind on house payments, and the bank foreclosed on a property he owned.

Eventually, he was able to open a new dealership, but because of the damage to his reputation, Vibbert, who used to love working the floor as a salesman, now keeps to a back office and deals with customers as little as possible.

“It’s still a nightmare,” Vibbert said. “It hasn’t ended. I worked so hard to build what I had. And the thing is, how can they do that and get away with it? When they finally found out the truth, they didn’t stop. They didn’t stop! It was just like, ‘We don’t care.’”

Roots in the drug war

Though civil asset forfeiture has its roots in admiralty law from centuries past, its modern practice dates to the beginning of the War on Drugs. Seeking to strike at drug kingpins who were in some cases – like the pirates of the Palmyra – beyond the reach of U.S. courts, Congress in 1984 amended the Comprehensive Drug Abuse Prevention and Control Act to create, among other things, the Department of Justice’s (DOJ) Asset Forfeiture Fund.

Under previous versions of the law, the proceeds of forfeited assets went to the Treasury Department. After the 1984 amendment, however, control of forfeited assets was for the first time in law enforcement’s hands.

Its use soon began to soar. The DOJ’s Asset Forfeiture Fund’s yearly income increased by 4,667 percent between 1986 and 2014, from $93.7 million in 1986 to $4.5 billion in 2014. Between 2001 and 2014, the DOJ and the Treasury Department’s forfeiture funds together took in almost $29 billion from civil asset forfeiture. Their combined annual revenue increased 1,000 percent over that period.

As the power of civil asset forfeiture to enrich law enforcement without raising taxes or battling lawmakers over more funding became clear, states started to get in on the action. The DOJ’s “equitable sharing ” program allowed local and state agencies to be awarded up to 80 percent of proceeds from civil asset forfeitures that they funneled through federal agencies. States like Alabama changed their own laws, making it easier for law enforcement agencies to profit from civil forfeiture.

Alabama law

Today, civil asset forfeiture in Alabama is governed by a morass of statutes that, in practice, leave the property owner responsible for proving the property’s innocence.

One Prohibition-era law allows seizure of prohibited liquors and beverages along with “conveyances, vehicles, and animals used to transport” them, provided the court is convinced the prohibited items were being transported for purposes of illegal sales. A second law, governing controlled substances, states that property can be seized under a variety of circumstances, such as during the course of an arrest or if there is probable cause that it was used, or may be used, in violation of controlled substance laws – including misdemeanors like possession of a single marijuana cigarette.

A third law governs the seizure of pistols from individuals who commit or attempt to commit crimes while armed, those who are forbidden to possess firearms, and those who possess loaded and concealed rearms without a permit. A fourth relates to gambling, allowing for the seizure of money used as bets or stakes, as well as gambling devices, records and vehicles used in gambling offenses. There are laws devoted to covering “obscene materials”; computers; surveillance devices; and weapons used in nighttime deer hunting. The Alabama Comprehensive Criminal Proceeds Forfeiture Act permits forfeiture of “any property, proceeds, or instrumentality of every kind, used or intended for use” in connection with any felony offense or a misdemeanor prostitution offense.

The burden of proof varies slightly under these laws and depending on the type of property and who owns it. In general, to succeed in forfeiture proceedings, the government must make only a prima facie showing of evidence that demonstrates to a judge’s “reasonable satisfaction” – an amorphous standard whose meaning varies depending on the venue – that the cash, vehicle, firearm, home or other property was used to facilitate criminal activity or was the fruit of it. If the government successfully makes that showing, it falls to the owner to prove the property is innocent.

“Innocent owners”

In the case of the so-called “innocent owner,” in some instances prosecutors do have to meet a higher legal standard. An “innocent owner” is someone whose property, unbeknownst to that person, is used by someone else to facilitate a crime – for instance, a father whose son borrows his car and uses it to transport stolen goods, or a grandmother whose grandson uses her house as a base from which to sell drugs.

In most civil forfeitures involving alleged drug offenses, innocent owners bear the burden of proving that they had no knowledge of and/or did not consent to the offense and could not have reasonably obtained knowledge of the intended illegal use. In some innocent owner cases, however, the burden is on the state to prove the innocent owner or lienholder had knowledge of, or gave consent to, the use of the property in furtherance of a crime.

But just because some innocent owners have a greater chance of getting their property back in some crimes versus other crimes, it doesn’t mean that prosecutors won’t try to take it.

On January 22, 2017, Jessie Giles lent his truck to his son Antwan, a corrections officer at an Alabama prison. Antwan was detained for allegedly attempting to bring food into the prison in violation of prison rules, and a search of the truck turned up illegal drugs and a handgun. The state commenced forfeiture proceedings against the truck and the handgun, naming both Jessie and Antwan in the suit.

Jessie was not accused of any crime, but it still fell to him to hire an attorney to prove that he had no knowledge of, and did not consent to, Antwan’s alleged use of his truck to bring drugs and a firearm to the prison where he worked. Both Antwan’s criminal case and the forfeiture case against Jessie’s truck were pending as this report was being written.

Guilty until proven innocent

Then there’s the story of Michael Coleman and Jacquard Merritt, two young African-American men who walked into Montgomery Regional Airport with about $120,000 cash one day in 2005, and walked out with nothing.

TSA agents became suspicious after a search of Coleman’s carry-on bag turned up tens of thousands of dollars in cash. Then they searched Merritt and found rolls of cash in his carry-on bag. After they claimed to find a residual amount of marijuana, a drug-sniffing dog “alerted” to the cash, and the DEA seized it.

Coleman and Merritt said they planned to use the money to buy and flip houses – a common practice at the height of the housing bubble. Though they were never charged with a crime, a federal court insisted they defend the innocence of their money.

They never saw it again. Having cleared the low “probable cause” bar set for seizure by police officers, prosecutors took responsibility for the forfeiture litigation and made short work of persuading a federal judge that the money should be turned over to the government.

Though the court found the drug dog’s “alert” to be of little value, and even though the amount of marijuana found was minute, the court felt the government had shown by a “preponderance of the evidence” – that is, more likely than not – that the money was connected to illegal activity.

As with 25 percent of the Alabama state cases reviewed in preparing this report, Merritt and Coleman (whose forfeiture proceedings took place in federal court) were never charged with a crime in connection with the event that led to the forfeiture of their property. But because they could not prove that their money had come from “legitimate” sources, they lost it for good. Based solely on “a common sense view of the realities of normal life” – and commenting derisively that neither man wore business attire at the airport – U.S. District Judge William Keith Watkins ruled that the “facts all point to illegal activity,” more specifically, drug trafficking. “[P]eople in legitimate businesses, as opposed to drug rings, do not travel with this amount of cash,” Watkins wrote.

Montgomery attorney Joe M. Reed, who represented Coleman and Merritt, is still angry about the case. “Where’s the probable cause here?” he said. “You can’t arrest somebody for carrying an unknown amount of cash. There’s no charge for that. It’s not illegal. In America, you can carry as much cash on you as you can get your hands on.”

Indeed you can. And the government, with vast resources and low legal hurdles, can take it.

Who are the targets?

Civil asset forfeiture laws were sold to the public as a way to go after drug kingpins, hitting them where it really hurts by taking the fruits of their illegal activity. But early on, as many law enforcement agencies began to prioritize seizures, journalists and academic researchers began to note that the laws were being used against ordinary people, sometimes in a discriminatory manner.

A 1992 investigation by The Orlando Sentinel revealed that nine of every 10 motorists who were stopped and stripped of their cash by police in Volusia County, Florida, were either black or Hispanic, and three out of four were never charged with a crime. In 1994, a researcher observed that the profile of suspects who have their assets seized “differ[s] greatly from those of the drug lords, for whom asset forfeiture strategies were designed.”

A 2009 study found that areas with high income inequality were targeted for civil forfeiture operations, likely because these police departments have limited funding and are inclined to use forfeiture to secure needed revenue.

In Alabama, it is possible to lose a car or cash if police find a marijuana cigarette during a routine traffic stop. Forty-two percent of all the civil asset forfeiture proceedings across the 14 counties studied for this report relate to marijuana offenses. In 18 percent of cases where criminal charges were filed, the charge was simple possession of marijuana and/or paraphernalia. And the median amount taken was about $1,300 – less money than it would typically cost to hire a lawyer to recover it, and certainly not the kind of cash associated with the kingpins who are civil asset forfeiture laws’ intended targets.

The “Equitable Sharing” program

Despite the light burden of proof and high likelihood of obtaining a default judgment in state court, Alabama law enforcement officers often prefer to funnel civil asset forfeitures through the federal government’s “equitable sharing ” program, where an astonishing 88 percent of civil asset forfeiture cases go uncontested.

In fiscal year 2015, Alabama state, local and joint agencies were awarded $3.1 million in cash and sale proceeds through the program – approximately $816,000 more than they received in state court proceedings.

Between 2000 and 2013, Alabama law enforcement agencies took in more than $75 million in DOJ equitable sharing funds.

Equitable sharing can proceed in two ways, neither of which requires a criminal conviction or even a charge.

The first is when assets are seized by joint task forces that include both state and federal officers, making these assets eligible for equitable sharing. Between 2009 and 2014, according to the DOJ, the vast majority of assets obtained through equitable sharing were taken through this process.

The second is by “adoption,” which allows Alabama law enforcement officers, at their discretion, to request that federal authorities take control of assets seized under state law and outsource the forfeiture to U.S. attorneys to litigate. When favorable judgments are obtained under either method, the federal government returns up to 80 percent to the Alabama agency that initiated the seizure.

In January 2015, then-U.S. Attorney General Eric Holder issued guidance prohibiting the use of adoption in most instances. However, his successor, U.S. Attorney General Jeff Sessions, rolled back these protections in July 2017, saying the shift would “make us more effective at bankrupting organized criminals and at safeguarding the property of law-abiding Americans.”

Despite Sessions’ assertion, there is ample reason to question whether civil asset forfeiture is an effective crime-fighting measure.

The most recent drug policy report from the Government Accountability Office, subtitled “Lack of Progress on Achieving National Strategy Goals,” points to its failures. In one recent study, researchers found that, while there is some statistical support for the idea that forfeiture leads to increased crime clearances, the impact is so small as to be immaterial. “The results,” they conclude, “undercut the argument that police retention of forfeiture funds is an essential element in the fight against crime.” Indeed, in a March 2017 report, the DOJ’s Office of the Inspector General found that in 56 of 100 Drug Enforcement Administration forfeiture cases it examined, “there was no discernible connection between the seizure and the advancement of law enforcement efforts.” Many of Sessions’ fellow Republicans, including Reps. Justin Amash (Mich.), Tim Walberg (Mich.), Jim Sensenbrenner (Wisc.) and Mark Sanford (S.C.), and Sens. Rand Paul (Ky.), Mike Lee (Utah) and Mike Crapo (Idaho) – along with a host of Democrats – disagreed with Sessions’ approach. Following his reinstatement of adoption, they condemned the practice or introduced various bills and budget amendments intended to severely restrict or end the practice.

Forum shopping

Equitable sharing presents an opportunity for forum shopping, where litigants seek to bring their case in the venue where they think they have the greatest likelihood of success.

Prior to the 2015-2017 suspension of federal adoption, Birmingham law enforcement agencies routinely sought adoption. Some officers made a practice of calling federal agencies from arrest scenes to seek permission to have the takings adopted, says former Assistant Jefferson County District Attorney Jerome Dees, who worked on civil forfeiture cases. Federal agencies encouraged this habit by cultivating relationships with local law enforcement agencies, he said.

At the same time, Dees said, Birmingham judges’ stricter-than-average view of the meaning of “reasonable satisfaction” meant that some forfeiture efforts failed, with property being returned and judges scolding police for seizing it in the first place.

Montgomery judges, in general, reportedly also take a strict view of property rights, leading law enforcement agencies there to prefer federal venues for forfeiture cases. Sometimes, they called federal agents from the scene of a seizure to spirit the money away for adoption. Other times, “cross-designated” officers serving simultaneously as state and deputized federal agents, stopped people under state law and seized their money under federal law.

Joe M. Reed, a Montgomery attorney who has represented dozens of clients in civil asset forfeiture proceedings, has challenged both practices and describes adoptive forfeiture as an “illicit money-laundering scheme perpetrated by federal and state law enforcement agencies.”